THIS END USER LICENCE AGREEMENT
"the Licensee" or "you"
TYPESIFT Software End User License Agreement (EULA)
All capitalized terms in this Agreement shall, unless otherwise defined in this Agreement, have the definition noted in Appendix B (as hereinafter defined).
This Agreement will commence on the Signature Date and will remain in force indefinitely until terminated in accordance with the remaining provisions of this Agreement.
3. Confidentiality and Privacy
TypeSift will not disclose, copy or use any confidential information or data of the Licensee (including client information and information about an identifiable individual (“Personal Information”)) except as necessary to perform its obligations under the Agreement (collectively “Confidential Information”). Without limiting the foregoing, TypeSift will not collect, create, handle, dispose of or destroy any Personal Information except as necessary to perform its obligations under the Agreement. TypeSift will take reasonable organizational and technological steps to protect all Confidential Information from loss, theft or unauthorized use or disclosure. Confidential Information remains the property of the Licensee. Upon request, TypeSift shall deliver to the Licensee all Confidential Information existing in any form or at the Licensee’s request, destroy it.
4. Acceptable use
The Licensee may use the Software, on a personal computer or other device, either directly or through a network, subject to the payment terms as identified in Appendix A. Use of the Software as defined in Appendix A constitutes acceptance of the terms and conditions of this Agreement.
5. Payment for Software
a. You shall pay to TypeSift’s License Fees for the use of the Software as detailed in Appendix A (License Fees) attached hereto plus applicable taxes.
b. TypeSift may, after a period of 12 months from the Signature Date, change License Fees at any time (but only once per calendar year) provided that TypeSift gives you not less than 60 (sixty) calendar days’ notice of any change to the License Fees. The Licensee agrees to pay the new License Fees.
c. All License Fees and Taxes due to TypeSift which are not paid in full within 30 days following its due date will bear interest at a rate of 1.5% per month (18% per annum) or the maximum amount allowed by law, if less, on the unpaid portion until fully paid.
d. Licensee’s Affiliates that order Software Licenses are bound by the terms and conditions of this EULA as if it were the Licensee. Licensee and its Affiliates are jointly and severally liable to TypeSift for any breach of this EULA.
6. Upgrading of Software
a. All Support Software provided to Licensee under a TypeSift maintenance or support program is governed by this EULA.
b. The Licensee acknowledges that failure to either update the Software as and when an upgrade becomes available or to enable the Software to perform automatic updates could result in the Software becoming inoperable.
c. TypeSift and the Licensee have agreed that TypeSift shall provide to the Licensee at no additional cost to the Licensee (i) the setup of the Software on the Licensee’s systems and (ii) such reasonable modifications as the Licensee may request to customize the Software for use in the Licensee and on its systems.
7. License Rights and Confidentiality
a. None of the Software is being sold. All ownership, intellectual property, and other rights and interests in the Software remain solely with TypeSift, its Affiliates or its licensors. The source code of the Software is a trade secret of TypeSift, its Affiliates or its licensors, and is their confidential information.
b. During the term of this Agreement and subject to Licensee’s payment of the License Fees and Taxes in full, TypeSift grants the Licensee a non-exclusive license for the Licensee to use the Software and TypeSift database upon the terms and conditions of this Agreement.
c. You agree that TypeSift retains sole ownership and all other proprietary rights including, without limitation, intellectual property rights to the Software. The Licensee may use the Software on any number of computers or other devices, either directly or through a network and is authorized to permit an unlimited number of Users and User Accounts to use the Software and TypeSift database. All Users must be registered within the Software settings.
d. The Software and the TypeSift database used by the Software contain confidential and proprietary information belonging to TypeSift. As a result any use, disclosure, access, reproduction or derivation of the Software or TypeSift database by the Licensee, its agents or employees or any third party is strictly prohibited, including modifying, renting, leasing, loaning, distributing, or creating derivative works based upon the Software and TypeSift database in whole or in part unless the use is permitted by this Agreement or has been authorised in writing by TypeSift. Failure to abide by this clause constitutes a material breach of this Agreement and entitles TypeSift to terminate this Agreement if the breach is not cured within thirty (30) days after receipt of notice of such breach from TypeSift.
e. The Licensee, its employees, agents and subcontractors may not modify (other than the Licensee’s right and ability to enter additional data in the TypeSift database as used by the Licensee), translate, reverse engineer, decompile, disassemble or create derivative works of the Software and the database associated with the Software or otherwise attempt to defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any Software protection mechanisms in the Software including, without limitation, any such mechanism used to restrict or control the functionality of the Software or derive the source code or the underlying ideas, algorithms, structure or organisational form of the Software. The Licensee hereby agrees that it will at all times, including during and after the term of this Agreement, keep the Software and its associated database as well as all information relating to the Licensee’s use of the Software such as, but not limited to, benchmarks, performance results and other information, confidential and the Licensee shall not use or disclose any such information unless otherwise expressly agreed in writing by TypeSift.
f. Licensee may not permit any software products not licensed by TypeSift to interface or interact with the Software, unless accomplished through the use of application program interfaces provided by TypeSift.
g. Notwithstanding the above, if any of the Software is provided to the Licensee in source code format (or any other format that can be modified), the Licensee may modify such portion of the Software for the sole purpose of using the Software in accordance with this EULA and TypeSift will solely own all modified portions and Licensee assigns all ownership rights in the modifications to TypeSift.
h. For clarity, the restrictions set out in Section 7(d) and (e) do not apply to any client data entered in the Software or the TypeSift Database by the Licensee. All client data entered in the Software or the TypeSift Database by the Licensee shall in each instance be the sole property and confidential information of the Licensee.
i. TypeSift and the Licensee agree to take all reasonable steps and the same protective precautions to protect the Proprietary Information from disclosure to third parties as with its own proprietary and confidential information. Neither party shall, without the other party's prior written consent, disclose, any of the Proprietary Information of the other party to any person, except to its bona fide individuals whose access is necessary to enable such party to exercise its rights hereunder. Each party agrees that prior to disclosing any Proprietary Information of the other party to any third party, it will obtain: (a) the written approval of TypeSift; and (b) from that third party a written undertaking in the form of the attached Appendix C that such third party will be bound by the same terms as specified in this Section 7 with respect to the Proprietary Information.
j. The Licensee may demonstrate the Software to its Affiliates provided: (a) the Licensee obtains the written consent of TypeSift; (b) the Licensee includes TypeSift personnel during the demonstration, where possible; and (c) the Affiliate executes a written undertaking in the form of the attached Appendix C that such Affiliate will be bound by the same terms as specified in this Section 7 with respect to the Proprietary Information.
k. Unless prohibited under the applicable License Document, the Licensee may allocate Software Licenses to its Affiliates, provided: (a) the Licensee obtains the written consent of TypeSift, not to be unreasonably withheld; and (b) the Affiliate enters into its own End User License Agreement with TypeSift.
l. TypeSift shall be permitted to display the Licensee’s logo, written and/or video endorsement of the Software on the TypeSift website unless the Licensee advises TypeSift otherwise in writing.
8. Termination of Agreement
a. This Agreement will remain in force indefinitely after the Signature Date provided that either party may at any time cancel this Agreement by giving the other party 90 (ninety) calendar days written notice to that effect.
b. TypeSift is entitled to terminate this Agreement upon written notice to the Licensee without prejudice to any other rights or remedies, including the right to claim damages that it may have in law, if the Licensee fails to comply with any material provision of this Agreement or is in a material default in payment of the License Fees and, in either case, does not cure any such breach within thirty (30) days after receipt by the Licensee of written notice of such breach from TypeSift.
c. Upon termination of this Agreement, you will cease to have any right to use the Software and the Licensee shall immediately cease all use of the Software. Upon the termination of this Agreement you shall return to TypeSift all originals and copies of the Software and any and all documents, materials and information relating to the Software supplied by TypeSift, whether in printed or electronic form, within your possession or control or, at TypeSift’s written direction, you shall uninstall and/or destroy all such materials.
d. Within 15 days after termination, an authorized representative of Licensee must certify in writing that all copies have been delivered to TypeSift or destroyed. Any terms in this EULA which by their nature extend beyond termination or expiration of this EULA will remain in effect until fulfilled.
a. TypeSift warrants that the Software: (a) will be free of all known viruses at the time of first delivery; and (b) will perform substantially in accordance with its accompanying Documentation for 60 days from the date of of receipt of the Software by the Licensee. TypeSift’s entire liability, and Licensee's sole remedy, for each breach by TypeSift of the warranty in: (i) clause (a) is limited to requiring TypeSift to deliver a replacement copy of the Software to Licensee free of known viruses; and (ii) clause (b) is limited to requiring TypeSift to correct or work around the portion of the Software giving rise to such breach within a commercially reasonable time, failing which TypeSift will refund all License Fees attributable to the portion of the Software giving rise to the breach.
b. The warranties do not apply to any breach caused by: (a) any change to the Software, except where the changes were made by TypeSift through Support Software; (b) Licensee's failure to provide a suitable installation or operating environment for the Software; (c) use of the Software on or caused by software, firmware, computer systems, data, technology or a hardware platform not approved by TypeSift in writing; (d) any telecommunications medium used by Licensee; (e) failure of Licensee or user to comply with the Documentation; or (f) failure of Licensee to report a warranty claim within the warranty period.
c. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS SECTION, TYPESIFT AND TYPESIFT’S LICENSORS MAKE NO REPRESENTATIONS OF ANY KIND AND DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUALITY, PERFORMANCE OR THE ADEQUACY OF THE SOFTWARE TO PRODUCE A PARTICULAR RESULT OR ITS CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. Without limiting the foregoing TypeSift does not represent or warrant that the functions contained in the Software will meet your requirements or that the Software will be error-free or will operate without interruption.
d. TypeSift represents and warrants that the Software and its use in accordance with this Agreement does not and will not infringe the intellectual property rights of any third party.
e. TypeSift represents and warrants that it has all legal rights to license the Software as per the terms of this Agreement.
a. TypeSift shall not be liable for any indirect (including loss of profit or revenues), special, incidental or consequential damages of any kind whatsoever and howsoever incurred which may be suffered by the Licensee or its clients or any other person arising from, relating to or in connection with the Software.
b. TypeSift shall not be liable for any loss or damage the Licensee or its clients or any other person may suffer as a result of, arising from or in connection with an error occurring in relation to the operation or use of the Software.
c. The Licensee acknowledges that no software is error-free and that the Software is provided to the Licensee “as is”.
d. This clause 10 shall survive the termination of this Agreement.
11. Limitation of Liability
In the event that TypeSift is found to be liable for any damages suffered by the Licensee or any third party (despite clause 9 and 10 hereof) such liability will be limited to an amount equal to the aggregate License Fees in respect of the Software paid by the Licensee to TypeSift during the three (3) month period immediately preceding the date upon which the claim for such damages arose. This provision shall survive termination of this Agreement. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS EULA WITHOUT THIS SECTION.
12. Governing Law
This Agreement is governed by and shall be interpreted with the laws in force in the Province of Ontario, Canada and both parties hereby consent to the jurisdiction of the federal and provincial courts sitting in Toronto, Ontario in respect of any dispute that may arise which is connected to this Agreement.
13. Contact Information
a. The Licensee shall not disclose the terms and conditions of this Agreement or the pricing, including the fee schedule, structure or payment terms contained therein to any third-party unless expressly authorized in writing by TypeSift.
b. TypeSift shall not be liable for a failure to perform any of its obligations in terms of this Agreement insofar as it is due to force majeure or an impediment beyond its reasonable control.
c. This Agreement is personal to the Licensee and the Licensee may not assign or otherwise transfer, or sublicense any portion of its interests, rights, or obligations under this EULA by written agreement, merger, consolidation, change of control, operation of law, or otherwise, without the prior written consent of TypeSift which consent shall not be unreasonably withheld. TypeSift shall be entitled to transfer and assign this Agreement to any third party on written notice to the Licensee to such effect.
d. Any notices required or permitted to be provided hereunder shall be in writing and shall be deemed to have been received five (5) business days after the post marked date thereof if sent by registered mail, the next business day following transmission if sent by fax or email, or at the time of delivery if hand delivered. Either party may change its address by notice in writing to the other.
e. This Agreement and Appendix A, Appendix B and Appendix C comprise the entire Agreement between the parties in relation to its subject matter, and it supersedes any prior written or oral agreement relating to the subject matter hereof.
f. No extension of time or indulgence granted by either party shall be deemed in any way to affect, prejudice or derogate from the rights of such party in any respect under this Agreement, nor shall it in any way be regarded as a waiver of any rights hereunder, or a novation of this Agreement.
g. TypeSift and Licensee are independent contractors. Neither party has any authority to bind the other in any manner.
h. Any amendment of this EULA must be in writing and signed by both parties.
i. Neither party will be deemed to have waived any of its rights under this EULA by lapse of time or by any statement or representation other than by a written waiver by a duly authorized representative. No waiver of a breach of this EULA will constitute a waiver of any prior or subsequent breach of this EULA. An assignment in contravention of this section will be null and void. Except to the extent identified in this subsection, this EULA will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
j. Except for payment and confidentiality obligations, or protection of intellectual property, neither party is responsible for any delay or failure in performance of this EULA to the extent due to causes beyond its reasonable control.
k. If any provision of this EULA is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the provision will be severed from this EULA and all remaining provisions will continue in full force.
l. Both parties have had an opportunity for legal review of the License Documents. The parties agree that the License Documents result from negotiation between the parties. The License Documents will not be construed in favor of or against either party by reason of authorship. The headings used in this EULA are for convenience only. The term section refers to all subsections below a section heading (i.e. 3.0) and the term subsection refers to sequentially numbered subsections following a section (i.e. 3.1). Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents et avis qui s'y rattachent ou qui s’y rattacheront, soient rédigés en langue anglaise The parties confirm that this Agreement and all related documentation is and will be in the English language.
All other terms and conditions of the EULA shall remain in full force and effect.
Appendix B - Definitions
“TypeSift Software” or “Software” means the business reports creation software comprising “TypeSift”, the TypeSift database and any updates, upgrades and enhancements thereto or associated therewith.
“Affiliate” means any entity controlled by, controlling, or under common control with a party to this EULA. Control exists through ownership, directly or indirectly, of a majority of the outstanding equity capital and of the voting interests of the subject entity. If an entity ceases to meet these criteria, it will cease to be an Affiliate under this EULA;
“Business Day” means any day other than a religious holiday, a Saturday, Sunday or public holiday officially recognized as such in the Province of Ontario.
“Commencement Date” means the date upon which the first User Account “goes live” and is activated by TypeSift at the Licensee, from which date the Software may be utilized by the User(s) in accordance with the provisions of this Agreement.
“Confidential Information” means technical, production, financial and marketing know how, methods, techniques, data strategies and trade secrets of the relevant party as well as each party’s computer technology (including without limitation the Software), business activities and products and general services and any other matters which relate to the business and affairs of each party which is non-public, confidential and not readily available to competitors of such party in the ordinary course of business and to which the other party, its employees and agents may gain access pursuant to the provisions of this Agreement.
“Equipment” means, collectively, the hardware and software required in order for the Licensee to utilize the Software, as provided to and installed at the Licensee by its third party service providers.
“EULA” or “Agreement” means this End User License Agreement together with all Appendices and schedules hereto.
“License Documents” means this EULA including any addenda, and any other documents provided by TypeSift setting out permitted uses of the Software.
“License Fee” means the fees payable to TypeSift by the Licensee for the license/s to use the Software as more fully set out in the Appendix A - License Fees (as amended from time to time in accordance with clause 5b).
"Proprietary Information" means: (i) with respect to TypeSift, the Software and Documentation, TypeSift Tools, any other third-party software licensed with or as part of the Software, benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications; (ii) the concepts, techniques, ideas, and know-how embodied and expressed in the Software, including their structure, sequence and organization and (iii) information reasonably identifiable as the confidential and proprietary information of TypeSift or Licensee or their licensors excluding any part of the TypeSift or Licensee Proprietary Information which: (a) is or becomes publicly available through no act or failure of the other party; or (b) was or is rightfully acquired by the other party from a source other than the disclosing party prior to receipt from the disclosing party; or (c) becomes independently available to the other party as a matter of right.
“Software License” means a license for the Software granted under this EULA to the Licensee.
“Support Software” means all maintenance and support software, updates, upgrades, patches, fixes or new versions of the Software provided to Licensee pursuant to a TypeSift maintenance and support program, together with all related Documentation provided to Licensee pursuant to such program.
“Signature Date” means the date on which the last party to sign this Agreement does so.
“Taxes” means the sales, use, consumption, goods and services, and value-added taxes imposed by the appropriate governments arising out of granting of licenses and delivery of Software under this EULA, except taxes imposed on TypeSift's income.
“User” means each single natural person employed by or contracted to the Licensee (whether on a permanent or temporary basis) authorized to utilize a User Account.
“User Account” means each distinct account to use the Software which is exclusive to an individual natural person and is protected by a username and password.
“Web Site” means http:// www._______________________.com.