TJPS Software Inc. License Agreement and Limited Product Warranty
This TJPS Software Inc. License Agreement and Limited Product Warranty, including the Order Form specifying the purchase of the Software which is by this reference incorporated herein (this "Agreement"), is a binding agreement between TJPS Software Inc. ("Licensor") and the person or entity identified on the Order Form as the licensee of the Software ("Licensee").
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" BUTTON/CHECKING THE "ACCEPT" BOX ON THE LAUNCHER, BY DOWNLOADING OR INSTALLING THE SOFTWARE, OR BY OPENING THE SOFTWARE PRODUCT PACKAGE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD OR INSTALL THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO RIGHT OR LICENCE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S SOFTWARE.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
1.5 "Licensee" has the meaning set forth in the preamble.
1.6 "Licensor" has the meaning set forth in the preamble.
1.10 "Term" has the meaning set forth in Section 11.1.
1.11 "Third Party" means any Person other than Licensee or Licensor.
1.12 "Update" has the meaning set forth in Section 6.1.
2. Licence Grant and Scope. Subject to and conditional on Licensee's payment of the Licence Fees and Licensee's strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited licence during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This licence grants Licensee the right, exercisable solely by and through Licensee's Authorized Users, to:
(a) will be the exclusive property of the Licensor;
(b) will be subject to the terms and conditions of this Agreement; and
(a) will be the exclusive property of Licensor;
(b) will be subject to the terms and conditions of this Agreement; and
2.4 transfer the Software from one computer to another, provided that the number of computers on which the Software is installed at any one time does not exceed the number permitted under Section 2.1.
4.1 Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(c) except as expressly set forth in Section 2.1 and Section 2.3, copy the Software or Documentation, in whole or in part;
6. Updates, New Versions and Maintenance.
6.2 With respect to any maintenance and/or support that Licensor provides for any given version or release of the Software, whether provided for on an Order Form or otherwise, Licensor reserves the right to discontinue such maintenance and/or support in its sole discretion, provided that if such maintenance or support is discontinued prior to the end of a term expressly provided for in an Order Form, Licensor will refund on a pro-rata basis the fees paid in return for such maintenance or support, for the balance of the remaining term.
7. Collection and Sole Use of Information.
7.1 Licensee acknowledges that Licensor may, directly or indirectly including through the services of Third Parties and including without limitation through the provision of maintenance and support services, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used.
(a) improving the performance of the Software or developing Updates; and
8. Confidentiality. Licensor will hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential information to any third party, except for its employees, affiliates, and contractors who have a need to know ( Permitted Recipients ). Recipient: (a) must ensure that its Permitted Recipients are subject to written confidentiality obligations no less restrictive than the Recipient s obligations under this EULA, and (b) is liable for any breach of this Section by its Permitted Recipients. Such nondisclosure obligation will not apply to information that : (i) is known by Recipient without confidentiality obligation
9. Intellectual Property Rights. Licensee acknowledges and agrees that that all right, title, and interest in and to the Software and Documentation are owned by and will remain with Licensor. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the licence granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor's Intellectual Property Rights in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights. All Licensor and Third Party Software, Documentation, and other materials are either patented, copyrighted, trademarked, constitute valuable trade secrets (whether or not any portion of them may be copyrighted or patented) or are otherwise proprietary to Licensor or Third Parties. You agree not to remove any logos, product names, product identification, trademarks or notices of the proprietary restrictions from the Software, the Documentation, or any other products or materials provided by Licensor.
11.5 Licensor may terminate this Agreement, upon reasonable notice, where Licensor has developed a New Version and indicates its intention to cease all development, maintenance, support and Updates for some or all existing versions or releases of the Software.
11.6 Upon expiration or earlier termination of this Agreement, the licence granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation, and permanently erase or cause to be erased from its and its Authorized Users' computer systems, files, and storage media all copies of the Software and Documentation of Licensor obtained, made, or authorized to be made by Licensee or on Licensee's behalf. Licensor grants Licensee a limited, non-exclusive, non-transferable and non-sublicensable license to retain one copy of the Software solely for the purposes of archiving and retrieval of historical data, and not for ongoing business use. No expiration or termination shall affect Licensee's obligation to pay all License Fees and other fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 6.2.
11.8 The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 1, Section 7.2, Section 8, Section 11, Section 12, Section 13, and Section 14.
12. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.
12.1 Solely with respect to Software for which Licensor receives a Licence Fee, Licensor warrants that, for a period of thirty (30) days following the licence date set forth on the Order Form any media on which the Software is provided will be free of material damage and defects in materials and workmanship under normal use. In case of any such material damage or defect, Licensor's entire liability and your exclusive remedy shall be a new copy of the Software upon presentation of a copy of the purchase receipt issued by Licensor.
12.2 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 12.1, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE LICENSOR PROVIDES NO CONDITION, WARRANTY, OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
13.3 THE LIMITATIONS SET FORTH IN SECTION 12.1 AND SECTION 12.2 SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
15.5 Entire Agreement. This Agreement, together with the Order Form, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter, including for greater certainty any agreement entered into prior to this agreements entitled TJPS Software Inc. License Agreement and Limited Product Warranty , TJPS Software Inc. License Agreement , or any other similarly titled agreement addressing your use of the Software, including without limitation the Software entitled Write-Up .
15.6 Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, to a Third Party unless such Third Party agrees to accept the terms and conditions of this Agreement and provided that Licensee transfers all copies of the Software and Documentation whether in printed or machine readable form to such Third Party, or destroy any copies not transferred. Any such assignment or transfer terminates all right and licence granted to the assignor or transferor. Any purported assignment, delegation, or transfer in violation of this Section 15.6 is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
15.13 Changes. Licensor has the right, in its sole discretion, to add to, remove, modify, to impose new or additional rules, policies, terms or conditions on Licensee s use of the Software or otherwise change any part of this Agreement, in whole or in part, at any time. Changes will be effective as of the date that Notice is deemed received in accordance with the provisions of Section 15.4. If any change to this Agreement is not acceptable to Licensee, Licensee must discontinue its use of the Software and delete all copies of the Software immediately. Licensee s continued use of the Software after being notified of any such changes will constitute acceptance of those changes.
15.14 Language. The parties have required that this Agreement and all documents relating thereto be drawn up in English. Les parties ont demand que cette convention ainsi que tous les documents qui s y attachent soient r dig s en langue anglaise.
Appendix A
Data Protection Addendum
This Data Protection Addendum forms part of the TJPS Software Inc. License Agreement and Limited Product Warranty ( EULA ) entered into by and between TJPS Software Inc. ( Write-Up ) and the end-user of the Write-Up application and/or their employer ( Company ) and is effective as of the Effective Date defined in the EULA. In case of any conflict between the provisions of this Data Protection Addendum and the EULA, the provisions of this Data Protection Addendum will prevail.
Capitalized terms used herein and not otherwise defined in the EULA shall have the meanings set forth in this Section 1.
1.1. Agreement means the EULA, including this Data Protection Addendum.
1.2. "Authorized Persons" means employees and Data Sentinel's contractors, agents, and other personnel who have a need to know or otherwise access Personal Information to enable Write-Up to perform its obligations under this Agreement, and who are bound in writing by confidentiality and other obligations sufficient to protect Personal Information in accordance with the terms and conditions of this Agreement.
1.3. "Data" has the meaning set out in Section 2(a)(i).
1.4. "Personal Information" means information about an identifiable individual.
1.5. Privacy Laws has the meaning set out in Section 2.2.
1.6. Security Breach has the meaning set out in Section 3.3.
2.1. Write-Up acknowledges that in its performance of its obligations under this Agreement and in providing the Services it may have access to:
(a) Personal Information;
(b) Company-licensed third-party data; and
(c) other data relating to Company or its customers, potential customers, and/or end users (collectively, the "Data").
2.2. Write-Up agrees that it shall use and maintain the Data on Company's behalf solely for the purposes of and in accordance with the terms of this Agreement and to provide the Services, and in compliance with all applicable laws, legal rules and regulations, including all Canadian federal and provincial laws, rules, regulations, industry standards, codes and practices with which Write-Up is required or has voluntarily agreed to comply as each relate to the protection of Personal Information and the Data, including without limitation, [the Personal Information Protection and Electronic Documents Act (Canada) (S.C. 2000, c.5) and all substantially similar provincial laws (collectively, "Privacy Laws").
3.1. Write-Up shall:
(a) only use the Data to fulfill the Agreement and to carry out the Services, and for no other purpose of any kind whatsoever, without Company's written authorization;
(b) not share the Data with any third party except as may be required to carry out the Services, as agreed upon by Company, in writing;
(c) not disclose or permit any employee, contractor, agent, or other third parties to disclose the Data, or any
part thereof, other than to Authorized Persons who have agreed to abide by the terms of this Data Protection Addendum or as Company may otherwise authorize in writing, and who are bound in writing by privacy, confidentiality, and other obligations sufficient to protect Personal Information in accordance with the terms and conditions of this Agreement;
(d) enter into a written contract with each subcontractor that will process Data on behalf of Write-Up that contains terms substantially the same as those set out in this Data Protection Agreement. Where the subcontractor fails to fulfill its obligations under such written agreement, Write-Up remains fully liable to the Company for the subcontractor's performance of its agreement obligations;
(e) maintain the Data only for as long as is necessary for the provision of the Services, or as may be required by law, whichever is longer;
(f) implement and maintain a written information security program including appropriate policies, procedures, and risk assessments that are reviewed at least annually, and employ administrative, physical, and technological safeguards to protect the Data in an environment secure against loss, theft, unauthorized access, acquisition, disclosure, destruction, alteration, copying, misuse, modification, and accidental loss or damage, that are no less rigorous than accepted industry standards and practices, and shall ensure that all such safeguards, including the manner in which the Services are provided and Data is created, collected, accessed, received, used, stored, processed, disposed of, and disclosed, comply with applicable data protection and privacy laws, as well as the terms and conditions of this Agreement;
(g) notify the Company immediately if it receives any complaint, notice, or communication that directly or indirectly relates to the Personal Information processing or to either party's compliance with Privacy Laws;
(h) notify the Company promptly upon receiving a request from an individual for access to their Personal Information or a request to correct, delete, or withdraw consent from any use of same by Company or Write-Up;
(i) give the Company its full co-operation and assistance in responding to any complaint, notice, communication, or individual request;
(j) not disclose the Personal Information to any individual or to a third party unless the disclosure is either at the Company's request or instruction, permitted by this Agreement, or is otherwise required by law;
(k) cause each of its officers, employees, and agents to comply with all Privacy Laws, and all other laws, rules, and regulations applicable to the Data to the same extent that Company is required to comply with such laws, rules and regulations;
(l) not acquire any express or implied rights, title, or interest in the Data, which shall always remain the exclusive property of Company;
(m) notify Company immediately of any breach of the representations, warranties, obligations, and agreements set out in this Data Protection Agreement and use its best efforts to cooperate with Company to remedy such breach;
(n) upon termination or expiration of this Agreement or at Company's immediate request, unless otherwise directed by Company, destroy all Data in its possession within five (5) days of termination or expiration/return the Data to Company within [NUMBER OF DAYS] of termination or expiration] and have an authorized signing officer certify in writing or sign an affidavit and confirm in writing that no copies of the Data have been retained by Data Sentinel, its employees, agents or subcontractors.
3.2. Cross-border transfers. Write-Up agrees that the Data shall always remain in Canada. Write-Up shall not relocate the equipment, databases, or documents containing any Data (including any redundant or back- up environments) anywhere outside of Canada without Company's prior written consent.
3.3. Security Breaches. Write-Up will promptly notify the Company if it becomes aware of any act or omission that compromises the security, confidentiality, or integrity of Personal Information or the physical, technical, administrative, or organizational safeguards put in place to protect it, including without limitation the loss of or unauthorized access, disclosure, or acquisition or processing of Personal Information ( Security Breach ).
3.3.1. Immediately following any Security Breach, the parties will co-ordinate with each other to investigate the
matter. Write-Up will reasonably co-operate with the Company in the Company's handling of the matter, including:
(a) assisting with any investigation;
(b) providing the Company with physical access to any Write-Up facilities and operations affected;
(c) facilitating interviews with Data Sentinel's employees, former employees, and others involved in the matter; and
(d) making available all relevant records, logs, files, data reporting, and other materials required to comply with all Privacy Laws or as otherwise reasonably required by the Company.
3.3.2. Write-Up will not inform any third party of any Security Breach without first obtaining the Company's prior written consent, except when Privacy Laws, or other laws or regulations, require it.
3.3.3. Write-Up agrees that the Company has the sole right to determine:
(a) whether to provide notice of the Security Breach to any individuals, regulators, law enforcement agencies or others, as required by Privacy Laws or other laws or regulations, or at the Company's discretion, including the contents and delivery method of the notice; and
(b) whether to offer any type of remedy to affected Individuals, including the nature and extent of such remedy.
3.3.4. Write-Up will cover all reasonable expenses associated with the performance of the obligations under Section 3.3, unless the matter arose from the Company's specific instructions, negligence, willful default or breach of this Data Processing Addendum, in which case the Company will cover all reasonable expenses.
3.3.5. Write-Up will also reimburse the Company for actual reasonable expenses the Company incurs when responding to and mitigating damages, to the extent that Write-Up caused a Security Breach, including all costs of notice and any remedy as set out in Section 3.3.3.
3.3.6. Write-Up will maintain records of any Security Breach in accordance with Privacy Laws.
4. Indemnity. Write-Upshall indemnify, save, defend, release, and hold harmless Company and its Affiliates and their respective officers, directors, employees, agents, successors, and permitted assigns (collectively, the "Company Indemnitees"), from and against any and all liabilities, losses, damages, expenses, fees, settlements, penalties, and costs (including legal fees, court costs, and expenses related to its defence), resulting from any claim, suit or action brought against the Company Indemnitees, arising out of, resulting from, or related to Data Sentinel's failure to comply with any of the provisions set out in this Data Protection Addendum.
5. Audit. Company may, at its expense, upon reasonable prior written notice, appoint its own personnel or an independent third party to verify that Data Sentinel's use of Data complies with the terms of this Agreement. Such verification may include an onsite audit conducted at Data Sentinel's relevant places of business, which will occur during regular business hours and shall not unreasonably interfere with Data Sentinel's business activities. If such verification shows that Write-Up is using Data in any way not permitted under or in breach of this Agreement, Company shall be able to terminate the Agreement with immediate effect, and Company will receive a refund of all amounts prepaid by Company for the period from the effective date of termination to the end of the Term.