ACCOMPRO AGREEMENT
STANDARD TERMS AND CONDITIONS
Last Updated: January 1, 2012
[[Accompro® is a Registered Trademark of OnRes Systems, Inc. (“OnRes”)]]
THIS IS THE ONRES ACCOMPRO STANDARD TERMS AND CONDTIONS (“TERMS AND CONDITIONS“), WHICH GOVERN CUSTOMER’S USE OF THE LICENSED SOFTWARE AND SERVICES PROVIDED BY ONRES OR ANY OF ITS AFFILIATES.
1. Interpretation and Definitions
1.1 These Terms and Conditions are incorporated by reference and deemed to be an integral part of the Agreement entered into between OnRes and the Customer. BY EXECUTING THE ACCOMPRO AGREEMENT THAT REFERENCES THESE TERMS AND CONDITIONS, YOU AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN.
1.2 Capitalized words which are not defined herein shall have the meanings ascribed to such terms in the Agreement (including any Schedule attached thereto).
2 Services
2.1 OnRes will provide the Services to the Customer as set out in the Agreement.
2.2 OnRes may use service providers and subcontractors it considers appropriate from time to time to carry out its obligations under the Agreement. The cost of these service providers and subcontractors will be paid by OnRes unless the parties agree otherwise. No such delegation of duties will relieve OnRes of its rights, duties and obligations under the Agreement.
2.3 OnRes will make reasonable efforts to schedule any downtime for maintenance, upgrades and repair of the Licensed System at times that will minimize disruption to the Customer. However, there may be downtimes during the Customer’s business hours. The Licensed System may be unavailable from time to time without notice due to hardware and software malfunctions, repairs, power outages, hackers, lack of internet services and unforeseeable large service demands. If this occurs, OnRes will take reasonable steps to restore the availability of the Licensed System in a timely manner, but will not be liable for any such downtime which occurs out of the reasonable control of OnRes.
2.4 The Customer will report to OnRes all errors it discovers in the Licensed System and OnRes will use reasonable efforts to correct the errors in a timely manner.
3. Licence
3.1 OnRes grants a limited, non-exclusive, non-transferrable licence to the Customer and its employees, representatives and other authorized users (collectively, the “Users”) to access and use the Licensed System for the Term and in accordance with the terms and conditions of the Agreement (including these Standard Terms and Conditions and other system access policies put into place by OnRes from time to time).
4. Intellectual Property
4.1 The Licensed System, including all original information, images, artwork, text, video, audio, pictures and other materials on the Licensed System and all intellectual property rights thereto and therein (the “Materials”) are and shall be owned by OnRes and are protected by Canadian and international copyright laws and treaty provisions. OnRes may at any time and at its sole election replace, modify, alter, improve, enhance, or change all or any part of the Materials. The license of the Licensed System granted herein is not a sale and does not transfer to Customer any title or ownership interest in or to the Materials. Except for the rights expressly granted herein, OnRes retains all of its right, title and interest in and to the Licensed System and Materials and to any modifications, improvements, customizations, feedback, reports, designs, inventions, specifications or other materials developed by OnRes for the Customer pursuant to this Agreement and all intellectual property rights therein (collectively, “Developments“). Customer agrees that it will not claim or assert any right or title to any Materials described herein nor shall Customer attempt to transfer any such right or title to any third party.
4.2 OnRes owns all right, title and interest in and to all aspects of the Licensed System and the Materials, including the computer software and code that operates the Licensed System, the graphical design of the user interface, the “look-and-feel” of the user interface and of the Licensed System, the customized development performed for the Customer, and all Developments relating thereto (collectively, the “Software Components”) and all intellectual property therein and thereto.
4.3 The Customer and its Users may download the Materials to the extent necessary to use the Licensed System for the purposes of the Agreement, but the Customer or its Users may not otherwise copy, reproduce, reverse engineer, decompile, republish, post, transmit, display, perform, distribute, modify or create derivative works from the Materials or permit or authorize anyone within Customer’s reasonable control to do any of the foregoing.
4.4 OnRes will own the data entered or stored in the Licensed System (the “User Data”) and such User Data may be used by OnRes, subject to the applicable obligations with respect to Confidential Information contained herein and applicable privacy laws.
5. Fees & Payment
5.1 The Customer will pay the amounts specified in the Order Form forming part of this Agreement plus applicable taxes in accordance with the payment schedule and terms (if any) set out on the Order Form. Unless otherwise specified in the Order Form, the Initial Fees are payable upon OnRes’ receipt of the executed Agreement and are non-refundable.
5.2 The Customer will pay OnRes simple interest on all overdue amounts at a rate equal to 12% per year, calculated from the date payment was due until the date payment (including accrued interest thereon) is made in full.
5.3 A valid credit card of the Customer is required to remain on file with OnRes at all times and may be charged any overdue amounts due from Customer by OnRes if an account is over 60-days in arrears.
6. Security
6.1 OnRes will use commercially reasonable efforts to keep the Licensed System secure for the purposes of use by Customer contemplated in this Agreement.
6.2 The Customer use commercially reasonable efforts to maintain the confidentiality and security of all usernames and passwords issued to the Customer and the Users. The Customer and Users will be responsible for all activities conducted under their respective usernames and passwords. The Customer will immediately notify OnRes in writing upon becoming aware of any unauthorized use of any username or any other security breach regarding the Licensed System.
7. Reference for OnRes; Use of Name and Trade-marks
7.1 The Customer agrees that OnRes may advertise, market or otherwise make known to others the contractual relationship between OnRes and the Customer, without breaching the obligations of confidentiality hereunder (including referencing the Customer as a customer of the Licensed System on OnRes’s website, which reference may include use of the Customer’s name and logo for that purpose, and placing a link on the OnRes website to the Customer’s website). Any other information relating to the services performed under this Agreement shall continue to be Confidential Information.
7.2 Customer hereby authorizes OnRes to such use of its name for the limited purposes set out in this Section and hereby OnRes limited, royalty-free, non-exclusive permission during the Term of this Agreement to use the Customer’s trade-marks, trade-name and the copyright in the design elements of those trade-marks (collectively, the “Customer Marks”) on the Licensed System solely for the purposes of:
(a) identifying the products or services of the Customer as originating from the Customer, and in particular, making the Licensed System available to the Users; or
(b) identifying the Customer as a customer of OnRes.
7.3 OnRes will only use the Customer Marks in accordance with the reasonable policies, specifications, regulations and standards stipulated by the Customer to OnRes from time to time.
7.4 OnRes will not use the Customer Marks on any products, on any services other than those described in this Section, in any manner that is likely to cause confusion, in any manner that disparages or discredits the Customer, or in any manner not expressly permitted by this Agreement or by the Customer in writing.
8. Computer Equipment
8.1 The Customer is solely responsible for ensuring that the Users have the knowledge, skill, technology and communications connections necessary to access and use the Licensed System, including a computer workstation with the following minimum features: MS Internet Explorer 6.0 or later and cipher strength of a minimum 128-bit.
8.2 OnRes has no responsibility for the workings of the Customer’s computer equipment, its office network(s), other software it uses, or its Internet access.
9. Confidentiality
9.1 “Confidential Information” shall mean with respect to a party (herein, the “Relevant Party”) any and all information, data and financial information relating to the business, commercial strategies, pricing, personnel, customers, products or services of such Relevant Party, but excludes any information that: (i) was lawfully in the other party’s possession before receiving it from such Relevant Party, (ii) is provided in good faith to the other party by a third party without breaching any rights of, or obligations owed to, such Relevant Party, or (iii) is or becomes generally available to, or accessible by, the public through no fault of the other party.
9.2 Each party will (and will cause its affiliates, shareholders, directors, officers, employees and agents to) keep all Confidential Information received by it strictly confidential and not disclose it to anyone unless the Relevant Party consents in writing or unless such party is required by applicable law or valid court order to do so (in which case, the other party shall provide the Relevant Party with advance notice of such requirement to disclose in order to allow the Relevant Party to dispute the order). Any such mandatory disclosure of Confidential Information shall be limited to the extent specifically required in the order.
9.3 The Confidentiality obligations of each party shall survive termination of the Agreement indefinitely.
10. Customer’s Responsibilities
10.1 The Customer will cooperate with OnRes in respect of the use of the Licensed System and Services to be provided hereunder and will respond to all reasonable requests made by OnRes in a timely way.
10.2 The Customer will ensure that it and the Users:
(a) use the Licensed System and the Services in a manner consistent with the terms of this Agreement and all applicable laws and regulations;
(b) do not hack, reverse engineer, disable, disrupt or interfere with the functioning of the Licensed System or the Services;
(c) do not upload to, or transmit from, the Licensed System, anything that, if reproduced, published, transmitted or used, may be defamatory, threatening, abusive, obscene, pornographic, harmful or invasive of anyone’s privacy, may violate any law including copyright, trade-mark, trade secret, patent, privacy or other laws, or may give rise to civil or other liability, or may be against public interests;
(d) do not upload or transmit, or permit anything to be uploaded or transmitted, to the Licensed System any data, file or software that contains a virus, Trojan horse, worm or other harmful component (collectively, “Harmful Components”); and
(e) do not use the Licensed System or the Services for spamming, other advertising, other bulk message transmission or other similar activity that is objectionable to OnRes in its sole discretion.
11. Modifications to the Licensed System
11.1 From time to time, OnRes may in its sole discretion add new features to the Licensed System or otherwise modify or change the Licensed System (including its functionality, its visual design and “look-and-feel”, the universal resource locators and the Software Components), as long as these modifications or additions do not impair the pre-existing features of the Licensed System.
12. Representations and Warranties
12.1 Each party represents to the other that (a) it is an entity duly organized and validly existing under the laws of its organization or incorporation; (b) it is duly qualified, authorized to do business and in good standing in every jurisdiction necessary to perform its obligations under this Agreement; (c) it has all requisite capacity, or corporate power and authority to enter into and perform its obligations under this Agreement; (d) the execution and delivery and performance of this Agreement has been authorized by all necessary corporate action on its part and do not require any further approvals, consents or material filings which have not previously been made or obtained; and (e) this Agreement has been duly executed and delivered on its behalf and constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms.
12.2 OnRes represents to the Customer that OnRes has all such rights and interests in and to the Licensed System as necessary to provide the Services and grant to the Customer the permissions and rights specified in this Agreement.
12.3 OnRes represents to the Customer that the installation and configuration of the Licensed System, and all other services to be provided by OnRes under this Agreement, will be performed in a good and workmanlike manner, in accordance with the standards of care and diligence normally practised by software firms performing services of a similar nature.
13 Limitation of Liability
13.1 EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN SECTION 14 FOR THE CUSTOMER, NO WARRANTY, CONDITION OR REPRESENTATION, EXPRESS, IMPLIED, ORAL OR STATUTORY, IS PROVIDED TO THE CUSTOMER OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY, CONDITION OR REPRESENTATION: (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY QUALITY; (B) THAT THE LICENSED SYSTEM WILL BE FREE FROM INFRINGEMENT OR VIOLATION OF ANY RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, OF THIRD PARTIES; OR (C) THAT THE OPERATION OF THE LICENSED SYSTEM WILL BE COMPLETELY SECURE, UNINTERRUPTED OR ERROR FREE. THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES HEREUNDER AND THE ONLY LIABILITY OF ONRES IS EXPRESSLY LIMITED TO THE TERMS OF THE AGREEMENT. ONRES SHALL NOT BE LIABLE TO THE CUSTOMER, OR ANY THIRD PARTY, FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, INCLUDING WITHOUT LIMITATION, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, LOSS OF DATA, PRODUCTION OR PROFIT ARISING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ONRES IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS, INJURY OR DAMAGES AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. FOR PURPOSES OF THIS PROVISION, ONRES INCLUDES ONRES’S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS AND SUPPLIERS. IN NO EVENT SHALL THE TOTAL COLLECTIVE CUMULATIVE LIABILITY OF ONRES, ITS EMPLOYEES, OFFICERS, AGENTS AND DIRECTORS EXCEED THE AMOUNT PAID TO ONRES FOR PRODUCTS FROM WHICH SUCH LIABILITY AROSE DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE MOST RECENT CLAIM.
13.2 The Customer acknowledges that all security risks cannot be eliminated and that the Internet is not a secure medium. As with all systems that permit messaging, file upload or transmission, the Licensed System and the Services (including the User Data) carry with them a risk that a User may send or receive a message, or upload or transmit a file, that contains Harmful Components, and that Harmful Components may cause damage to the Customer’s or the Users’ computers, systems or electronic files, and may spread and may cause damage to other persons’ computers, systems or electronic files. OnRes will not be responsible for any such damage, liability, cost or expense incurred as a consequence of receiving any Harmful Component through use of the Licensed System or the Services, or as a consequence of an intended recipient not being able to send or not receiving a data transmission through the use of the Licensed System or the Services.
13.3 OnRes does not represent or warrant that the Software Components, User Data, or the data sent or received through the Licenses System or Services by the Customer or the Users, are free of Harmful Components, and does not represent or warrant that any data, electronic mail messages, telexes or facsimiles transmitted to or from the Licensed System or by using the Services will be received in a timely way or at all.
13.4 The parties agree that this Agreement represents a fair allocation of risk and liability, which is reflected in the amounts to be paid to OnRes by the Customer.
14 Indemnities
14.1 OnRes will indemnify and hold the Customer harmless from and against all claims, fines, taxes, damages, expenses, costs (including actual lawyers’ fees and expenses) actually incurred by the Customer or its officers, directors, shareholders, employees and representatives for any reason relating directly or indirectly to OnRes’ breach of any of OnRes’ obligations, representations or warranties in this Agreement.
14.2 The Customer will indemnify and hold OnRes and its affiliated, related or subsidiary companies and its and/or their employees, directors, officers, agents, shareholders, successors, assigns or licensees (collectively, the “OnRes Indemnified Parties”) harmless from and against all claims, fines, taxes, damages, expenses, costs (including actual lawyers’ fees and expenses) incurred by an OnRes Indemnified Party arising out of, directly or indirectly (a) the Customer’s breach of any of the Customer’s obligations, representations or warranties in this Agreement; or (b) any third party claim, action, or allegation brought against any OnRes Indemnified Party related to Customer’s (or its Users, affiliates, employees, agents or contractors) use of the Licensed System.
15 Term; Renewal; Termination
15.1 Unless otherwise stated on the “ACCOMPRO AGREEMENT”, this Agreement will be in effect for a term of one-year from the Effective Date. Thereafter, the Agreement will continue for successive one-year renewal terms unless either party gives the other party 90-days written notice of termination.
15.2 This Agreement may be terminated (a) by either party if the other party breaches any material obligation in this Agreement and fails to remedy the breach within 30-days after receiving written notice from the non-breaching party specifying the breach and stating the intention to terminate the Agreement if not remedied; and (b) by OnRes immediately upon written notice to Customer in the event that Customer (i) terminates or suspends its business activities, (ii) makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (iii) becomes subject to any bankruptcy or insolvency proceeding under provincial, federal or state statutes or their equivalents.
15.3 Upon termination of the Agreement:
(a) the Customer will promptly pay to OnRes all fees and charges which are due, have accrued, have become payable or which are outstanding as of the effective date of termination;
(b) the Customer will immediately upon invoice pay to OnRes all amounts which become due to suppliers of any of the Services (for example, if termination of OnRes’ contracts with such suppliers results in penalties, damages or other fees becoming payable); however, OnRes will use commercially reasonable efforts to minimize all such amounts;
(c) the Customer will immediately cease all use of the Licensed System and the Services, and will cause its Users to immediately cease their use of the Licensed System and the Services; and
(d) each party shall return or destroy the Confidential Information of the other.
16 Non-Solicitation
16.1 Neither party will directly or indirectly at any time during the Term of this Agreement or for 12 months after any termination of the Agreement: (a) induce or encourage any employee, consultant or contractor of the other party to leave his or her employment or engagement with the other party; or (b) employ, attempt to employ, assist any person to employ, or retain as a consultant or contractor, any employee or contractor or former employee or contractor of the other party; without the prior written consent of the other party.
17 Governing law; Dispute Resolution
17.1 The construction, interpretation and performance of this Agreement, and the transactions under it, shall be governed by and construed in accordance with the laws of the Province of British Columbia, excluding its conflict of laws and choice of law rules. The parties hereby attorn irrevocably to the exclusive jurisdiction of the British Columbia courts.
17.2 In the event any disputes under or in connection with this Agreement cannot be resolved through good faith negotiations among the parties within 30 days, the parties agree to submit such dispute binding arbitration. Any such arbitration will take place in British Columbia by a single independent arbitrator and in accordance with the Commercial Arbitration Act of British Columbia (as modified or re-enacted).
17.3 Nothing herein shall prevent either party from applying to a court of competent jurisdiction for interim protection or equitable relief such as an interlocutory or interim injunction.
18 General provisions
18.1 All notices under the Agreement shall be in writing and given by personal delivery, certified mail, return receipt requested, or by commercial overnight courier for next business day delivery, to the recipient’s address set forth in the Agreement. Notice shall be deemed given the date of personal delivery, the fifth business day after mailing, or the next business day after delivery to such courier (unless the return receipt or the courier’s records evidence a later delivery).
18.2 Neither party is an agent or partner of the other party. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
18.3 The parties will execute and deliver to each other all other supplemental agreements and other instruments and take any other actions necessary to give full effect to the Agreement and to make the Agreement legally effective, binding, and enforceable as between them and as against third parties.
18.4 The Agreement (which includes Schedule A (Order Form) and these Standard Terms and Conditions), constitutes the entire agreement between the parties with respect to the Licensed System and the Services. There are no representations or warranties, express or implied, statutory or otherwise and no agreements collateral to the Agreement with respect to the Licensed System, the Services and any other services specified on Schedule A (Order Form), other than as expressly set out or referred to in the Agreement.
18.5 Neither party may assign the Agreement or any of its rights or obligations hereunder (except as provided in Section 2.2) without the prior written consent of the other party, which shall not be unreasonably withheld. The Agreement will bind and inure to the benefit of each of the parties including their respective lawful successors and permitted assigns.
18.6 Neither party will be liable for any non-performance or delay in performance of its obligations when such failure is due wholly or in part to events beyond the reasonable control or due to unforeseen circumstances such as acts of God, earthquakes, shortage of supplies, labour disputes, strikes, lockouts, riots, acts of war (whether or not declared), failures of the Internet, earthquakes, fire, flooding, explosions, power outages, terrorism or epidemics.
18.7 The invalidity or unenforceability of any term or provision of the Agreement will not affect any other term or provision of the Agreement; the remaining terms and provisions will continue in full force and effect. The parties will negotiate in good faith to agree to a substitute term that will be as close as possible to the intention of any invalid or unenforceable term while being valid and enforceable. The invalidity or unenforceability of any term in any particular jurisdiction will not affect its validity or enforceability in any other jurisdiction where it is valid or enforceable.
18.8 The Agreement may only be amended by a written agreement signed by each party; provided however, that updates and modifications to these Standard Terms and Conditions may be made from time to time by OnRes in the ordinary course of business and upon notification to Customer.