IT IS IMPORTANT THAT YOU CAREFULLY READ ALL OF THE FOLLOWING TERMS INCLUDING EXHIBIT ‘A’ AND INDICATE YOUR ACCEPTANCE BY CHECKING "I HAVE READ THE SERVICE AGREEMENT AND I AGREE TO ITS TERMS" CHECKBOX. IF YOU DO NOT ACCEPT ANY PART OF THE FOLLOWING TERMS, DO NOT ATTEMPT TO USE THE SERVICE
This Application Service Agreement (further referred as "Agreement") is made and effective this <date>, by and between <company name> ("Licensee"), located at <company address> and actiTIME Inc. ("actiTIME") located at 21 Draper Blvd, Vaughan, Ontario, L4J 5Y8 Canada.
WHEREAS, actiTIME is the sole and exclusive owner of actiPLANS, which is a web-based time planning software system ("software"); and
WHEREAS, Licensee desires to license and obtain a remote access to the Software.
NOW, THEREFORE, in consideration of the mutual promises, the parties agree as follows:
1. License Grants and Ownership Rights
A. Subject to Licensee's compliance with the terms and conditions of this Agreement at all times, actiTIME grants Licensee a limited, non-exclusive and non-transferable right to remotely access and use the Software ONLY by Licensee's personnel and ONLY for the internal needs within Licensee's organization. This right is granted for the term specified in section 9-A hereof.
B. Licensee may not: (i) attempt to modify the Software or derive its source code; (ii) create any programming code, scripts or application that will attempt to access Software interfaces and stored data; (iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer the Software or rights thereto; (iv) publish, or otherwise make available to any third party, any benchmark information or testing results; (v) share the Software or any parts of the Software with any commercial or non-commercial organization as a part of other products or as a component of Licensee's services.
C. All right, title and interest, including without limitation, all intellectual property rights in and to the Software shall remain the property of actiTIME at all times. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with actiTIME ownership and rights with respect to the Software. Licensee agrees that this Agreement doesn’t apply any restriction for actiTIME work with other licensees in the same industry and target markets in which the Licensee currently does business or may do business at any time.
D. Licensee will be the owner of all data or information created by Licensee and its authorized users and stored within the Software ("Licensee Data").
E. Licensee hereby grants actiTIME a non-exclusive, free of charge, world-wide and irrevocable license permitting actiTIME to copy, anonymize and process Licensee Data to derive anonymous statistical and usage information related to the functionality of the Software. Licensee confirms that actiTIME can use derived statistical data at its sole discretion without Licensee consent, provided such data cannot be used to identify Licensee or its individual users.
A. actiTIME agrees to provide Licensee with electronic access to the Software hosted and maintained by or on behalf of actiTIME.
B. actiTIME shall make the Software available via the Internet and use commercially reasonable efforts to provide access to the Software on a twenty-four hours a day, seven days a week basis. Licensee shall be responsible for all equipment and software required for Licensee to access the Internet and the Software including, without limitation, a web browser compatible with the Software.
C. Licensee acknowledges that actiTIME cannot warrant that Licensee will be able to access the Software or Licensee Data at all times. actiTIME will not be liable for inaccessible or inoperable Software or Licensee Data or access thereto should such event happen for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs, which actiTIME or Internet Service Providers may undertake from time to time; or (iii) causes beyond the control of actiTIME including, without limitation, interruption or failure of telecommunication or digital transmission links, delays or failures due to Internet Service Provider, network attacks, network congestion or other failures.
D. actiTIME will maintain the Software and may at its sole discretion develop and release new versions of the Software and perform upgrades of the Software.
E. actiTIME will create and store periodical backup copies of Licensee Data. actiTIME does not provide any warranty and disclaims any liability in respect of such backup copies as well as Licensee Data safety, consistency and integrity. Licensee bears the entire risk for any loss of Licensee Data or its quality.
F. actiTIME will provide Licensee with the technical support services through email and phone consultations regarding the configuration and use of the Software. Requests for support can be sent by email to firstname.lastname@example.org or left as a voice message at +1 (877) 571 53 65 toll-free phone number. Responses on support requests are provided on the best effort basis with 48-hour average response time. actiTIME does not guarantee time of response and under no circumstances should be liable for not responded requests.
G. Licensee may request actiTIME services beyond the scope of this Agreement. If actiTIME is able and willing to provide such services, their scope and provision shall be subject to a separate written agreement.
3. Fees and Payment Terms
A. Licensee shall pay actiTIME recurring usage fees described in Exhibit A “Fees and Payment Schedule” (“Schedule”). All fees are payable in advance within 15 calendar days from the date of actiTIME’s invoice. Invoices for recurring payments will be issued 15 calendar days before the end of the last paid period.
B. If Licensee fails to make payment on time, actiTIME may at its sole discretion suspend Licensee’s access and use of the Software upon 24-hour prior notification. Licensee’s failure to remedy its non-payment may result in actiTIME’s termination of this Agreement without any prejudice to actiTIME’s right to collect fees owed to it by the Licensee or to pursue other remedies available to it.
C. Licensee may choose to follow either one-month, or three-month, or six-month, or one-year payment period. At the end of each payment period Licensee may choose different length of the next payment period and change the number of user accounts.
D. All payments made by Licensee are non-refundable without any exception (including termination of Agreement by Licensee, or by actiTIME for Licensee’s breach of any terms of this Agreement).
E. actiTIME reserve the right to change fees specified in the Schedule with 30-day prior notification to Licensee. New fees will apply to the next (not paid yet) payment period and will become a part of the Schedule.
F. Fees set out in the Schedule are exclusive of all third party transaction, sale or service fees and any applicable taxes, all of which shall be borne and paid by Licensee.
4. Independence of operations
Nothing contained in this Agreement shall be construed to imply a joint venture, partnership or principal-agent relationship between the parties. And neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
A. Each party acknowledges that it may have access or receive "Confidential Information" from the other party in connection with its performance under this Agreement, either in writing or verbally. Each party hereby agrees to maintain the confidentiality of all such information and not disclose such information to third parties except to employees authorized to receive such information or make any use of such information, except in carrying out its obligations under this Agreement. Information considered confidential by either party includes without limitation (a) matter of a technical nature such as trade secret processes or devices, know-how, data formulas, inventions, (whether or not patentable or copyrighted), training materials, specifications and characteristics of products planned or being developed, and research subjects, methods and results, (b) matters of a business nature such as information about costs, profits, pricing policies, markets, sales suppliers, customers, employees, product plans, and marketing plans or strategies, (c) other information of a similar nature not generally disclosed by the either party to the public.
B. The obligations under this section shall not apply to information which (i) is or becomes generally known to the public through no fault of the receiving party; (ii) was known to the receiving party prior to the date it was disclosed by the other party; or (iii) is disclosed to the receiving party by a third party having no obligation of confidentiality to the other party with respect to such information. The terms of this section shall survive termination of this Agreement.
C. Licensee agrees that it can be identified as a customer of actiTIME and actiTIME may refer to Licensee name, trade name and trademark, if applicable, within actiTIME marketing materials and web site.
6. Disclaimer of warranty for the Software
The Software is provided with all faults on an "as is" basis. actiTIME, its licensors and other suppliers disclaim all warranties, whether express or implied, including the warranties that the Software is free of defects, virus free, and able to be accessed via the internet at all times or operate on an uninterrupted basis, that the functionality of the Software will meet Licensee’s requirements, or that errors in the Software will be corrected, and the implied warranties that the Software is of satisfactory quality, accurate, fit for a particular purpose or need, or non-infringing. Further, actiTIME, its licensors and other suppliers do not warrant or make any representations regarding the use or the results of the use of the Software in terms of their correctness, accuracy, reliability, or otherwise. No oral or written information or advice given by actiTIME or an actiTIME authorized representative shall create a warranty or in any way increase the scope of any warranty that cannot be disclaimed under applicable law. actiTIME and its licensors and other suppliers have no liability with respect to Licensee’s use of the Software. This disclaimer of warranty constitutes an essential part of this Agreement. No use of the Software is authorized hereunder except under this disclaimer.
7. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will actiTIME, or its respective parents, affiliates, directors, employees, distributors, suppliers, agents or resellers be liable for any direct damages exceeding the usage fee paid by Licensee during the twelve months period immediately preceding the damage claim, or for any other damages including without limitation indirect, special, incidental, consequential, or exemplary damages, arising out of or in any way relating to this Agreement, including, but not limited to lost profits, lost data, loss of goodwill, work stoppage, computer failure or malfunction, or any and all other damages or losses, even if actiTIME has been advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based.
Licensee agrees to indemnify, hold harmless, and at actiTIME’s request, to defend actiTIME, its affiliates, and its licensors from any and all costs, damages and reasonable attorneys' fees resulting from any breach of this Agreement by Licensee or any of Licensee’s directors, officers, employees or agents or claim that Licensee use of the Software has injured or otherwise violated any right of any third party or violates any law.
9. Term and Termination
A. This Agreement shall commence upon the effective date and shall continue for the duration of the prepaid period for which the Licensee has elected and paid, unless sooner terminated pursuant to this Section 9. This Agreement shall renew automatically for successive payment periods fully prepaid by Licensee, unless sooner terminated pursuant to this Section 9.
B. actiTIME at its sole discretion may terminate this Agreement at the end of the prepaid period and with 15 calendar days prior notification to Licensee.
C. actiTIME at its sole discretion may terminate this Agreement in accordance with Section 3-B or at any other time for any other breach of a term of this Agreement by the Licensee.
D. Sections 1-B, 1-C, 1-E, 3-D, 5, 6, 7, 8, 13, 14 and 15 shall survive the expiration or termination of this Agreement.
10. Force Majeure
Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
11. No Waiver
actiTIME’s failure to require strict performance of any provision of this Agreement, or the forbearance to exercise any right or remedy, shall not be construed as a waiver by it of any such right or remedy or preclude any other exercise thereof or the exercise of any other right or remedy.
Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein, without the prior written consent of actiTIME. actiTIME may assign this Agreement to any entity at its sole discretion.
13. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether written or oral. There are no conditions, covenants, agreements, representations, warranties or other provisions, express or implied, collateral, statutory or otherwise, relating to the subject matter hereof except as herein provided.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
15. Governing Law
This Agreement shall be interpreted and construed in accordance with the laws of the Province of Ontario, and the laws of Canada applicable therein. The parties hereby submit to the exclusive jurisdiction of the courts of the Province of Ontario.
The headings used in this Agreement are for convenience only and are not to be used in construction or interpretation.
In witness whereof,
this date <date>
On behalf of <company name> this Agreement
was accepted by <your name> (<your email address>)