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.
For
questions, please call us toll free in
North America at 1.866.687.7057 or
1.604.484.2483 or by clicking here.
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