This Online Software Service Agreement (the « Agreement » as further defined below) is entered into on the day that you click «I Accept» on the terms and conditions of our online purchasing portal or when prompted to (the “Effective Date”), and is between OPERASOFT INC. or any Affiliate thereof as may be determined by Operasoft Inc. (“Operasoft”) and the organisation, corporation, municipality or other entity or body that you represent for the present purposes and identify as part of the registration process (« Customer ») (Operasoft and Customer being collectively, the “Parties”, and each a “Party”). Any and all notices to be given to Customer shall be sent via email at the email address that you provided as part of the registration process. Customer is responsible for providing to Operasoft any new or alternate email address as relevant, and Operasofty may at all times rely on the email address on file.
By clicking «I Accept» on the terms and conditions of our online purchasing portal, Customer hereby:
- Acknowledges having read and understood all information provided in the present Agreement, including these terms and that Customer accepts these terms and this Agreement;
- Certifies that all information provided by Customer is current and accurate and Customer agrees to notify us of any change respective of the information provided; and
- Represents and warrants that it has obtained and will maintain, at its sole cost and expenses, all licenses, rights, agreements, consents and authorization required in order to legally and lawfully input, communicate, transfer or otherwise make available any and all data, information, or other intellectual property to or in Operasoft, the Services, Devices and/or elsewhere or otherwise.
This Agreement consists of the terms and conditions set forth above and below, and also contains other posted notices or codes of conduct, which are incorporated by reference into this Agreement (the «Agreement»).
Please read this Agreement carefully.
BY SUBSCRIBING TO AND/OR USING ANY OF THE SERVICE, THE CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY MODIFICATIONS MADE TO IT FROM TIME TO TIME. IF THE CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT OR ANY MODIFICATIONS THEREOF, HE MAY REFUSE TO SUBSCRIBE TO OR USE THE SERVICE, OR TERMINATE SAME IN ACCORDANCE WITH THE AGREEMENT.
“Affiliate” means any legal entity that a party owns, that owns a party, or that is under its common Ownership.
“Client Software” means any client-software that may be provided to the customer relating to the Service, including as may be included and installed in Devices.
“Customer” means the organisation, corporation, municipality or other entity or body that has entered into this Agreement. If an individual executes this Agreement on behalf of an organisation, corporation, municipality or other entity or body, such individual represents that he has the authority to bind such entity to this Agreement.
“Devices” means one (1) GPS unit and/or one (1) handheld tablet, as applicable. Devices are required in order for vehicles to be tracked by the Service. Devices will be sold or leased to Customer, at its charge and expense, under Operasoft’s then applicable terms and conditions, which terms and conditions will be made available to Customer request.
“License” means the rights granted by Operasoft to the Customer to use, access, display and/or otherwise interact with the Service and/or any Client Software and/or Device(s), as applicable, solely for the Customer’s internal business purposes. When preparing and shipping hardware, these device(s) will be activated and your first monthly fee will be charged at 00:01 on the first day of the month until the last day at 23:59.
“Operasoft Solution” means software, hardware and technologies owned or licensed, and used, by Operasoft to power the Service.
“Order” means an order for services. An Order may include multiple Subscriptions to services.
“Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity. If the customer is an agency of a state, federal, provincial, or local government, “Affiliate” means:
- any government agency, department, office, instrumentality, division, unit or other entity, of the customer’s state, provincial or local government that is supervised by, or is part of, the Customer, or which supervises the Customer or of which the Customer is a part, or which is under common supervision with the Customer;
- any county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of governmental instrumentality established by the laws of the Customer’s state or province and located within the Customer’s state’s or province’s jurisdiction and geographic boundaries; and
- any other entity in the Customer’s state or province expressly authorized by the laws of the Customer’s state or province to purchase under state or provincial contracts; provided that a state or province and its Affiliates shall not, for purposes of this definition, be considered to be Affiliates of the federal government or its Affiliates.
- Notwithstanding the foregoing, provincial Crown corporations are not Affiliates for the purposes of this definition. If the Customer is an agency of the U.S. government, “Affiliate” means any other agency of the U.S. government. If the customer is an agency of the Canadian government, “Affiliate” means any other agency of the Canadian government, except for a federal Crown corporation.
“Service” means all Operasoft online services (including pre-release services) and software, and any updates, upgrades, support, and content (e.g., audio or visual information and documents) made available to the Customer by Operasoft in the course of using the Service. Operasoft may in its sole discretion, change, modify, change, alter, enhance, suspend, disable, terminate or discontinue any Service at any time and for any reason without notice.
“SLAs” means the Service level Agreements offered hereunder by Operasoft with regards to the Service. Other SLAs can be requested directly to us.
“Subscription” means the part of the Order identifying the specific Service being ordered and may include the User quantity, ship-to address, or other information.
“Subscription Term” means the duration of a Subscription, which is in all cases is for a minimum of twelve (12) months.
“Term” has the meaning set forth in Section 4.1.
“User(s)” means individuals within the Customer who have given by Customer the right to use the Service, as dictated by the number of User Licenses purchased by the Customer.
“User licenses” refers to the named licenses that the Customer has subscribed to under his Order.
- LICENSE GRANT – WHAT CUSTOMER IS LICENSED TO USE
2.1 General: Operasoft grants the Customer a License to the Services ordered and paid for by the Customer, subject to the Customer’s obligation to pay and any rights and limitations described in this Agreement. This License is non-exclusive, personal, revocable and non-perpetual, and is not transferable. The ability to use the Services may be affected by minimum system requirements or other factors. Operasoft reserves all rights not expressly granted.
2.2 Client Software: The Customer agrees to use reasonable efforts to make its employees, agents and other individuals that it allows to use any Client Software aware that it is licensed from Operasoft and subject to the terms of this Agreement. Additional rights and restrictions for the Client Software may accompany the provision of such Client Software, and the Customer agrees to abide by all such additional rights and restrictions.
2.3 Authorized Users: Only those individuals who the Customer designates as authorized Users may use and access the Service. The minimum number of users will be five (5) as per this Agreement. Only Users who have administrator privileges may add additional authorized Users to the Service up to and including the total number of User Licenses purchased during the Subscription period. User Licenses cannot be shared or used by more than one individual authorized User and cannot be reassigned to a new User to replace a current authorized User who has terminated employment or otherwise changed job status or function and no longer uses the Service. However, a User who has administrator privileges may delete an authorized User from the Service and add a new authorized User to the Service to replace the former authorized User. Customer is solely responsible for all activities, purchases and Orders placed or that occur under Customer’s account and/or password(s).
2.4 External Users: The Customer does not need to purchase additional Users accounts for External Users who access the Service without using any of the software. “External Users” means users that are not the Customer, or its employees, Affiliates, contractors or agents.
2.5 Limitations on use: The Customer shall not reverse engineer, decompile or disassemble the Service, any Devices or Client Software. The Customer shall not rent, lease, lend, resell, or host to or for third parties any Service, Devices or Client Software.
2.6 Font Components: While using the Service, the Customer may use its fonts to display and print content. The Customer may only:
(i) embed fonts in content as permitted by the embedding restrictions in the fonts; and
(ii) temporarily download them to a printer or other output device to print content.
2,7 Devices. Customer is responsible for the proper use, storage and safeguard, including the full cost of repair or replacement of any and all Devices that are damaged, lost or stolen from time to time. Customer assumes custody and risk of loss of all Devices. If a Device is lost, stolen or damaged, Customer must immediately notify Operasoft. Customer is responsible for training employees using the Devices on the proper use of the Devices in accordance with any applicable Device use procedures. Customer is responsible for the safe packaging, export, shipping and receiving of any Device. Original delivery and return transportation costs shall be paid by Customer. These costs include all shipping costs to and from Customer, shipping and transit insurance, taxes, duties and so forth. All maintenance and repair of Devices must be performed solely as directed by Operasoft. Any unauthorized maintenance or repair voids all original manufacturers’ (and any and all other) warranties. Customer shall be liable for the cost of purchasing a new warranty for Devices if unauthorized maintenance or repair is performed on a Device. Customer acknowledges that Devices are manufactured and/or obtained from third party manufacturers. To the extent expressly allowed and contemplated under the relevant third party manufacturer’s sale and/or lease and/or supply and/or licenses, Operasoft will use reasonable efforts make available to you any warranties or benefits available under any such third party manufacturers’ agreements. Except as stated in the preceding sentence, any and all Devices provided to you under or in relation to this Agreement are furnished “AS IS”, at your sole risks and perils, with all faults and without any warranty, representation, promise, obligation or condition of any kind, and Operasoft has and assumes no liability whatsoever in relation to any Device. Customer further covenants to comply with all applicable terms and conditions of any and all third party manufacturers’ agreement(s) (including any end user licenses of such third parties)
2.8 Customer residual responsibilities for hardware and supporting infrastructure and networks. Except only for Devices, Service and/or Client Software expressly provided to and paid for by Customer hereunder, Customer is solely responsible (at its sole costs and expense) for obtaining and providing all compatible hardware, equipment, software, telecommunications, Internet access, data plans, bandwidth and other resources as may be required or useful to use the Service, the Client Software and/or the Devices.
2.9 Operasoft Intellectual Property. Operasoft and its Affiliates own and shall retain ownership of all rights, title and interest (including all intellectual property rights) in and to all Operasoft Data, Services, Operasoft Solution, Client Software, Operasoft Confidential Information and of any other intellectual property developed, created, designed, used or provided by Operasoft or its Affiliates or subcontractors hereunder, including in all cases any and all modifications, updates, upgrades, new versions and derivative works thereof. The Parties shall, acting reasonably, execute any and all other documents reasonably required in order to confirm the above or allow Operasoft or its Affiliates to apply for, file or effect registration, maintenance or renewal of any relevant intellectual property rights.
- ORDERING, PRICING, PAYMENTS, RENEWALS AND TAXES
3.1 Ordering: The Customer shall place an Order for his Subscriptions for a Service via any means made available by Operasoft for such Ordering. If the Customer desires to use the Service for more than the total number of User Licenses available through the Service level it subscribed to, it must subscribe to the appropriate Service Level prior to commencing any such use. If the Customer desires to reduce the total number of Users, it may do so, subject to the cancellation fees referred to in Section 4.3 based on Operasoft’s then applicable rates. Any Services added to a Subscription will expire at the end of the SubscriptionTerm. Each Subscription shall be for a defined Subscription Term (minimum of 12 months). The Customer may place Orders for its Affiliates under this Agreement and grant its Affiliates administrative rights to manage the Services. Affiliates may not place Orders under this Agreement. To the extent the Customer grants any rights to Affiliates, such Affiliates shall be bound by the terms and conditions of this Agreement. The Customer agrees that it is jointly and severally liable for any Services purchased for (and all fees and taxes associated therewith) or other actions taken by any of its Affiliates or any third party to which it provides rights under this Agreement.
3.2 Subscription Fees: “Subscription Fee” means the monthly amount the Customer is required to pay for the Subscription to the Service and Client Software. The Customer may be required to pay the Subscription Fee in advance, in arrears or both. Operasoft may charge the Customer at one time for more than one billing period. Subscription Fees are available via the Order or other means made available by Operasoft. Payments are due and must be paid in accordance with the Order. Price level changes are not retroactive. Prices for each price level are fixed at the time the Subscription is first placed and apply throughout the Subscription Term. Subscription Fees are subject to change at the beginning of any Subscription renewal.
3.3 Renewal: Unless the offer specifically states otherwise and subject to Section 4.3, the Customer’s Subscription will automatically renew for the same Subscription Term at the expiration of the Subscription Term.
3.4 New Agreement: Prior to placing any new Orders, renewing any Subscriptions, or any further use of the Services, and upon notice, Operasoft may require that the Customer enter into an updated Agreement to govern Services, Orders, renewal Subscriptions, or usage from that date forward.
3.5 Taxes and other Incidental Charges: In addition to Section 2.8, the prices and rate plans do not include any taxes, phone and Internet access charges, mobile text messaging, wireless service and other data transmissions, unless stated otherwise. The Customer is responsible for all such incidental charges and any taxes and it is legally obligated to pay including, but not limited to, paying Operasoft any applicable value added, goods and service, sales and use taxes or like taxes that are permitted or required to be collected from the Customer by Operasoft under applicable law. If any taxes are required by law to be withheld on payments made by the Customer to Operasoft, the Customer may deduct such taxes from the amount owed Operasoft and pay them to the appropriate taxing authority; provided, however, that the Customer shall promptly secure and deliver to Operasoft an official receipt for any such taxes withheld or other documents necessary to enable Operasoft to claim a Foreign Tax Credit. The Customer will make certain that any taxes withheld are minimized to the extent possible under applicable law.
3.6 Refunds: All charges are non-refundable unless expressly stated otherwise, or otherwise provided by law.
3.7 Late Payments: Any failure on Customer’s part to make any payment in strict conformity with the above requirements shall entitle Operasoft, in addition to Operasoft’ other rights and remedies hereunder or at law, in equity or otherwise, at its option, to (i) terminate this Agreement immediately for breach, and/or (ii) suspend in whole or in part the provision of any Service until such time as Customer’s account is in good standing again. Operasoft may also assess, and Customer will then also pay, a finance charge of the lesser of 1.5% per month (18% annually) or the highest amount allowed by law on all past due amounts. Except to the extent prohibited by law, Operasoft may assess such late charges if the Customer does not pay on time, regardless of any disputes the Customer may have raised about its bill. The Customer must pay these late charges as and when billed by Operasoft. Operasoft may use a third party to collect past due amounts. The Customer must pay for all reasonable costs incurred by Operasoft to collect any past due amounts. These costs may include reasonable attorneys’ fees and other legal fees and costs.
- TERM AND TERMINATION
4.1 Term. This Agreement becomes effective upon the Effective Date, is for an initial term of twelve (12) months, and shall continue in effect and be renewed from month to month thereafter until terminated in accordance with its terms (the “Term”).
4.2 Termination by Operasoft: Operasoft may terminate any Service, any Subscription and/or this Agreement at any time for convenience on 15-day prior notice to Customer. Operasoft may also cancel or suspend the Customer’s use of any Service or a portion of thereof at any time if the Customer violates the terms of this Agreement, if Operasoft believes that the Customer’s use of the Service represents a direct or indirect threat to its network function or integrity or anyone else’s use of the Service, or if Operasoft is otherwise required by law to do so. Upon notification by Operasoft of any such cancellation or suspension, the Customer’s right to use the Service will stop immediately. Cancellation or suspension of the Service for the Customer’s violation of the terms of this Agreement will not change the Customer’s obligation to pay any Subscription fees due for the applicable Subscription Term.
4.3 Termination by the Customer: The Customer may cancel the Service at any time for any reason. However, the charges applicable until the expiration of the Subscription Term will become immediately due in its entirety until the end of the Subscription Term and payable and not refundable. Should the Customer wish for the Subscription to a Service not to automatically renew at the end of the applicable Subscription Term, the Customer must send a written notice to Operasoft at least thirty (30) days prior to the end of the Subscription Term, in which case, no cancellation fee shall apply.
4.4 Reduction of Users: The Customer may reduce the number of User Licenses that it has with Operasoft at any time for any reason. However, the charges applicable for the cancelled Licences until the expiration of the Subscription will become immediately due and payable and not refundable. Should the Customer wish to reduce the number of User Licenses before the automatic renewal, the Customer must send a written notice to Operasoft within thirty (30) days of the end of the Subscription, in which case, no cancellation fee shall apply.
4.5 Effect of termination: Upon termination or cancellation of the Service by either party for any reason, Operasoft may delete the Customer’s data permanently from its servers. Notwithstanding the foregoing, Operasoft will keep the Customer’s data for a period of 30 days before it is deleted from Operasoft’s servers. The Customer is solely responsible for taking the necessary steps to back up its data and ensure that it maintains its primary means of business.
4.6 Waiver of rights and obligations: To the extent necessary to implement the termination of this Agreement, each party waives any right and obligation under any applicable law or regulation to request or obtain intervention of the courts to terminate this Agreement.
4.7 No liability for deletion of data: The Customer acknowledges that, other than as expressly described in these terms, Operasoft will have no obligation to continue to hold, export or return the Customer’s data. The Customer acknowledges that Operasoft will have no liability whatsoever for deletion of the Customer data pursuant to these terms.
5.1 Access and Disclosure: In order to operate and provide the Services, Operasoft collects certain information about its Customer. Operasoft uses and protects that information as described herein and in Operasoft’s privacy statement, available on terms and conditions. In particular, Operasoft may use, access and/or disclose information about the Customer, including the content of its communications, in order to:
- comply with the law or respond to lawful requests or legal process;
- protect the rights or property of Operasoft or its Customers, including the enforcement of its Agreements or policies governing the Customer’s use of the Services; or
- act when Operasoft believes, in good faith, that such access or disclosure is necessary to protect the personal safety of Operasoft employees, Customers or the public.
The Customer hereby consents to the access and disclosures outlined in this section.
5.2 Transfer of personal information: Personal information collected through the Service may be stored and processed in Canada and the United States or any other country in which Operasoft or its Affiliates or agents and subcontractors maintain facilities. By using the Service, the Customer consents to any such transfer of information outside of its country.
5.3 Performance and usage data: In order to provide the Service, Operasoft may collect certain information about Service performance, the Customer’s computers and its Service use. Operasoft may automatically upload this information from the Customer’s computers. This data will not personally identify the Customer.
5.4 Filtering technology: Operasoft may use technology or other means to protect the Service, protect its Customers, or stop Customers from breaching this Agreement. Examples include filtering to stop spam and viruses or increase security. These means may hinder the Customer’s use of the Service.
5.5 The Customer’s privacy practices: In using the Service, the Customer may be able to collect personal information about third parties through its dealings with such third parties. If the Customer does this, he agrees to:
5.6 Communications: Because the Service is a hosted, online application, Operasoft may need to notify Users of the Service occasionally of important announcements regarding the operation of the Service. As a condition of the Service, Users may receive marketing and other non-critical Service-related communications from Operasoft from time to time.
- USE RIGHTS AND LIMITATIONS
6.1 SLAs: Operasoft will use commercial reasonable efforts to comply with the then-current SLA in place relating to the Services.
6.2 The Customer’s Use: In using the Service, the Customer will:
- comply with all laws;
- comply with any codes of conduct or other notices provided by Operasoft;
- comply with the Operasoft Anti-spam Policy;
- comply with this Agreement;
- keep its password secret; and
- promptly notify Operasoft if it learns of a security breach or unauthorized access related to the Service.
Without limitation, the Customer may not:
- use the Service in any way that harms Operasoft or its Affiliates, resellers, distributors and/or vendors (collectively, the “Operasoft parties”), or any Customer of a Operasoft party or the Service or other Users;
- engage in, facilitate, or further unlawful conduct;
- damage, disable, overburden or impair the Service (or the networks connected to the Service) or interfere with anyone’s use and enjoyment of the Service;
- resell or redistribute the Service, or any part of the Service, unless the Customer has a contract with Operasoft that permits it to do so;
- use any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages (“spam”);
- use any unauthorized automated process or service to access and/or use the Service (such as a BOT, a spider, periodic caching of information stored by Operasoft or “meta-searching”). However, periodic automated access to the Service for report creation or scheduling is permitted;
- use any unauthorized means to modify or reroute, or attempt to modify or reroute, the Service or work around any of the technical limitations in the Service;
- modify, create derivative works from, reverse engineer, decompile or disassemble or otherwise attempt to discover any trade secret contained in the Service or in any technology, or system used by Operasoft in connection with providing the Service, except and only to the extent that applicable law expressly permits the Customer to do so despite this limitation;
- create Internet “links” to the Service or “frame” or “mirror” any content of the Service to give the impression that the Customer is offering all of the functionality of the Service as its service located on its own servers;
- build a product or service using similar ideas, features, functions or graphics of the Service;
- copy any ideas, features, functions or graphics of the Service; or
- access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
6.3 Limits on Service: Operasoft may establish limits on the Service. For example, it may limit the number of days the Service will retain any content that Operasoft, the Customer or its Users provide, the number and size of email messages that the Customer may send or receive through the Service, the maximum storage space on Operasoft’s servers available to the Customer, the number of Service accounts to which the Customer may subscribe, how long Operasoft retains an inactive Service account (one where the Customer does not sign in to the Service for an extended period of time; the number of transactions the Customer can conduct through the Service, and the number of asynchronous transactions that can be executed with an organization.
6.5 Third Party Services: Operasoft may make services from third parties available to the Customer through the Service. These third party services are the responsibility of the third party, not Operasoft. The third party service providers may require the Customer to accept additional terms and conditions and/or pay a fee in order to use their services. Those additional terms and conditions are between the Customer and the third party. Any third party’s use of information the Customer provides as part of using their service is subject to the privacy statements and practices of that third party and/or their suppliers. Operasoft encourages the Customer to review the privacy statement of these third party providers. Operasoft is not responsible for the privacy statements or privacy practices of these third party providers or their suppliers.
- USER GENERATED CONTENT
7.1 Content: Operasoft, the Customer, its Users and associated account users and third parties may be able to post or store materials, including data, documents, information, advertisements, communications, messages and links to third party websites (“Content”) on the Service. The Customer may be able to post or provide materials (including feedback) that are part of the Service in a publicly accessible or other public area that allows the Customer to communicate with others (“Public Areas of the Service”). It also includes areas of the Service to which the Customer can control access by authorized users of associated accounts (“Private Areas of the Service”).
7.2 Intellectual property rights: Operasoft does not sanction or approve the unauthorized use of content protected by copyright and other intellectual property rights. The Customer understands that sharing content that violates others’ copyrights and intellectual property rights violates this Agreement. The Customer represents and warrants that the use and publication of the content by the Customer and others does not violate the intellectual property rights of any third party. The Customer understands that Operasoft may remove content at any time without notice when the content violates this Agreement or an applicable code of conduct, or when Operasoft has a good faith reason to believe it is necessary to do so.
7.3 Posting Content: The Customer acknowledges that Operasoft does not control or endorse the content that it and others post or provide on the Service. Operasoft doesn’t claim ownership of content that the Customer and others post or provide. By posting or providing content, the Customer grants Operasoft and the public (for content posted on publicly accessible areas of the Service), or those authorized Users of associated accounts to which the Customer has granted access (for content posted on private areas of the Service), free, unlimited worldwide and perpetual permission to use, modify, copy, distribute and display the content and publish the Customer’s name with the content. The Customer also gives the public, or those members of the public to which the Customer has granted access, permission to grant these rights to others. The Customer represents and warrants that it has all the rights necessary to grant the rights in this section and that the use and publication of the content does not breach any law. Operasoft will not pay the Customer for content posted on public areas of the Service. This section only applies to legally permissible content and only to the extent that use and publishing of the legally permissible content does not breach the law.
7.4 Private areas of the Service: The Customer acknowledges that certain technical processing of content posted on private areas of the Service may be required to store and retrieve the content, conform to connecting networks’ technical requirements, or conform to the limitations of the Service.
7.5 Links to third-party Web sites: The Service may contain links to third-party websites. These third-party websites are not under Operasoft’s control. If Operasoft has included these links in the Service, it provides them as a convenience only. The inclusion of these links is not an endorsement by Operasoft of any third-party website, service or product. Operasoft reserves the right to disable links to any third-party website that the Customer posts on the Service.
7.6 Operasoft is not responsible for Customer data: Operasoft performs regular backups of the Customer data for the purpose of recovery in the event of a failure in Operasoft’s data centers. However, notwithstanding the foregoing, the Customer is solely responsible for maintaining and backing up any the Customer data that it uses with the Service. The Customer, not Operasoft, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use such data. Operasoft shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any data that the Customer uses with the Service.
7.7 Operasofty Data. « Operasoft Data » includes (i) any all data related to, generated by, resulting from or created by the Services, the Operasoft Solution, the Devices, or the Client Software, excluding, for clarity data inputed therein by the Customer, as well as (ii) any and all data obtained or generated in relation to Operasoft’s monitoring, maintenance or support of the Services, the Operasoft Solution, the Devices, or the Client Software, as well as all performance, usage, statistical, data mining related, secondary, operational, processed or processing or other similar or related data included in, related to, generated by, resulting from, created by or processed by the Services, the Operasoft Solution, the Devices, or the Client Software. Operasoft and its Affiliates own and shall retain ownership of all right, title and interest (including all intellectual property rights) in and to all Operasoft Data. For clarity, Operasoft has and shall have the sole and absolute right to perpetually and irrevocably (including through sublicenses through multiple tiers of sublicensees) use, copy, modify, distribute, publicly display, publicly perform, prepare derivative works of, make, have made, import, sell, offer to sell and otherwise exploit the Operasoft Data for any purpose, including with or for other customers.
Operasoft and the Customer shall treat the terms and conditions of this Agreement as confidential and shall not disclose them to any third party except in the furtherance of the parties’ business relationship with each other. For government Customers, this Section is subject to the requirements of applicable trade secret, public records, or similar laws.
- NO WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES, CLIENT SOFTWARE, DEVICES, THE OPERASOFT SOLUTION AND ANY AND ALL OTHER SERVICES OR PROPERTY MADE AVAILABLE, PERFORMED, LICENSED OR PROVIDED TO PARTICIPANT BY OPERASOFT HEREUNDER, AND ANY AND ALL INTELLECTUAL PROPERTY AND INTELLECTUAL PROPERTY RIGHTS THERE UNDER AND HEREUNDER ARE FURNISHED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY, REPRESENTATION, OR CONDITION OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, LEGAL, STATUTORY, CONTRACTUAL, EXTRA-CONTRACTUAL, DELICTUAL, OR IN TORT, WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES’ CONDUCT OR COMMUNICATIONS WITH ONE ANOTHER, OR WHETHER ARISING AS RESULT OF THE NATURE OF THIS AGREEMENT OR IN CONFORMITY WITH USAGE, EQUITY OR LAW, OR OTHERWISE, INCLUDING ANY AND ALL WARRANTIES, REPRESENTATIONS, OBLIGATIONS, RIGHTS OR CONDITIONS OF TITLE, OWNERSHIP (INCLUDING BUT NOT LIMITED TO THE WARRANTY THAT THE RELEVANT PROPERTY IS FREE OF ANY OTHER RIGHTS OR CHARGES), NON-INFRINGEMENT, SATISFACTORY QUALITY, CURRENCY, ACCURACY, COMPLETENESS, APPROPRIATENESS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR A GENERAL PURPOSE, QUALITY, WORKMANSHIP, HIDDEN DEFECTS, PEACEFUL ENJOYMENT, SECURITY, DELIVERY, GOOD STATE OF REPAIR, WARRANTY AGAINST EVICTION, WARRANTY AND DUTY TO INFORM, DUTY TO ACT IN THE BEST INTEREST OF THE OTHER PARTY, OR OTHERWISE, EACH OF WHICH ARE HEREBY EXPRESSLY DENIED AND DISCLAIMED.
WITHOUT LIMITING THE GENRALITY OF THE ABOVE, OPERASOFT DENIES AND DISCLAIMS ANY AND ALL RESPONSIBILITY FOR ANY CLAIM OF ANY KIND WHATSOEVER RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO: (i) ANY ERRORS IN OR OMISSIONS FROM THE SERVICE, THE OPERASOFT SOLUTION, THE CLIENT SOFTWARE, THE DEVICES, OR THEIR CONTENT, OR ANY OPERASOFT DATA OR INFORMATION; (ii) THE UNAVAILABILITY OR UNINTERRUPTED USE OF THE SERVICE OR ANY PORTION THEREOF; OR (iii) ANY THIRD PARTY WEB SITES, SYSTEMS, TECHNOLOGIES, NETWORKS, INFRASTRUCTURES OR OTHER MATEIRALS OR ASSETS.
- DEFENSE OF INFRINGEMENT AND MISAPPROPRIATION CLAIMS
10.1 Agreement to protect: Operasoft will defend the Customer against any claims made by an unaffiliated third party that any Service or Client Software infringes that party’s Canadian patent or copyright or makes intentional unlawful use of its trade secret or undisclosed information. Operasoft will also pay the amount of any resulting adverse final judgment (or settlement to which Operasoft consents). This Section provides the Customer’s exclusive remedy and Operasoft’s entire liability on account of any claim pertaining to any intellectual property rights violation, infringement or misappropriation related to this Agreement or its subject matter.
10.2 What the Customer must do: The Customer must notify Operasoft promptly in writing of the claim and give Operasoft sole control over its defense or settlement. The Customer must also provide Operasoft with reasonable assistance in defending the claim. Operasoft will reimburse the Customer for reasonable out of pocket expenses that it incurs in providing that assistance.
10.3 Limitations on defense obligation: Operasoft’s obligations will not apply to the extent that the claim or award is based on:
- the Customer’s use of the Service or Client Software after Operasoft notifies it to discontinue its use due to a third party claim;
- the Customer’s combination of the Service or any related Client Software with a non-Operasoft product, data or business process;
- damages attributable to the value of the use of a non-Operasoft product, data or business process;
- any breach of this Agreement by Customer; or
- any trade secret or undisclosed information claim acquired by the Customer (1) through improper means; (2) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (3) from a person (other than Operasoft) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret or undisclosed information.
The Customer will reimburse Operasoft for any costs or damages that result from any of the above actions.
10.4 Specific rights and remedies in case of infringement:
(a) Operasoft’s rights in addressing possible infringement. If Operasoft receives information concerning an infringement claim related to a Service or Client Software, Operasoft may, at its expense and without obligation to do so: (1) procure for the Customer the right to continue to use the allegedly infringing Service and/or Client Software, (2) modify the Service and/or Client Software, or (3) replace the Service and/or Client Software with a functional equivalent, to make it non-infringing, in which case the Customer will immediately stop using the allegedly infringing Service and/or Client Software after receiving notice from Operasoft.
(b) The Customer’s specific remedy in case of injunction. If, as a result of an infringement claim, the Customer’s use of a Service or Client Software is enjoined by a court of competent jurisdiction, Operasoft will, at its option, either: (1) procure the right to continue its use; (2) replace it with a functional equivalent; (3) modify it to make it non-infringing; or (4) terminate the License for the infringing Service and/or related Client Software and refund any amounts paid in advance by the Customer for unused Services.
- LIMITATION OF LIABILITY
11.1 Limitation on liability: Except as otherwise provided in this Section, to the extent permitted by applicable law, the maximum total and aggregate liability of Operasoft (including its Affiliates) and of Operasoft’s contractors, under or in relation to this Agreement is limited to direct damages up to the total amount the Customer paid Operasoft for the Service and/or Client Software giving rise to that liability, on average, over any twelve months prior to the filing of a first claim. These limitations apply regardless of whether the liability is based in contract, tort (including negligence) or extra-contractual liability, strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to:
- Section 10.1;
- liability for damages awarded by a court of final adjudication for Operasoft’s or its employees’ or agents’ gross negligence or willful misconduct;
- liabilities arising out of any breach by Operasoft of its obligations under the Section entitled “Confidentiality”; or
- liability for personal injury or death caused by Operasoft’s negligence or that of its employees or agents or for fraudulent misrepresentation.
11.2 EXCLUSION OF CERTAIN DAMAGES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER OPERASOFT NOR ITS AFFILIATES WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), SPECIAL, PUNITIVE, EXAMPLARY OR INCIDENTAL DAMAGES, OR FOR DAMAGES FOR LOSS OF PROFITS, OPPORTUNITIES OR REVENUES ARISING IN RELATION TO OR UNDER THIS AGREEMENT, OR FOR ANY DAMAGES RELATED TO ANY MATTER ARISING FROM OR RELATING TO CUSTOMER’S USE, ACCESS OR INABILITY TO USE OR ACCESS THE SERVICE, THE OPERASOFT SOLUTION, CLIENT SOFTWARE, DEVICES, ANY DATA OR INFORMATION, OR ANY CHANGES THEREOF; IN EACH CASE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE.
- VERIFYING COMPLIANCE
During the Term of any Subscription Term, and for three years thereafter, the Customer must keep all usual and proper records relating to the Subscription(s) and the Customer’s use of the Services and/or Client Software under this Agreement. Operasoft may request that the Customer conduct an internal audit of all Services in use throughout the Customer’s organization, comparing the number of User Licenses in use to the number of User Licenses issued to and/or paid for by the Customer. By requesting an audit, Operasoft does not waive its rights to enforce this Agreement or to protect Operasoft’s intellectual property by any other means permitted by law. If verification or self-audit reveals any unlicensed use, the Customer must promptly order sufficient Licenses to cover its past and present use. If material unlicensed use is found, the Customer must reimburse Operasoft for the costs Operasoft has incurred in verification and acquire the necessary additional Licenses at single retail license cost within 30 days.
13.1 Notices to Operasoft: Notices, authorizations, and requests in connection with this Agreement must be sent by regular or overnight mail, or express courier, to the addresses listed below. Notices will be treated as delivered on the date shown on the return receipt. Termination of the Agreement, a Subscription, or cancellation of a Subscription should be via its Operasoft Customer service contact.
Notices should be sent to:
324, Chemin du Tour
Canada H7Y 1S5
Copies should be sent to the addresses provided at: http://www.operasoft.ca
13.2 Assignment: The Customer may not assign this Agreement. Operasoft may assign its rights and/or obligations under this Agreement without the Customer’s consent: (i) to any Operasoft Affiliate, or (ii) in connection with a merger, amalgamation or sale of all or a substantial part of its business or assets.
13.3 Severability: If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the other sections of this Agreement will remain in full force and will not be affected by this decision. This Agreement will be amended to give effect to the eliminated provision to the maximum extent possible.
13.4 Waiver: A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by a duly authorized representative of the waiving party.
13.5 Applicable law: This Agreement is governed by the laws of Quebec without regards to its conflict of law provisions..
13.6 Jurisdiction: The courts of the province of Québec or the federal courts of Canada situated therein, as applicable, sitting in the district of Montreal, shall have sole and exclusive jurisdiction over any action, Claim, demand, proceeding or lawsuit whatsoever arising under or in relation to this Agreement or its subject matter. The Parties irrevocably agree, consent and submit themselves to the subject matter and personal jurisdiction of the courts of the Province of Quebec and of the federal courts of Canada situated therein, siting in the district of Montreal, for such purposes. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
13.8 Entire Agreement: This Agreement, any SLAs, and the pricing and payment terms available set forth in the Order constitute the entire Agreement concerning the subject matter and supersede any prior or contemporaneous communications.
13.9 Survival: Provisions regarding fees, restrictions on use, transfer of licenses, export restrictions, defense of infringement and misappropriation claims, limitations of liability, confidentiality, compliance verification, obligations on termination and the provisions in this Section entitled “Miscellaneous” will survive termination of this Agreement.
13.10 Force majeure: Neither party will be liable for any failure in performance due to causes beyond either party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services)). This Section will not, however, apply to the Customer’s payment obligations under this Agreement. Customer further understands and agrees that from time to time, any Service may be inaccessible, unavailable or inoperable for any reason, including: (i) equipment malfunctions; (ii) periodic or urgent maintenance procedures or repairs which Operasoft may undertake from time to time; or (iii) causes beyond the reasonable control of Operasoft. While Operasoft will attempt to provide the Service on a continuous basis, Customer acknowledges and agrees that Operasoft cannot ensure or guarantee the availability of the Service on a continuous or uninterrupted basis. In addition, performance under this Agreement (including in respect of connectivity and the quality of the geo-positioning data) is conditioned and dependent upon, and subject to, the performance and services quality of various third parties and intermediaries, and Operasoft shall be relieved and excused of any deficiency to perform hereunder to the extent attributable to Customer or to any third parties or intermediaries.
13.11 Password Protection: The Customer agrees that it is responsible for protecting the confidentiality of any Operasoft passwords with this Agreement.
13.12 English language controls: If there are any discrepancy between the English version of this Agreement and any version of another language, the English version takes precedence. If the Customer is in Canada, it is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English. Il est de la volonté expresse des parties que la présente Entente ainsi que les documents s’y rattachant soient rédigés en anglais.
13.13 Natural disaster: In the event of a natural disaster, Operasoft may post information or provide additional assistance or rights on http://www.operasoft.ca.