THIS IS A LEGAL DOCUMENT BY AND AMONG YOU (“LICENSEE”), AND VENDOR. PLEASE READ THIS AGREEMENT BEFORE USING THE SOFTWARE AND THE SERVICES. BY USING THE SOFTWARE YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO ACCEPT AND BE BOUND BY THIS AGREEMENT.
SOFTWARE LICENSE
THIS SOFTWARE LICENSE (“Agreement”) is made as of the Effective Date by, among, and between the company operating under the name of AdvancePro Technologies, (“We,” “Us”, “Our”, “vendor”, “Licensor” or “AdvancePro”) and you or the organization on whose behalf you are undertaking the agreement described below (“Customer”, “You”, or “Licensee”) in relation to the product and services associated with the software, AdvancePro.
W I T N E S S E T H:
WHEREAS, Vendor has developed and owns the computer software known as AdvancePro to provide an inventory and order management software solution for small to medium sized businesses.; and
WHEREAS, Licensee desires to obtain a license to access the Software, subject to the terms and conditions of this Agreement; and
WHEREAS, Vendor desires to grant Licensee a license to access the Software, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions set forth below, Licensee and Vendor hereby agree as follows:
ARTICLE I: DEFINITIONS:
Section 1.01 — Recitals: The above identification of parties and recitals are true and correct.
Section 1.02 — Definitions: The following definitions shall apply:
(1) Access: The term “access” and variants thereof (including, but not limited to, the terms “access”, “accessible” and “accessing”, in upper or lower case) shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.
(2) Associates: The term “Associates” shall mean an employee of Vendor or an independent contractor hired by Vendor.
(3) Authorized Person: The term “Authorized Person” shall mean employees of Licensee authorized by Licensee to access Confidential Information and individuals or entities who are authorized in writing by Vendor to receive Confidential Information and who agrees to maintain the confidentiality of such Confidential Information.
(4) Cancellation Notice: The term “Cancellation Notice” shall mean that written notice sent by one party to this Agreement to the other party to this Agreement seeking to cancel this Agreement because of breach by such other party.
(5) Concurrent Access: The term “Concurrent Access” shall mean concurrent access to the Product using the same Password.
(6) Confidential Information: The term “Confidential Information” shall mean all information concerning the business and technical plans of Vendor and all information in connection with the Services, the Product and this Agreement which is disclosed by Vendor to Licensee or learned by Licensee and which is not: (a) already known to Licensee; (b) conveyed to Licensee by a third party without restriction; (c) released by Vendor without restriction; (d) independently developed by Licensee; or (e) in the public domain.
(7) Defect: The term “Defect” shall mean programming errors which substantially impair the performance, utility and functionality of the Software as represented in the Documentation.
(8) Effective Date: The term “Effective Date” shall mean the date Licensee accesses the Product.
(9) Government: This Agreement shall be governed by and construed under the laws of the Province of Ontario, Canada.
(10) Licensee: The term “Licensee” shall mean the individual or entity referenced herein as Licensee.
(11) Password: The term “Password” shall mean that certain user name and password assigned by Vendor to each User for purposes of accessing the Software.
(12) Product: The term “Product” shall mean the access to the software and its upgrades granted to the Licensee by the Licensor and shall include all modules and peripherals, and services as quoted and invoiced.
(13) Rules: The term “Rules” shall mean laws, rules, regulations, orders, procedures or policies of Government or third parties as amended.
(14) Software: The term “Software” shall mean the executable code for that certain computer software developed and owned by Vendor as accessed by Licensee.
(15) Term: The term “Term” shall mean a period starting on the Effective Date and continuing until this Agreement is terminated or cancelled as provided under this Agreement.
(16) Unauthorized Access: The term “Unauthorized Access” shall mean any access to the Product except for the exclusive purposes of using the performance, utility and functions of the Product for internal business operation of Licensee, and training employees of Licensee in the use of the Product.
(17) Unauthorized User: The term “Unauthorized User” shall mean any user who accesses the Product for any other purpose than using the performance, utility and functions of the Product for internal business operations of Licensee and training employees of Licensee in the use of the Product.
(18) Users: The term “Users” shall mean the number of employees of Licensee authorized by Licensee to access the Product, as agreed to and signed by the Licensee in the AdvancePro Technologies proposal, excluding Unauthorized Users.
(19) ACCP: The term “ACCP” shall mean AdvancePro Customer Care Program which is a mandatory support service that the Vendor provides.
(20) Cloud: The term “Cloud” relates to the access of AdvancePro via its cloud service offering.
(21) Termination: The term “Termination” refers to the licensor withdrawing or cancelling the license keys given to the licensee. The license keys authenticate use of the software with each use.
ARTICLE II: SCOPE OF LICENSE:
Section 2.01 — Grant of License: Vendor hereby grants to Licensee a non-exclusive and non-transferable license to access the Software for the Term, subject to the terms and conditions of this Agreement.
Section 2.02 — Authorized Use: Licensee shall prevent Unauthorized Users from accessing the Product. Licensee shall prevent Unauthorized Access to the Product. Licensee shall promptly inform Vendor of any and all Unauthorized Access (or suspected Unauthorized Access) and Unauthorized Users (or suspected Unauthorized Users) of which Licensee has knowledge or suspicion. Access to the Product using third party software for the purpose of viewing, using or disclosing the internal structure of the Product; Concurrent Access; and modifications to the Product shall be deemed Unauthorized Access.
ARTICLE III: SERVICES:
Section 3.01 — Password: Vendor shall assign each User a Password for purposes of accessing the Software during the Term. The Password shall be used only by such User. All assignments of the Password by Licensee shall be void. Licensee shall not concurrently access the Software using the same Password. Licensee shall prevent Concurrent Access. Licensee shall be responsible for the confidentiality and maintenance of the Password. Modification and termination of the Password shall be subject to prior written approval of Vendor.
Section 3.02 – ACCP and Cloud Services: The Licensee agrees to pay the monthly or yearly recurring fees for the the mandatory ACCP or Cloud services according to the fee set on the original invoice. These fees are based number of users and are subject to increases or decreases with the additional or subtraction of users. Non-Payment may result in termination of this agreement subject to Article VIII of this Agreement.
Section 3.03 – Delivery of services are done through authentication of a valid license key which are provided to the Licensor upon agreement to the quotes and invoices provided by the Licensee to the Licensor. Non-payment of delivered services shall be subject to the Termination rules as stated in Article VIII of this Agreement.
ARTICLE IV: PAYMENTS AND FEES:
Section 4.01 — Fees: Licensee shall pay the Fee to Vendor in accordance with the payment terms set forth in the AdvancePro Technologies proposal signed by or acknowledged by the Licensee by way of fax, email, or verbal; and/or as stated on the invoice sent to the licensee by email, fax, or in hard copy. This will include any and all upfront license fees, professional services, ACCP, Cloud and modules.
Section 4.02 — Taxes: Licensee shall pay any and all applicable taxes (municipal, provincial or state, and federal) which may now or hereafter be imposed on accessing the Product or use of the Services by Licensee (excluding income taxes assessed against Vendor).
ARTICLE V: INTELLECTUAL PROPERTY:
Section 5.01 — Ownership and Title: Vendor shall own any and all rights, title and interests in the Product, including (without limitation): all customizations, enhancements, modifications and updates of the Software, ownership rights to any and all patents, copyrights, trademarks, and trade secrets in connection therewith.
The Software and Documentation are protected by Canadian copyright and trademark laws and international treaties. Licensee must treat the Software and Documentation like any other copyrighted material. Licensee may not: Modify or adapt the Software or merge it into another program, except where integration allows by Licensor design and intention; reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Software.
Section 5.02 — Confidential Information: Licensee shall not disclose Confidential Information except to Authorized Persons. Licensee shall not duplicate, use or disclose Confidential Information except as otherwise permitted under this Agreement. The Product shall be deemed Confidential Information of Vendor.
Each party agrees that it shall not disclose to any third party any information concerning the customers, trade secrets, methods, processes or procedures or any other confidential, financial or business information of the other party which it learns during the course of its performance of this Agreement, without the prior written consent of such other party. This obligation shall survive the cancellation or other termination of this Agreement.
Any use or disclosure of the software, or of its algorithms, protocols or interfaces, other than in strict accordance with this license agreement, may be actionable as a violation of licensor’s trade secret rights.
Section 5.03 — Trade Secrets: Licensee hereby acknowledges and agrees that the Confidential Information of Vendor derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts by Vendor under the circumstances to maintain its secrecy; and is a trade secret.
Section 5.04 — No Contest: Licensee shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks, and trade secrets of Vendor.
Section 5.05 — Reverse Engineering: Licensee shall not reverse engineer, decompile, disassemble or translate the Product or access the Product using third party software, without the prior written consent of Vendor. Licensee shall not allow the Product to be reverse engineered, decompiled, disassembled, translated, or accessed using third party software without the prior written consent of Vendor.
Section 5.06 — Modifications: Licensee shall not modify the Product and shall not allow the Product to be modified without the prior written consent of Vendor. Licensee shall not use the Product or any materials incident thereto to develop computer software without the prior written consent of Vendor. If the Product is modified, such modifications shall be the sole and exclusive property of Vendor and Vendor shall own any and all of the rights, title, and interests to such modifications and any resulting computer software, including (but not limited to) any and all copyrights, patents, and trade secrets related thereto.
Section 5.07 — Export: Licensee shall not export or re-export the Product and shall not allow the Product to be exported or perform any act in violation of any applicable law, including (without limitation) the Export Laws. The Product or Services shall not be used by Licensee to transfer the Data to either a foreign national or a foreign destination in violation of any applicable law, including (without limitation) the Export Laws.
Section 5.08 — Continuation: The terms and provisions of this Article V shall survive termination and cancellation of this Agreement.
ARTICLE VI: WARRANTY:
Section 6.01 — Software Warranty:
Licensor disclaims any and all implied warranties or conditions, including any implied warranty of title, non-infringement, merchantability or fitness for a particular purpose, regardless of whether Licensor knows or had reason to know of Licensee particular needs. No employee, agent, or distributor of Licensor is authorized to modify this warranty, nor to make any additional warranties.
SECTION 6.02 — EXPRESS WARRANTIES: LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT VENDOR (INCLUDING OFFICERS, ASSOCIATES, AGENTS AND DIRECTORS OF VENDOR) HAS NOT MADE OR GRANTED ANY EXPRESS WARRANTIES CONCERNING THE SERVICES AND THE PRODUCT.
SECTION 6.03 — WARRANTY LIMITATION: THE WARRANTIES SET FORTH IN SECTIONS 6.01 AND 6.02 ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY. THE WARRANTIES SET FORTH IN SECTIONS 6.01 AND 6.02 ARE LIMITED TO THE PRODUCT AND DO NOT APPLY TO ANY THIRD PARTY SOFTWARE OR TECHNOLOGY. EXCEPTING THE WARRANTY SET FORTH IN SECTION 6.01, VENDOR HEREBY DISCLAIMS AND LICENSEE HEREBY WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND ALL IMPLIED WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. VENDOR DOES NOT MAKE ANY WARRANTY AND LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM THE SUPPORT SERVICES. LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT USE OF SUPPORT SERVICES SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF LICENSEE AND SUBJECT TO THE RULES, THE POLICY STATEMENT AND THIS AGREEMENT. VENDOR SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR HARM OR DAMAGES RESULTING FROM OR ARISING OUT OF LICENSEE ACCESS TO THE PRODUCT.
Section 6.04 — Regulations: The Product shall not be used (directly or indirectly) to conduct or solicit the performance of any business or activity which is tortious or prohibited by law. Licensee shall comply with Rules.
Section 6.05 — Force Majeure: Vendor shall not be liable for any failure to perform its obligations or for any failure of the Software, service(s), and /or hardware because of circumstances beyond the control of Vendor. Such circumstances shall include (without limitation) any acts or omissions of any government or governmental authority, declarations of government, war, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, labor disputes, power failure, delays in transportation or deliveries of supplies or materials, laws, court orders, acts of God, computer failure, network downtime, electronic mail failure, telecommunication failure, failure of Licensee to cooperate with the reasonable requests of Vendor, misuse of the Software, service (s), and /or hardware by Licensee or a third party, misuse of the Product by Licensee or a third party, breach of this Agreement by Licensee, or any other events reasonably beyond the control of Vendor.
ARTICLE VII: INDEMNIFICATION:
Section 7.01 — Limitation of Damages:
Unless otherwise expressly stated herein, Licensor shall not be liable to Licensee for any consequential damages arising out of Licensor’s breach of this Agreement.
Vendor shall not be liable for any lost profits or consequential, exemplary, incidental or punitive damages under this Agreement (including, without limitation, in connection with (i) use or performance of Vendor Services; (ii) use, performance or operation of the Product; and (iii) loss of Data), regardless of the form of action, whether in contract or in tort, including negligence, regardless of whether Vendor has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable.
In no event will Licensor be liable to Licensee for any damages, including any lost profits, lost savings, or other incidental or consequential damages arising from the use or the inability to use the software (even if Licensor or an authorized dealer or distributor has been advised of the possibility of these damages, or for any claim by any other party.
SECTION 7.02 — LIMITATION OF LIABILITY:
Unless otherwise expressly stated herein, Licensor shall not be liable to Licensee for any consequential damages arising out of Licensor’s breach of this Agreement.
Section 7.03 — Vendor Indemnification: Licensee shall release, indemnify, defend and hold harmless Vendor (including officers, directors, agents, and Associates of Vendor), Vendor subsidiaries, Vendor affiliates and Vendor suppliers and distributors, from and against any and all losses, costs, claims, suits, obligations, demands, damages, liabilities, expenses and attorney and paralegal fees on account thereof resulting from or in connection with (i) access to the Product by Licensee (including, without limitation, any claim regarding use of the Product by Licensee in an infringing manner or any claim by third parties for breach of warranty, libel, slander, invasion of privacy or false advertising); (ii) the performance of the Product; (iii) the Services; (iv) Licensee failure to comply with the Rules or Licensee breach of the Rules; (v) the acts (or any failure to act) of Licensee hereunder; or (vi) any breach by Licensee of the obligations of Licensee hereunder. This Section 7.03 shall survive termination and cancellation of this Agreement. Licensee hereby accepts responsibility for, and shall be liable for, all access to the Software and use of Vendor Services in connection with the Password(s).
Section 7.04 — Licensee Indemnification: If a third party receives a judgment from a court of competent jurisdiction upholding claims that the Product violates trade secrets, proprietary information, trademark, copyright or any patent rights of such third party, Vendor shall perform one or more of the following actions (as determined by Vendor) within one year of the date of judgment in favor of such third party’s claim is rendered by a court of competent jurisdiction:
(1) Replacement: Replace the Product by delivering to Licensee a non-infringing software product or Documentation (as the case may be) of substantially equivalent functional and performance capability;
(2) Modification: Modify the Software or the Documentation (as the case may be) to avoid the infringement without substantially eliminating the functional and performance capabilities of the Product as described in the Documentation;
(3) Obtain License: Obtain a license for use of the Product from the third party claiming infringement for use of the Product by Licensee.
The remedies set forth herein shall be the sole and exclusive remedies of Licensee for any and all claims of indemnification under this Section 7.04.
ARTICLE VIII: TERMINATION:
Section 8.01 — Termination Limitations: This Agreement shall only be terminated or canceled as provided under this Article VIII. This Agreement shall be valid for the Term. Licensee may terminate this Agreement for convenience upon providing thirty (30) days advance written notice of termination to the other parties.
Section 8.02 — Licensor shall have the right to terminate this License if Licensee fails to perform any obligation required of Licensee under this Agreement, specifically; non-payment of invoices, unauthorized access to the product, unauthorized users and in general any violation of the terms and conditions as set forth in this agreement and subject to the terms and conditions as set forth in the AdvancePro Technologies proposal as agreed to and signed by the Licensee.
Section 8.03 – Notice of termination: Licensor shall have the right to terminate this Licensee without notice to the Licensee, in the event of non-payment or any other violations of this Agreement. This extends to the licensing of the software, professional services, modules, and the monthly ACCP or Cloud services. The Licensor is not responsible for any loss of data that may occur as a result of a disruption of services due to non-payment. A service fee of $500 will be charged to the Licensee to reinstate the agreement and the Product.
Section 8.04 — Cancellation: If a party violates its obligations under this Agreement, the other party may cancel this Agreement by sending Cancellation Notice describing the noncompliance to the noncomplying party and to the other party..
All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by certified mail, return receipt requested, electronic, by commercial overnight delivery services, or by hand to the parties at the respective addresses as set forth in any documentation between the two parties. For the vendor specifically to Suite 1207, 40-1110 Finch Ave. West, Toronto, ON M3J 2T2.
Section 8.05 — Access to the Product: Upon termination or cancellation of this Agreement, Licensee shall cease accessing the Product.
ARTICLE IX: MISCELLANEOUS:
Section 9.01 — Assignments: All assignments of rights under this Agreement by Licensee without the prior written consent of Vendor shall be void.
Section 9.02 — Entire Agreement: This Agreement contains the entire understanding of the parties and supersedes previous verbal and written agreements between the parties or their agents concerning the subject matter herein.
Section 9.03 — Amendments and Modifications: Vendor may modify this Agreement from time to time in the exclusive discretion of Vendor. Such modifications shall be deemed accepted and approved by Licensee, shall apply to the Product and Services, and shall be binding upon Licensee upon notice to Licensee pursuant to Section 9.09. Alterations, modifications or amendments of a provision of this Agreement by Licensee and Vendor shall not be binding unless such alterations, modifications or amendments are in writing and signed by authorized representatives of Vendor and Licensee.
Section 9.04 — Policy Statement: Licensee shall comply with the Policy Statement. Vendor may modify the Policy Statement from time to time in the exclusive discretion of Vendor. Such modified Policy Statement shall be deemed accepted and approved by Licensee, shall apply to the Product and the Services and shall be binding upon Licensee upon notice to Licensee pursuant to Section 9.09.
Section 9.05 — Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.
Section 9.06 — Captions: The headings and captions of this Agreement are inserted for reference convenience and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph or provision. Pronouns and nouns shall refer to the masculine, feminine, neuter, singular or plural as the context shall require.
Section 9.07 — Public Announcement: All public announcements of the relationship of Vendor and Licensee under this Agreement shall be subject to the prior written approval of Vendor.
Section 9.08 — Governing Law: Licensor consents and agrees that all legal proceedings relating to the subject matter of this Agreement shall be maintained in courts sitting within the Province of Ontario unless Licensor changes headquarters, and Licensor consents and agrees that jurisdiction and venue for such proceedings shall lie exclusively with such courts. Service of process in any such proceeding may be made by certified mail, return receipt requested, directed to the respective party at the address at which it is to receive notice as provided herein.
Section 9.09 — Notices shall be deemed delivered when delivered electronically (Email) or by commercial overnight delivery services, by Certified or Registered Mail – Return Receipt Requested – or by hand to the address set forth in the AdvancePro Technologies proposal as agreed to and signed by the Licensee. Notices shall be deemed given on the date notice is delivered electronically (in case of notices delivered to Licensee) or on the date of receipt – as evidenced in the case of Certified or Registered Mail by Return Receipt. Notices delivered to Licensee electronically (including, without limitation, electronic mail) shall be deemed written notices.
Section 9.10 — Waiver: Waiver of breach of this Agreement shall not constitute waiver of another breach. Failing to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the party waiving such provision.
Section 9.11 — Employee Pirating: Licensee shall not induce or solicit (directly or indirectly) any Associate to leave the employment of Vendor or engage the services of an Associate without the prior written consent of Vendor.
Section 9.12 — Relationship of the Parties: It is agreed that the relationship of the parties is primarily that of licensee and licensor. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.
Section 9.13– Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of [Toronto, Ontario, Canada]. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
Section 9.14 — Litigation Expense: In the event of litigation arising out of this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).
Section 9.15 — Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy for Vendor. In addition to other rights which may be available, Vendor shall have the right of specific performance, injunction or other equitable remedy (including, but not limited to, the right to such equitable remedies prior to or pending arbitration) in the event of a breach or threatened breach of this Agreement by Licensee.
Section 9.16 — Acceptance: This Agreement is deemed as accepted by the Licensor upon downloading the software, use of the software, and/or clicking the checkbox agreeing to the terms and conditions as stated in this agreement without exception.
(DBA) AdvancePro Technologies
Toronto, Canada
