DatasymPRO End User Licensing Agreement (“EULA”)
This software license agreement ("License"/”License Agreement”) is made as of the date of complete submission of this form and between Datasym POS Inc. (“DATASYM”/”Licensor”) an Ontario corporation with offices located at 45 Dalkeith Drive, Suite 18, Brantford, Ontario, and the company stated above, name entered at the input box marked "Company / Store Name"(“Licensee”).
These Terms apply to the DatasymPRO Software (the “Product”).
BY CLICKING THE ACCEPTANCE BUTTON, THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT (“LICENSEE”) IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE LICENSEE MUST NOT INSTALL OR USE THE SOFTWARE. IN ADDITION, THE LICENSEE AGREES TO, AND GIVES ITS EXPRESS CONSENT TO BE CONTACTED PERIODICALLY BY DATASYM, OR BY AN APPROVED DATASYM PARTNER OR RESELLER, WITH INFORMATION PERTAINING TO THEIR PURCHASE AND USE OF THE SOFTWARE.
1. Definitions: The following definitions shall apply:
a) Authorized Facility means the retail facility/facilities of Licensee set out above.
b) Authorized Person means a person or organization who is authorized by DATASYM to receive Confidential Information and who agrees to maintain the confidentiality of such Confidential Information.
c) Authorized Computer means that certain computer system owned, leased or controlled by Licensee on which the Licensee chooses to install and use any of the software modules from which to access the licensed software.
d) Confidential Information means all material, documentation or information of a Party ("Discloser") which is identified as proprietary or confidential to the other Party ("Recipient"), or which Recipient knows or should reasonably know or believe to be proprietary or confidential at the time such information comes into the possession or knowledge of Recipient, except solely if and to the extent such material, documentation or information is:
i) already known to Recipient, and not subject to any confidentiality, non-disclosure or non-use obligation, at the time Recipient obtains or receives same from Discloser;
ii) in the public domain at the time Recipient obtains or receives same from Discloser;
iii) conveyed to Recipient by a third party, except if such conveyance is subject to a confidentiality, non-disclosure or non-use obligation or Recipient knows or should reasonably know or believe that such third party is subject to a direct or indirect confidentiality, non-disclosure or non-use obligation regarding such material, documentation or information; or
iv) independently developed by Recipient without reference to any Confidential Information of Discloser. For purposes of this definition, Confidential Information of DATASYM shall be deemed to include all information concerning this License, the Product, the Software, the Documentation, and all commercial, technical or business information of DATASYM related to same.
e) Defects means programming or design errors which substantially impair the performance, utility and functionality of the Software on the Computer as expressly represented in the Documentation.
f) Documentation means any published and generally available Software documentation (to include, user, operational, and set up guides) that will be provided to the Licensee on CD.
g) EULA Details means that information set out in the table above and entitled ‘EULA DETAILS’.
h) Implement means to load and make available for user access. The term "Implement" includes but is not limited to, the terms "Implementation", "Implementing" and "Implemented”.
i) License Fee means the $100.00 USD per terminal annual license fee.
j) License Term: The term "License Term" shall mean a period of time starting with the Effective Date and continuing until this License is terminated or canceled pursuant to the terms of this License.
k) Software means the executable code for that certain Software Suite and related Documentation, more completely described in the EULA Details, as made available to Licensee by DATASYM.
l) DATASYM Property means any and all property and rights owned or held by Licensee, its customers, or any of its affiliates, including, without limitation, the Software, the Documentation, any corrections, bug fixes, enhancements, updates, upgrades, custom modifications, and other modifications to the Software and/or Documentation, any other software and documentation, any hardware, invention, idea, work, mark, goodwill, information (including, without limitation, Confidential Information of Licensee or any of its affiliates) and intellectual property of any kind owned, held, used, utilized, provided or made available by Licensee, its affiliates, or any of their employees, agents or contractors, and any change, addition, amendment, customization, derivation, derivative work, translation and/or transliteration thereof, and all patent, copyright, trademark, trade secret and other proprietary or intellectual property rights in and to any of the foregoing and/or any part thereof.
2. Scope of License:
a) Grant of License: Upon payment of the License Fee and Maintenance Fee, DATASYM hereby grants to Licensee a limited, non-exclusive, terminable, non-assignable, and non¬-transferable right to use the Software on the Authorized Computer at the Authorized Facility (the “License”), and to use the Documentation at the Authorized Facility, for the License Term in accordance with the terms and provisions of this License for Licensee’s internal business purposes, for use by the Licensee’s customers for their business purposes, and for such uses for which the Software and Documentation has been provided to Licensee.
b) Acceptance of Software: DATASYM shall deliver the Software to Licensee on the Delivery Date specified in EULA Details and the Software shall be deemed Accepted by Licensee as of the Delivery Date.
c) Implementation: This agreement does not contemplate Implementation services by DATASYM. If Licensee desires for DATASYM to Implement the Software for Customer, such Implementation services will be addressed in a separate Statement of Work executed by the parties.
d) Risk of Loss: Licensee shall assume risk of loss to the Software as of the Delivery Date.
e) Authorized Use: Licensee shall only access the Software for the exclusive purposes of performing point of-sale transactions and managing its point-of-sale system, integrating the Software with other software used by the Licensee or its customers as applicable, evaluating the performance, utility and functions of the Software, and training employees of Licensee or its customers in the use of the Software. Licensee shall further restrict Software access to: (1) employees of Licensee or its customers authorized by Licensee or its customers to access the Software for the purposes of performing point-of-sale transactions and managing the point-of-sale system, integrating the Software with other software used by the Licensee or its customers, evaluating the performance, utility and functions of the Software, and training employees of Licensee or its customers in the use of the Product and (2) Authorized customers or Persons who are authorized by DATASYM or Licensee to access the Product. Licensee shall promptly inform DATASYM of any and all real or suspected unauthorized access and any real or suspected unauthorized users of which Licensee has knowledge or suspicion.
f) Site Restriction: Licensee shall use the Software only on Authorized Computers and Authorized Facility.
g) Any License to an existing version of Software may, at the discretion of DATASYM, expire when new versions of Software are released. DATASYM reserves the right to add additional features or functions to existing Software, or to add new applications to the Software, at any time. Licensee may be required to review and accept current revised license agreement prior to receiving any subsequent versions of Software.
h) Notwithstanding the foregoing, DATASYM has no obligation to make available to you any subsequent versions of Software. You may not distribute or copy (other than for backup purposes) Software. You may not modify, reverse-engineer, decompile, disassemble, or otherwise discover or disassemble Software or equivalent of Software in any way. You do not have the right to create derivative works of Software, and you agree not to attempt, or allow others to attempt, to reverse-engineer Software and/or modify Software source code. Any and all such modifications or enhancements to Software by you, DATASYM, or our business associates shall remain our sole property. You further agree not to access our software applications by any means other than as permitted hereunder.
DATASYM reserved all rights in Software not expressly granted to Reseller in this agreement.
Except as otherwise expressly permitted in this Agreement, or in another Supplier agreement to which Licensee is a party such as the Supplier Developer’s Kit license agreement, or the Supplier OEM Distribution Agreement, Licensee may not:
a) modify or create any derivative works of the Product or documentation, including translation or localization;
b) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Product (except to the extent applicable laws specifically prohibit such restriction);
c) redistribute, encumber, sell, rent, lease, sublicense or otherwise transfer rights to the Product;
d) remove or alter any trade mark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product; or
e) publish any results of benchmark tests run on the Product to a third party without Supplier’s prior written consent.
a) Fees: Licensee shall annually pay the License Fees to DATASYM and all renewals thereof as specified in EULA Details by pre-authorized credit card or as otherwise agreed to by DATASYM.
a) Termination for Cause. Either Party may terminate this License Agreement for a material breach of contract by the other Party that has not been cured within sixty (60) days of receiving notice of said breach. Either Party must notify the other of such material breach in writing in accordance with the Notice provisions in the Agreement.
b) Insolvency: Either Party may terminate this License Agreement with at least fifteen (15) days’ prior written notice of termination to the other Party if such other party becomes insolvent, or voluntarily or involuntarily bankrupt, or is unable to meet its obligations when due (including payments due to DATASYM), or if a receiver or other liquidating officer is appointed for substantially all of such other Party’s assets or business, or if that such other Party makes an assignment for the benefit of its creditors.
c) Effect of Termination: Notwithstanding anything to the contrary in this License Agreement, termination of this License Agreement shall not limit either Party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve Reseller’s obligation to pay all fees that accrued prior to such termination. If this License Agreement is terminated, each Party shall, at the other Party’s written request return the other Party’s property and confidential information, and all copies or manifestations thereof, and irrevocably delete any copy or manifestation that cannot be returned and certify to the other Party within (30) thirty days after termination of this License Agreement that it has done so. This requirement applies to copies and manifestations in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials. DATASYM shall be entitled to retain any and all fees and other payments received by DATASYM, and Reseller shall promptly pay all amounts owing to DATASYM in connection with Products and services for which the Reseller has taken delivery from DATASYM hereunder prior to the termination of this License Agreement.
d) Unless the License provides notice to the Licensor of its intent to terminate this Agreement not less than thirty (30) days before the end of the current term, at the option of the Licensor this Agreement shall automatically renew for one (1) year terms, on the same terms and conditions herein, except for the License Fee which shall be the License Fee in effect at the time of such renewal/s.
6. Proprietary Rights
Title, ownership rights and intellectual property rights in the Product shall remain in Supplier and/or its suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Supplier’s or its suppliers’ ownership of or rights with respect to the Product. The Product is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Product is the property of the applicable content owner and is protected by applicable law. The license granted under this Agreement gives Licensee no rights to such content.
7. Disclaimer of Warranty
THE PRODUCT IS PROVIDED WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. IN ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE PRODUCT SUFFICIENTLY MEETS ITS REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED UNDER THIS AGREEMENT EXCEPT UNDER THIS DISCLAIMER.
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENCE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY SUPPLIER UNDER A SEPARATE SUPPORT AGREEMENT, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. SUPPLIER IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
IN NO EVENT WILL DATASYM OR ANY OF THE FOREGOING ENTITIES’ OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (COLLECTIVELY “PROTECTED PARTIES”) BE LIABLE FOR ANY INDIRECT DAMAGES, INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LEGAL FEES, ARISING OUT OF, END-USER LICENSE AGREEMENT, OR YOUR USE OR INABILITY TO USE THE PRODUCTS EVEN IF A PROTECTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PROTECTED PARTIES’ MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT, OR OUR PRIVACY STATEMENT, EXCEED THE REVENUE ACTUALLY RECEIVED BY US DIRECTLY ATTRIBUTABLE TO THE SOFTWARE.
Because some jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Protected Parties’ liability shall be limited to the extent permitted by law.
Protected Parties assume no liability hereunder for, and shall have no obligation to defend you or to pay costs, damages or attorneys’ fees for, any claim arising from:
a) any method or process in which Products may be used by you;
b) any results of using Products;
c) any use of other than a current unaltered release of Products; or
d) the combination, operation or use of any Products furnished hereunder with any other software. if such infringement would have been avoided by avoidance of the combination, operation or use of the Products with other programs, data or other materials.
9. U.S. Export Control Provisions
Licensee agrees to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Product or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licences and/or exemptions with respect to its own export of the Product from the U.S. Neither the Product nor the underlying information or technology may be downloaded or otherwise exported or re-exported: into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions covering the Product, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Denial Orders. By downloading or using the Product, Licensee agrees to the foregoing and represents and warrants that it complies with these conditions. If the Product is identified as being not-for-export (for example, on the box, media or in the installation process), then, unless Licensee has an exemption from the United States government, the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE PRODUCT AND ANY UNDERLYING ENCRYPTION TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR “FOREIGN PERSON” AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE PRODUCT, LICENSEE AGREES TO THE FOREGOING AND WARRANTS THAT IT IS NOT A “FOREIGN PERSON” OR UNDER THE CONTROL OF A “FOREIGN PERSON”.
10. Reverse engineering; copies; modifications:
a) Reverse Engineering: Licensee shall not, directly or indirectly, reverse engineer the Software and shall not allow the Software to be reverse engineered.
b) Backup Copy: Licensee may create one copy of the Software at, and keep such copy at, the Authorized Facility only for routine archival or backup purposes. Such copy shall be subject to the return and/or disclosure obligations under this License. Licensee shall not make or cause to be made any other copies of the Software.
c) Modifications: Licensee shall not modify, or allow to be modified, the Software, the Documentation or any part thereof without the prior written consent of DATASYM. Licensee shall not use the Software, the Documentation or any part thereof, or any materials incident thereto to develop any derivative works including computer software, except for the sole purpose of integration or interface with Licensee’s other software, without the prior written consent of DATASYM. If the Product, the Software, the Documentation or any part thereof, is modified, such modifications the sole and exclusive property of DATASYM and DATASYM shall own any and all of the rights, title and interests to such modifications and any resulting computer software, including (but not limited to) any and all copyrights, patents and trade secrets related thereto.
d) No Contest: Licensee shall not contest or aid in contesting the ownership or validity of any DATASYM Property, including, without limitation, the patents, trademarks, service marks, trade secrets or copyrights of DATASYM, its affiliates or licensors.
e) Injunctive Relief: The Parties agree that damages alone will be an insufficient remedy for violations of any of the provisions of this Article 11, and that DATASYM or any affiliate of DATASYM would suffer irreparable damage as a result of a violation. Accordingly, in the event of a breach of this Section, DATASYM shall be entitled to injunctive relief. Such relief shall be in addition to any and all other rights or remedies available to DATASYM under this contract or at law. Assertion or the failure to assert injunctive relief shall not constitute a waiver of any such other rights or remedies.
a) This Agreement constitutes the entire agreement between the parties concerning the subject-matter hereof.
b) This Agreement may be amended only by a writing signed by both parties.
c) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of Ontario, excluding its conflict of law provisions.
d) Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in Ontario, pursuant to the Arbitration Act, 1991, SO 1991, c 17, with the losing party paying all costs of arbitration.
e) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
(f) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.
(g) The controlling language of this Agreement is English. If Licensee has received a translation into another language, it has been provided for Licensee’s convenience only.
(h) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
(i) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination.
(j) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of Licensee’s assets to another entity.
(k) This Agreement shall be binding on and shall enure to the benefit of the parties, their successors and permitted assigns.
(l) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
(m) The relationship between Licensor and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind Licensor in any way.
(n) If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith.
(o) If any Supplier professional services are being provided, then such professional services are provided pursuant to the terms of a separate Professional Services Agreement between Supplier and Licensee. The parties acknowledge that such services are acquired independently of the Product licensed hereunder, and that provision of such services is not essential to the functionality of such Product.
(p) The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning.
(q) Licensor may use Licensee’s name in any customer reference list or in any press release issued by Licensor regarding the licensing of the Product and/ or provide Licensee’s name and the names of the Product licensed by Licensee to third parties.
(r) By your acceptance hereto, you agree to receive Licensee’s newsletters, updates and information about the Product.
(s) By your acceptance, you consent to the collection of telemetry data by Datasym POS Inc or any other authorized agent for support or other purposes.
(t) The contents of this EULA are subject to change without notice.
12. Licensee Outside the U.S.
(a) If Licensee is located outside the U.S., then the provisions of this Section shall apply.
(b) Les parties aux présentes confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s’y rattache, soient rédigés en langue anglaise. The parties confirm that this Agreement and all related documentation is and will be in the English language.
(c) Licensee is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Product, and Licensee represents that it has complied with any regulations or registration procedures required by applicable law to make this licence enforceable.