General Terms and Conditions
By executing an ELL Technologies Order Form to which this Schedule A is attached to, you, Customer, agree that these ELL Technologies General Terms and Conditions (these “Terms”, or “General Terms”) govern your use of the ELL Technologies Product (as defined in the Order Form) and form a part of your Agreement with ELL Technologies. Unless otherwise provided in these General Terms, capitalized terms will have the meanings given to them in the Order Form.
1. License and Subscription
1.1 Software License. If an Order Form specifies that a License is being granted to Customer for the Software identified in the Order Form, then subject to the terms and conditions of this Agreement and Customer’s payment of the applicable License Fees specified in the Order Form, ELL Technologies hereby grants to Customer a perpetual, non-exclusive, non-transferable, non-sublicensable license to: (i) use and install the Software, in object-code form, solely during the License Term by the number of concurrent Users, on the number of servers and in the number and type of environments, and the number of business locations served by the Software, each as specified in the applicable Order Form; (ii) use the Documentation as reasonably necessary to support the licensed use of the Software during the License Term. Customer may only make a backup copy of the Software in whole or in part as necessary for Customer’s internal use of Software on a computer system. Customer shall cause each Affiliate to comply with the terms and conditions of this Agreement to the full extent as if such Affiliate were a party hereto, and any act or omission relating to this Agreement by such Affiliate shall be deemed an act or omission by Customer.
1.2 Service Subscription
(a) If an Order Form specifies that a Subscription to the ELL Technologies Service identified in the Order Form is being licensed by the Customer, then subject to the terms and conditions of this Agreement (including the applicable Order Form) and payment of the applicable Subscription Fees, ELL Technologies hereby grants to Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right to (A) access and use (and to permit Users to access and use) the ELL Technologies Service, solely during the Subscription Term by up to the maximum number of Users specified in the applicable Order Form; and (B) access and use, and to permit Users to access and use, the Documentation as reasonably necessary to support the Customer’s permitted use of the ELL Technologies Service during the Subscription Term.
(b) An User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Products. If Customer exceeds a contractual usage limit, ELL Technologies may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding ELL Technologies’ efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Products promptly upon ELL Technologies’ request, and/or pay any invoice for excess usage in accordance with the terms hereof.
(c) Unless otherwise provided in the applicable Order Form, (A) The ELL Technologies Service is purchased as a Subscription, (B) Subscriptions may be added during a Subscription Term at the same pricing as the underlying subscription pricing, prorated for the portion of that Subscription Term remaining at the time the subscriptions are added, and (C) any added Subscriptions will terminate on the same date as the underlying Subscriptions, (d) Subscriptions may be either monthly, or annual, or server based.
1.3 Software Licenses. Customer shall use the Software solely for Customer’s internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software available to any third party, other than to Users or as otherwise contemplated by this Agreement; (ii) use the Software in violation of applicable laws; (iii) reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the Software except to the extent the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary, (iv) unbundle any component of the Software and/or Documentation, (v) circumvent any user limits or other license timing or use restrictions that are built into the Software; (vi) build a product or service that is competitive with the Software; (vii) modify or create any derivatives of the Software and/or Documentation or merge all or any part of the Software and/or Documentation with another program; (viii) make the Software and/or Documentation available on a server that can be accessed via a public network, such as, for example and without limitation, the Internet, in a manner that allows the Software and/or Documentation to be copied by any third party; or (ix) except as expressly permitted in the Documentation, remove any trade-marks, copyright notices, restricted rights legends, proprietary markings and the like exactly as they appear on the copy of the Software originally provided to Customer.
1.4 ELL Technologies Service Subscriptions. Customer shall not (and shall not allow Users or any third party to): (i) possess, download or copy the ELL Technologies Service or any part of the ELL Technologies Service, including but not limited any component which comprises the ELL Technologies Service, but not including any output from the ELL Technologies Service; (ii) knowingly interfere with service to any of ELL Technologies’ users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing; (iii) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the ELL Technologies Service and/or Documentation, except to the extent that enforcement is prohibited by applicable law; (iv) circumvent any user limits or other timing or use restrictions that are built into the ELL Technologies Service; (v) sell, rent, lend, transfer, distribute, license, or grant any rights in the ELL Technologies Service or Documentation in any form to any person without the written consent of ELL Technologies; (vi) remove any proprietary notices, labels, or marks from the ELL Technologies Service or Documentation; (vii) use all or any portion of the ELL Technologies Service in the design, construction, operation or maintenance of any nuclear facility; (viii) create any “links” to or “frame” or “mirror” of the ELL Technologies Service or any portion thereof; (ix) build a product or service that is competitive with the ELL Technologies Service; (x) copy any ideas, features, functions or graphics of the ELL Technologies Service; or (xi) use the ELL Technologies Service in violation of applicable laws.
2. Customer Responsibilities and License
2.1 Customer is responsible for all activities that occur in User accounts and for its and its Users’ compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and the means by which Customer acquired Customer Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Products, and notify ELL Technologies promptly of any such unauthorized access or use; (c) use Products only in accordance with the Documentation and applicable laws and government regulations; (d) reconcile payment transactions daily with payment processor and/or the bank.
2.2 Customer is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Customer to access and use the ELL Technologies Service, and for all expenses relating thereto. Customer agrees to access and use, and shall ensure that all Users access and use, the ELL Technologies Service in accordance with any and all operating instructions or procedures that may be issued by ELL Technologies from time to time.
2.3 Customer grants ELL Technologies and its Affiliates a worldwide, limited-term license to host, copy, transmit and display Customer Data as necessary for ELL Technologies to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, ELL Technologies acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, or program code. For the purposes of the Agreement, “Customer Data” means the data provided by Customer that resides in Customer’s service environment in the ELL Technologies Service, including, but not limited to text, photographs, images, video clips, electronic data and information submitted by or for Customer to the ELL Technologies Service or collected and processed by or for Customer using the ELL Technologies Services. ELL Technologies shall abide by all relevant and applicable Privacy laws as governed in the territory where the Customer Data was collected.
3. Warranties and Disclaimers
3.1 Limited Warranties Applicable to Software Licenses.
(a) Warranties. ELL Technologies represents and warrants that: (i) the Software will perform materially in accordance with the Documentation for a period of thirty (30) days following the date of the receipt of the license key for the Software by the Customer; (ii) the Software, including any update thereto will not contain any Malicious Code at the time of delivery to Customer; (iii) it owns or otherwise has sufficient rights in the Software and Documentation to grant to Customer the rights to use the Software and Documentation granted herein; and (iv) to its knowledge, the Software and Documentation do not infringe any intellectual property rights of any third party.
(b) Remedy. In the event of a breach during the applicable warranty period of one or more of the warranties set forth in Section 3.1 hereof, ELL Technologies shall use reasonable commercial efforts to correct such breach of the warranty. If ELL Technologies is unable to remedy the breach of warranty within a reasonable time, ELL Technologies shall refund the purchase price of the Software.
(c) Exclusions. The foregoing warranty is only applicable if ELL Technologies receives written notice of a breach of warranty within thirty (30) days after the end of the applicable warranty period. Such notice must contain sufficient information regarding the circumstances under which the warranty breach can be observed. The warranty shall not apply to the extent that the breach is caused by misuse, negligence, accident, unauthorized modification, alteration, customization or repair, improper operation or maintenance.
3.2 Limited Warranties Applicable to the ELL Technologies Service.
(a) Warranties. ELL Technologies represents and warrants that (i) the ELL Technologies Service will perform materially in accordance with the Documentation during the Subscription Term; (ii) the ELL Technologies Service will not contain any Malicious Code; (iii) it owns or otherwise has sufficient rights in the ELL Technologies Service and Documentation to grant to Customer the rights to access and use the ELL Technologies Service and Documentation granted herein; (iv) ELL Technologies will not materially decrease the overall security of the ELL Technologies Service during the Subscription Term, and (v) to its knowledge, the ELL Technologies Service and Documentation do not infringe any intellectual property rights of any third party.
(b) Remedy. In the event of a breach of one or more of the warranties set forth in Section 3.2 hereof, ELL Technologies shall use reasonable commercial efforts to correct such breach of the warranty. If ELL Technologies is unable to remedy the breach of warranty within a reasonable time, ELL Technologies shall refund the Subscription Fee paid for the ELL Technologies Service.
(c) Exclusions. A notice of a breach of warranty must contain sufficient information regarding the circumstances under which the warranty breach can be observed. The warranty shall not apply to the extent that the breach is caused by misuse, negligence, accident, unauthorized modification, alteration, customization or repair, improper operation or maintenance.
3.3 Exclusive Remedies. THE WARRANTIES SET OUT IN SECTIONS 3.1 AND 3.2 HEREOF ARE THE ONLY WARRANTIES PROVIDED BY VOLANTE AND THE REMEDIES SET OUT IN SECTIONS 3.1(b) AND 3.2(b) HEREOF ARE THE SOLE AND EXCLUSIVE REMEDIES OF CUSTOMER FOR A BREACH OF WARRANTY.
3.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ELL TECHNOLOGIES MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NON-ELL TECHNOLOGIES APPLICATIONS AND BETA PRODUCTS ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. ELL TECHNOLOGIES DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
3.5 Internet Connectivity Disclaimer. ELL Technologies makes some of the Products available for access via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications and Internet connectivity necessary to access such Products over the Internet. Customer hereby acknowledges that the Products may be interrupted due to (a) website downtime for scheduled maintenance at ELL Technologies’ sole discretion, or (b) interruptions in Internet connectivity or other website downtime caused by circumstances beyond ELL Technologies’ control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, or delays involving hardware of software not within ELL Technologies’ control or network intrusions. Customer hereby acknowledges and agrees that ELL Technologies shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions and releases ELL Technologies from any claims relating thereto.
4. Limitation of Liability
4.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 4.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).
4.2 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
4.3 Application of Exclusions and Limitations. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL APPLY EVEN IF A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH COSTS, LOSSES OR DAMAGES OR KNEW OR OUGHT TO HAVE KNOWN OF SUCH COSTS, LOSSES OR DAMAGES AND SHALL APPLY REGARDLESS OF WHETHER THE ACTION AROSE IN CONTRACT, INCLUDING, WITHOUT LIMITATION, FROM A FUNDAMENTAL BREACH, OR BREACH OF A CONDITION, FUNDAMENTAL TERM OR WARRANTY, OR IN TORT (INCLUDING, WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE. THE FOREGOING PROVISIONS LIMITING THE LIABILITY OF ELL TECHNOLOGIES SHALL ALSO APPLY TO ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS AS TRUST PROVISIONS FOR THE BENEFIT OF SUCH OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS AND SHALL BE ENFORCEABLE BY SUCH PERSONS AS TRUST BENEFICIARIES.
5.1 The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
5.2 If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and this Agreement shall be reformed only to the extent necessary to make it enforceable under such circumstances.
5.3 This Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to any principles of conflicts of law, and shall be treated in all respects as an Ontario contract. The parties consent to the exclusive jurisdiction of the Courts of the Province of Ontario for the purpose of any action or proceeding brought by either of them in connection with or arising out of this Agreement and consent to the venue of such Courts in the City of Toronto in the Province of Ontario. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and the Uniform Computer Information Act does not apply to this Agreement.
5.4 This Agreement (including any related Order Form, Documentation, and relevant additional Agreements) is the entire agreement between Customer and ELL Technologies in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written license agreement with ELL Technologies.
5.5 Customer agrees that Customer’s purchase of Licenses or Subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by ELL Technologies with respect to future functionality or features.
5.6 Except for Order Forms accepted by ELL Technologies, the terms and conditions of this Agreement shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements, and shall prevail over any other communications between the parties in relation to the ELL Technologies Service, Software and Documentation and the ELL Technologies Service, Software and Documentation shall be deemed to be licensed pursuant to the terms and conditions of this Agreement. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
5.7 The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.