SOFTWARE LICENSE AGREEMENT
∗∗∗ PLEASE READ CAREFULLY AS PROCEEDING WITH THE PURCHASE CONFIRMS YOUR ACCEPTANCE ∗∗∗
LICENSING TERMS AND CONDITIONS
Licensee represents that it is licensing the Licensor Software Application (“Licensed Software”) under this Software License Agreement (“Agreement”) for its own internal business purposes. Accordingly, Licensor grants to Licensee a non-exclusive, personal, non-transferable license to use the SOFTWARE in accordance with the following terms and conditions:
1. DEFINITIONS. As used in this Agreement:
“Affiliates” means, with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities (but only as long as such person or entity meets these requirements.
“Confidential Information” means any and all data, material and information which: (i) are designated in writing or orally as confidential by the disclosing party at the time of disclosure; (ii) are clearly treated as confidential in the ordinary course of business by the disclosing party; or (iii) are data, material or information that a reasonable person, having regard to the context of disclosure, the nature of the information, or circumstances of this Agreement, would regard as confidential.
“Documentation” means the user’s manuals or documentation provided to Licensee along with the Licensed Software or the Proposal.
“Donor Transaction Data” shall mean information such as amount of a donation, date and time of donation, type of payment and may include the last four digits of a donor’s credit card, but specifically excludes personal information of donors, as such as their name, age or address.
“Executable Code” means the fully compiled version of a software application that can be executed by a computer or accessed by means of a web browser and used by an end user without further compilation.
“Transaction Fee” means the fee applicable for each financial transaction processed through the Licensed Software, as set forth in the Proposal.
“Intellectual Property Rights” means all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights, confidential information and other proprietary rights.
“License Fees” means the fees payable for the Licensed Software as set forth in the Proposal.
“Licensed Software” means the software application or applications described in the Proposal, and any modified, updated or enhanced versions of such applications that Licensor may provide to Licensee pursuant to this Agreement or to a separate maintenance and support agreement.
“Proposal” means the proposal issued by Licensor to Licensee, setting forth the name and description of the Licensed Software (including the number of Registered Users licensed to use the Licensed Software) and the pricing for the Licensed Software.
“Source Code” means the human-readable version of a software application that can be compiled into Executable Code.
2. LICENSE GRANT.
Subject to the terms and conditions of this Agreement (including Licensee’s obligation to pay the License Fees plus any applicable Transaction Fees), Licensor grants to Licensee, a non-exclusive, non-transferable license to use the Licensed Software in Executable Code form solely for Licensee’s internal business purposes and in accordance with the Documentation and the limitations set forth herein. Licensee may access and use the Licensed Software only within the scope of the License. The scope of the License is determined by the number of registered users for whom Licensor has purchased a license (each a “Registered User” and collectively the “Registered Users”).
3. RESTRICTIONS ON USE.
Licensee acknowledges that the Licensed Software and its structure, organization and Source Code constitute valuable trade secrets of Licensor and its suppliers. Accordingly, Licensee agrees not to (a) modify, adapt, alter, translate, or create derivative works from the Licensed Software; (b) merge the Licensed Software with other software other than as permitted by Licensor; (c) sublicense, lease, rent, loan, or otherwise transfer the Licensed Software to any third party, (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the Source Code for the Licensed Software; or (e) otherwise use or copy the Licensed Software except as expressly allowed under Section 2.
4. PROPRIETARY RIGHTS.
4.1 Licensor and its suppliers hold and retain all rights and interest in and to all the software and other intellectual property that are necessary to provide the Licensed Software, including, but not limited to, all Intellectual Property Rights associated therewith. Licensee’s rights are limited to those specifically provided in this Agreement.
4.2. Licensee will retain exclusive title and Intellectual Property Rights in and to all Donor Transaction Data collected by Licensor in relation to the Licensed Software. Subject to the confidentiality provisions of this Agreement, Licensee hereby grants to Licensor a royalty-free, perpetual license to use the Donor Transaction Data as it deems useful or necessary it its business.
4.3 Licensee acknowledges and agrees that Licensee does not have any legal interest in any of the assets, technology, property, or equipment that are used to provide the Licensed Software, and Licensee will not as a result of this Agreement, acquire any right whatsoever to all or any part of the Licensed Software, except the limited right to access and use the Licensed Software within the limits and subject to the restrictions established by this Agreement.
5. USE AND ACCESS TO THE LICENSED SOFTWARE
5.1 The Licensee acknowledges and agrees that the Licensee is responsible for obtaining its own access to the Internet and that Licensor shall not provide such access or any services in relation thereto. The Licensee acknowledges and agrees that Licensor will not be responsible for any communication failure or interruption in service caused by a third party communications provider.
5.2 The Licensee shall take all reasonable steps to protect the Licensed Software from any unauthorized access, interference, hacking, phishing, copying or use. The Licensee shall ensure that it and its Registered Users comply with all duties, obligations and restrictions imposed on the Licensee by this Agreement in its or Registered Users’ use of the Licensed Software. The Licensee acknowledges and agrees that it shall be responsible and liable for all uses made by it or its Registered Users of the Licensed Software, and shall enforce each Registered User’s compliance therewith.
5.3 The Licensed Software is exclusively reserved for the use of the Licensee and its Registered Users who have been granted authorization for access through the issuance of user identifications (including usernames and passwords) (“User Identification”). No other persons other than Registered Users may access or use the Licensed Software. The Licensee acknowledges and agrees that it shall be solely responsible for supplying User Identifications to Registered Users.
5.4 The Licensee acknowledges and agrees that it owns all User Identifications and accordingly is solely responsible and liable to maintain the security and confidentiality of all User Identifications. Furthermore, the Licensee acknowledges and agrees that it shall be responsible for each and every use of the Licensed Software which occurs in conjunction with an User Identification, and that Licensor is authorized to accept an User Identification as conclusive evidence that the Licensee, or a Registered User, as the case may be, has used, accessed, utilized, or otherwise employed the Licensed Software.
5.5 The Licensee acknowledges that there are third-party providers, including (but not limited to) Salesforce.com, that offer products and services related to the Licensed Software, including products and services that work in conjunction the Licensed Software (such as by exchanging data with the Licensed Software or by offering additional functionality within the user interface of the Licensed Software through use of the Licensed Software’s application development interface). The Licensee hereby gives consent to Licensor to provide such third-party providers access to electronic data or information submitted by the Licensee (or by Licensor upon the Licensee’s request) onto the Licensed Software (“Licensee Information”) if and when required. Licensor does not provide any representation or warranty in relation to such third-party providers or any of their products or services. For certainty, any exchange of data or interaction between the Licensee and a third-party provider, and any purchase by the Licensee of any product or service offered by such third-party provider, is solely between the Licensee and such third-party provider. Licensor shall not be responsible or liable for any third-party provider or their products or services.
5.6 The Licensee agrees that it will not attempt to, or permit its Registered Users to, enter restricted areas of Licensor’s computer system or perform functions that it is not authorized to perform pursuant to this Agreement. Licensor may, without notice, temporarily suspend the Licensee’s, or any of its Registered User’s, access to the Licensed Software by deactivating any User Identification or links to the Internet if Licensor reasonably suspects that the Licensee, or any of its Registered Users, is obtaining unauthorized access to Licensor’s other systems or information, or is using the Licensed Software in any other inappropriate manner. These suspensions will be for such periods of time as Licensor may, at its sole discretion, determine is necessary to permit the thorough investigation of such suspended activity. Notwithstanding any other provision in this Agreement, Licensor may terminate this Agreement, or any portion of the licenses granted herein, immediately without notice it if is determined that the Licensee, or its Registered Users, have undertaken such unauthorized activity or if such unauthorized activity cannot be reasonably explained.
5.7 Licensor has the right to monitor, record and store all of the Licensee’s or its Registered Users’ activities in connection with the Licensee’s or its Registered Users’ use of the Licensed Software, and to extract transaction logs from the recorded activity for billing purposes. Licensor employees may at all times access the stored information to the extent necessary to conduct maintenance of the Licensed Software and to provide implementation or support services under this Agreement.
5.8 Upon request by the Licensee, Licensor may, at its sole discretion, assist the Licensee by submitting Licensee Information onto the Licensed Software. The Licensee shall only provide to Licensor Licensee Information which the Licensee owns or is authorized to utilize in the manner that such Licensee Information will be utilized within the Licensed Software. The Licensee shall remain solely responsible for all Licensee Information.
6. LICENSE FEES AND PAYMENT
Licensee will pay License Fees to Licensor in accordance with the Proposal. All payments must be made in Canadian dollars. The License Fees exclude all applicable sales, use and other taxes and Licensee will be responsible for payment of all such taxes (other than taxes based on Licensor’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of the License Fees or the delivery or license of the Licensed Software to Licensee. Any portion of the License Fees that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
7. WARRANTIES
7.1 Performance. During the Term of this Agreement, Licensor warrants that the Licensed Software, when used as permitted under this Agreement and in accordance with the instructions in the Documentation (including use on a computer hardware and operating system platform supported by Licensor), will operate substantially as described in the Documentation. Licensor does not warrant the Licensee’s use of the Licensed Software will be error-free or uninterrupted. Licensor will, at its own expense and as its sole obligation and Licensee’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Licensed Software reported to Licensor by Licensee in writing during the Software Warranty Period. Any such error correction provided to Licensee will not extend the original Software Warranty Period.
7.2 Disclaimers. THE EXPRESS WARRANTIES IN THIS SECTION 7 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE LICENSED SOFTWARE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSEE ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT.
8. INFRINGEMENT CLAIMS.
Licensor will defend at its own expense any action against Licensee brought by a third party to the extent that the action is based upon a claim that the Licensed Software infringes any Canadian intellectual property rights, and Licensor will pay those costs and damages finally awarded against Licensee in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Licensee notifying Licensor promptly in writing of such action, Licensee giving Licensor sole control of the defense thereof and any related settlement negotiations, and Licensee cooperating and, at Licensor’s request and expense, assisting in such defense. If the Licensed Software becomes, or in Licensor’s opinion is likely to become, the subject of an infringement claim, Licensor may, at its option and expense, either (a) procure for Licensee the right to continue using the Licensed Software, (b) replace or modify the Licensed Software so that it becomes non-infringing, or (c) accept return of the Licensed Software and give Licensee a refund for the License Fees paid by Licensee less a reasonable allowance for the period of time Licensee has used the Licensed Software. Notwithstanding the foregoing, Licensor will have no obligation under this Section 8 or otherwise with respect to any infringement claim based upon (i) any use of the Licensed Software not in accordance with this Agreement or for purposes not intended by Licensor, (ii) any use of the Licensed Software in combination with other products, equipment, software, or data not supplied by Licensor, (iii) any use of any release of the Licensed Software other than the most current release made available to Licensee, or (iv) any modification of the Licensed Software by any person other than Licensor. THIS SECTION 8 STATES LICENSOR’S ENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
9. LIMITATION OF LIABILITY.
EXCEPT FOR A BREACH OF SECTION 11, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT. LICENSOR’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE LICENSED SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF LICENSE FEES PAID TO LICENSOR IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE TIME THAT THE CAUSE OF ACTION AROSE.
10. TERM AND TERMINATION
10.1 Term. The term of this Agreement will begin on the start date indicated in the Proposal and will continue until the termination date indicated on the Proposal (the “Term”), unless terminated earlier pursuant to Section 10.2. This Agreement shall automatically renew for additional one (1) year terms, unless either party provides the other notice of its intent to terminate the Agreement sixty (60) days prior to the end of the then current Term.
10.2 Termination by Licensor. Licensor may terminate this Agreement, effective immediately upon written notice to Licensee, if (a) Licensee breaches any provision in Section 3 of this Agreement; (b) Licensee fails to pay any portion of the License Fees when due; or (c) Licensee breaches any other provision of this Agreement and does not cure the breach within ten (10) days after receiving written notice thereof from Licensor.
10.3 Termination by Either Party. Either Party may terminate this Agreement, upon thirty (30) days’ notice, if the other Party is liquidated or dissolved, or becomes insolvent, or suffers a receiver or trustee to be appointed for it, or makes an assignment for the benefit of creditors or institutes or has instituted against it any proceeding under any law relating to bankruptcy or insolvency or the reorganization of relief of debtors.
10.4. No Refunds. Licensee understands and agrees that the Licensee Fees paid hereunder are annual fees and that unless Licensee terminates this Agreement based on a proven material breach hereof by Licensor, no refund of the License Fees shall be provided to Licensee upon termination.
10.5 Survival. Sections 1 (“Definitions”), 3 (“Restrictions on Use”), 4 (“Proprietary Rights”), 9 (“Limitation of Liability”), 10 (“Term and Termination”), 11 (“Confidentiality”) and 12 (“General”) will survive termination of this Agreement for any reason.
11. CONFIDENTIALITY
11.1 Each party will take reasonable steps to maintain the confidentiality of the other party’s Confidential Information and at least the same precautions as it takes to prevent the disclosure of its own Confidential Information. Each party agrees that it will provide access, to the other party’s Confidential Information only to those of its affiliates, directors, officers, employees and professional advisors under a similar obligation of confidentiality (any and all of the foregoing being hereinafter referred to as “Representatives”), who need this access to further this party’s rights and obligations under the Agreement.
11.2 Each party will use the Confidential Information only to perform the party’s obligations or exercise its rights under this Agreement during the Term, and will take all reasonable precautions with the other party’s Confidential Information so as to prevent its unauthorized disclosure. Notwithstanding the foregoing, either party may disclose the other party’s Confidential Information pursuant to, and only to the extent of, a requirement of a governmental department, agency or commission or if disclosure is otherwise required by operation of law or in any legal, administrative or regulatory proceeding, provided that that party making this disclosure gives the other party written notice of required disclosure as soon as it is legally permissible to do so and where practical, an opportunity to obtain a protective order or other appropriate remedy with respect to this disclosure.
11.3 The obligations of confidentiality will not apply to Confidential Information where Confidential Information: (i) is or becomes publicly available other than through the fault of the party; (ii) is in the rightful possession of the other party (free of any obligation to keep it confidential) prior to its receipt from the disclosing party; or (iii) is rightfully obtained by the other party from a third party or otherwise without an obligation of confidentiality.
11.4 Licensee acknowledges and agrees that Licensor does not collect, and shall not, use (including process), disclose, store or maintain any Personal Information in any connection with the Licensed Software (on behalf of Licensee or otherwise), and as such Licensor shall have no obligations to Licensee in connection with any privacy laws. Licensee is solely responsible for obtaining and maintaining any necessary consents or permissions from those individuals whose information may be collected, recorded, processed, stored, used, disclosed, transferred, exchanged or otherwise handled by Licensee as a result of, or as part of, Licensee’s use of the Licensed Software and agrees to obtain and maintain all consents or permissions throughout the Term of this Agreement.
12. GENERAL
12.1 Maintenance or Support. Licensor shall provide to Licensee the level of Maintenance and Support selected in the Proposal.
12.2 Compliance with Laws. Licensee will comply with all applicable laws, regulations and other legal requirements that apply to it and to this Agreement, including without limitation laws relating to Intellectual Property Rights and privacy. Without limiting the generality of the foregoing, Licensee will comply with all applicable import and export control laws and regulations in its use of the Licensed Software and, in particular, Licensee will not export or re-export the Licensed Software without all required and foreign government licenses. Licensee will defend, indemnify and hold harmless Licensor from and against any violation of this provision by Licensee or any of its agents, officers, directors, or employees.
12.4 Remote Audits. Licensee hereby permits Licensor or its representatives to remotely review and inspect Licensee’s relevant records to ensure compliance with this Agreement. Said remote audit shall be conducted in a manner that does not unreasonably interfere with Licensee’s normal operations. In the event that a remote audit reveals any non-compliance by the Licensee with the terms of this Agreement, Licensee shall forthwith pay to Licensor any fees due to Licensor as a result of the non-compliance, plus interest, if any.
12.5 Assignments. Licensee may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Licensed Software) to any third party without Licensor’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.
12.6 Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in the Proposal, and will be effective upon receipt or when delivery is refused, three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
12.7 Governing Law and Venue. This Agreement will be governed by the laws of the Province of Ontario without regard to its conflicts of law provisions. Any action or proceeding arising from or relating to this Agreement shall be brought in the courts located in Toronto, Ontario courts.
12.8 Remedies. Licensee acknowledges that the Licensed Software contains valuable trade secrets and proprietary information of Licensor, that any actual or threatened breach of Section 3 will constitute immediate, irreparable harm to Licensor for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.
12.9 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.10 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
12.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. The terms on any purchase order or similar document submitted by Licensee to Licensor will have no effect.
12.12 Amendment. This Agreement may only be amended by a written agreement signed by both parties.