WHEREAS 'ERP34' (BinariesLid Ltd.) provides a hosted Internet-based online business management software service including offline components (collectively the "Service"), and you the 'Customer' wishes to subscribe to and use the Services;
THEREFORE the parties agree as follows:
1. Definitions and Construction
1.1 As used in this Agreement and in any Order Forms now or hereafter associated herewith the following definitions shall apply:
(b) "Content" means the audio and visual information, documents, software, products and services contained or made available to Customer in the course of using the Service;
(c) "Customer Data" means any data, information or material provided or submitted by Customer to the Service in the course of using the Service;
(d) "Effective Date" means the earlier of either the date this Agreement is signed by both parties or the date Customer begins using the Service;
(e) "Initial Term" means the initial period during which Customer is obligated to pay for the Service equal to the billing frequency selected during the subscription process (e.g., if the billing frequency is monthly, the Initial Term is the first month);
(f) "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
(g) "License Administrator(s)" means those Users designated by Customer who are authorized to purchase licenses online and to create User accounts and otherwise administer Customer’s use of the Service;
(h) "License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s);
(i) "Order Form(s)" means the document or other tangible form of communication evidencing the initial subscription for the Service and any subsequent such communication , specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);
(j) "ERP34 Technology" means all of ERP34's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by ERP34 in providing the Service;
(k) "Service(s)" means ERP34's online time tracking software and updates and revisions which ERP34 shall implement from time to time, to which Customer is being granted access via IP address under this Agreement, and includes the ERP34 Technology, the Content, and data transmission, access and storage;
(l) "User(s)" means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer.
2. License Grant & Restrictions
2.1 ERP34 hereby grants Customer a non-exclusive, non-transferable, worldwide right to use the Service, solely for Customer’s own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Customer are reserved by ERP34.
2.2 Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
2.3 Customer may use the Service only for Customer’s internal business purposes and shall not: (i) upload or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (ii) knowingly upload or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (iv) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Customer Responsibilities
3.1 Customer is responsible for all activity occurring under Customer’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) notify ERP34 immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to ERP34 immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer; and (iii) not impersonate another ERP34 user or provide false identity information to gain access to or use the Service.
4. Account Information and Data
4.1 Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. ERP34 shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Customer’s breach), ERP34 will, upon Customer request and remittance of any outstanding fee's, provide to Customer a file of the Customer Data within 30 days of termination. ERP34 reserves the right to withhold, remove Customer Data without notice for any breach, including, without limitation, Customer’s non-payment. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases, and ERP34 shall have no obligation to maintain or forward any Customer Data.
5. Intellectual Property Ownership
5.1 ERP34 alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the ERP34 Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the ERP34 Technology or the Intellectual Property Rights owned by ERP34. The ERP34 name, the ERP34 logo, and the product names associated with the Service are trademarks of ERP34 or third parties, and no right or license is granted to use them.
6. Charges and Payment of Fees
6.1 Customer shall pay all fees or charges to Customer’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total User licenses requested times the User license fee currently in effect. Payments must be made monthly in advance unless otherwise mutually agreed upon in an Order Form. All payment obligations are non-cancellable and all amounts paid are non-refundable. Customer is responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. Customer must provide ERP34 with valid credit card or approved purchase order information as a condition to signing up for the Service.
6.2 An authorized License Administrator may add licenses through an additional Order Form. Added licenses will be coterminous with the pre-existing License Term (either Initial Term or renewal term), and the license fee for the added licenses will be the then current, generally applicable license fee. ERP34 reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to Customer, which notice may be provided by e-mail. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.
7. Excess Data Storage Fees
7.1 ERP34 does not limit the maximum disk storage space provided to Customer at no additional charge ERP34 reserves the right upon 30 days advance notice to establish or modify its general practices, policies and limits relating to storage of Customer Data, which if exceeded could result in additional charges or termination of this Agreement.
8. Billing and Renewal
8.1 ERP34 charges and collects in advance for use of the Service. Unless the notice of termination has been issued according to Paragraph 16.1, on the first day of each renewal term ERP34 will automatically invoice Customer, and/or charge Customer’s credit card, or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total User licenses times the license fee in effect during the prior term, unless ERP34 has provided at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. ERP34's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on ERP34's income.
8.2 Customer agrees to provide ERP34 with complete and accurate billing and contact information, including legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. Customer shall update this information within 30 days of any change to it.
8.3 Any errors or inaccuracies in the invoice must be notified to ERP34 in writing within 60 days of the invoice date with a copy of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
9. Non-Payment and Suspension
9.1 In addition to any other rights granted to ERP34 herein, ERP34 reserves the right to suspend or terminate this Agreement and Customer’s access to the Service if any invoice remains unpaid for a period exceeding 30 days from the date of the invoice. Unpaid invoices are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Customer will continue to be charged for User licenses during any period of suspension. If either party initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer’s account. Customer agrees that ERP34 may charge such unpaid fees to Customer’s credit card or otherwise bill for such unpaid fees.
9.2 ERP34 reserves the right to impose a reconnection fee in the event Customer‘s account is suspended and thereafter Customer requests access to the Service. Customer agrees and acknowledges that ERP34 has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Customer’s account is 30 days or more delinquent.
10. Renewal and Termination
10.1 This Agreement commences on the Effective Date and continues until terminated in accordance with the Agreement. The Initial Term will be one year or as otherwise mutually agreed upon in an Order Form, commencing on the Effective Date. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at ERP34's then current fees.
10.2 Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. Customer agrees and acknowledges that ERP34 has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
10.3 Any breach of Customer’s payment obligations or unauthorized use of the ERP34 Technology or Service will be deemed a material breach of this Agreement. If Customer breaches or otherwise fails to comply with this Agreement, ERP34 may cancel Customer’s password, account and use of the Service upon written notice to Customer of any material breach of this Agreement. If a material breach has not been cured within 30 days written notice of such breach, ERP34 may at its sole option terminate this Agreement and Customer agrees and acknowledges that ERP34 has no obligation to retain the Customer Data, and may delete such Customer Data without further notice.
10.4 Paragraphs 5.1, 15.1, and 19.1 shall survive the termination of this Agreement.
11. Representations & Warranties
11.1 Each party represents and warrants that it has the legal power and authority to enter into this Agreement. ERP34 represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online ERP34 help documentation under normal use and circumstances. Customer represents and warrants that it has not provided any false identification or other information to gain access to the Service and that the billing information provided is correct.
12. Mutual Indemnification
12.1 Customer shall indemnify and hold ERP34 and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Customer of Customer’s representations and warranties; or (iii) a claim arising from the breach by Customer or Customer’s Users of this Agreement, provided in any such case that ERP34 (a) provides prompt written notice of the claim; (b) gives Customer sole control of the defence and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally releases ERP34 of all liability and such settlement does not affect ERP34's business or Service); (c) provides to Customer all available information and assistance; and (d) has not compromised or settled such claim.
12.2 ERP34 shall indemnify and hold Customer and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. or Canadian patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by ERP34 of its representations or warranties; or (iii) a claim arising from breach of this Agreement by ERP34; provided that Customer (a) provides prompt written notice of the claim to ERP34; (b) gives ERP34 sole control of the defence and settlement of the claim (provided that ERP34 may not settle or defend any claim unless it unconditionally releases Customer of all liability); (c) provides to ERP34 all available information and assistance; and (d) has not compromised or settled such claim. ERP34 shall have no indemnification obligation, and Customer shall indemnify ERP34 pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Customer’s products, service, hardware or business process(s).
13. Disclaimer of Warranties
13.1 EXCEPT AS EXPRESSLY PROVIDED BY THIS AGREEMENT, ERP34 MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY WITH RESPECT TO THE SERVICE OR ANY CONTENT. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ERP34.
14. Internet Delays
14.1 ERP34'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ERP34 IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
15. Limitation of Liability
15.1 IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.1 ERP34 may give notice by means of a general notice on the Service, electronic mail to Customer’s e-mail address on record in ERP34's account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in ERP34's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Customer may give notice to ERP34 (such notice shall be deemed given when received by ERP34) at any time by email to info@ERP34.com addressed to the attention of: Chief Financial Officer.
17. Modification to Service
17.1 ERP34 reserves the right to change the Service or its policies relating to the Service at any time, effective upon posting of notice of such changes or updated version of the policy on the Service. Continued use of the Service after any such changes shall constitute Customer’s consent to such changes.
18. Assignment; Change in Control
18.1 This Agreement may not be assigned by Customer without the prior written approval of ERP34 but may be assigned without Customer’s consent by ERP34 to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
19.1 This Agreement shall be governed by the laws applicable in Quebec, Canada, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of the Province of Quebec. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and ERP34 as a result of this agreement or use of the Service. The failure of ERP34 to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by ERP34 in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
This SaaS Agreement may be updated from time to time without any prior notification with the most current version being available to be obtained from this web site address: www.ERP34.com/agreement.aspx
Questions regarding this Software as a Service Agreement may be directed to ERP34's Security Administrator by e-mailing such questions to: info@ERP34.com.