Software-as-a-Service Agreement

“We,” “us”, “our” or “Agilicus” refers to Agilicus Incorporated  “You” or “Your” refers to you as an Agilicus customer.

GENERAL

Agilicus controls this website and services from its offices within Ontario, Canada. You agree that (a) all matters relating to access to, use of, or purchases through this website will be governed by the laws of Ontario and the federal laws of Canada applicable to Ontario; (b) the courts of Ontario have jurisdiction; (c) the United Nations Convention on Contracts for the International Sale of Goods will not apply; and (d) you are responsible for complying with all local laws.  Unless otherwise specified, references to dates and time of day mean Eastern Time as observed in Toronto, Ontario, Canada.

Agilicus may modify these terms and conditions from time to time, for any reason, by posting revised terms and conditions on this website. Please review these terms and conditions from time to time so you will be apprised of any changes. If you continue to use this website after the revised terms and conditions have been posted, you will be deemed to have agreed to them.

HELPFUL DEFINITIONS 

“Business Day” means any day except Saturday, Sunday or any day on which commercial banks located in Ontario are authorized or required to be closed for business;

“Confidential Information” means any and all information disclosed, either directly or indirectly, by a disclosing party (“Disclosing Party”) to a receiving party (“Receiving Party”) in connection with this Agreement, whether provided before, on or after the Effective Date, including without limitation, any inventions or discoveries (whether or not patentable), trade secrets, ideas, concepts, prototypes, designs, financial information, technical data or know-how, marketing and product information, pricing, business plans, contracts  policies and procedures, customer lists (including customer information), technologies (including computer programs, computer code, modules, scripts, algorithms, routines, systems, databases, equipment, features, processes, methodologies, schematics, testing procedures, software design and architecture, design and function specifications, analysis and performance information, and user documentation), internal documentation and materials and any personal information pertaining to an individual or person, such as employees or customers, together with all notes, memoranda, analysis, records, or other documents prepared by Receiving Party or its representatives  containing or based upon, in whole or in part, information acquired from Disclosing Party in connection with this Agreement; verbal, written or machine-readable form, and regardless of whether it is specifically identified or marked as “confidential” or “proprietary”;

“Documentation” means the user and technical manuals in paper or electronic format for the Software that we generally make available to our customers, as updated, amended and replaced from time to time;

“Effective Date” means the earlier of the date on which (1) we receive your payment of the fees and (2) the date your users access the Software;

“Maintenance” means Updates and Upgrades to the Software;

“Maintenance Release” means periodic releases of revisions to the Software and may include any Update, release or other adaptation or modification of the Software that we may generally provide to You; but, not an Upgrade;

“SaaS Agreement”  or “Agreement” means these terms and conditions together with our proposal, quote, sales order or invoice; 

“Software” or “Software as a Service” or “SaaS” means our cloud-based platform to which we have provided you access;

“Support Services” means telephone and email answers to resolve inquiries concerning the functioning and use of the SaaS and malfunctions as set out in these terms and conditions;

“Training” means the education and training of your system administrators and other personnel to assist in preparing you to operate, manage and use the Software.

“Update” means changes to the Software to correct errors or defects, or to make the Software conform to our specifications; and,

“Upgrade” means improvements, enhancements, additions or changes to the Software which:

  1. provide new or enhanced capability;
  2. replace any portion of an Agilicus product; or,
  3. enable the SaaS to operate with third-party technology.

TERM

The initial term of this Agreement commences on the Effective Date and continues for a period of one (1) month, unless otherwise specified on the proposal, quote, sales order or invoice.  This Agreement may be automatically renewed thereafter for an unlimited number of one (1) month periods upon our receipt of your fees. 

TERMINATION

Either party may terminate this Agreement within thirty (30) days written notice if the other commits one or more of the following breaches of this Agreement:

  1. terminates our respective business;
  2. voluntarily or involuntarily files a bankruptcy petition or similar proceeding under the laws of our respective jurisdiction;
  3. becomes insolvent or makes an assignment for the benefit of creditors; 
  4. fails to comply with any other material provision of this Agreement; or, 
  5. you fail to pay us amounts due in accordance with this Agreement.

On termination of this Agreement, your use of the Software as well as any access to our Maintenance and Support Services will cease.  

PAYMENT

All fees will be set out in a proposal, quote, sales order or invoice as provided by us to you.  Renewal fees are based on our then-applicable subscription fees.  Support Services shall be performed on a “time and materials” basis and any statement of fees prior to the Support Services completion is an estimate only.

Fees for our excluded services below, as well as services not otherwise set out in these terms and conditions, shall be calculated at the then-applicable rate set forth in our proposal, quote, sales order or invoice indicating: 

  1. nature of services; 
  2. list of expenses; and,
  3. registration numbers for applicable taxes. 

Our invoices are payable:

  1. by you upon receipt in United States dollars, unless otherwise specified in the proposal, quote, sales order or invoice, and
  2. within thirty (30) days, unless otherwise specified in the SaaS Agreement or invoice. 

You agree that you shall not withhold from payments any federal, state or provincial income tax, unemployment insurance premiums, premiums or contributions to any federal, state or provincial retirement plan or any other amounts not required by law.

SERVICE MODEL

You may use our Software for your own internal use to:

  1. Authenticate and serve your applications to your employees, contractors, affiliates, and residents;
  2. use any other features for the purposes they were designed according to the Documentation that we may make available to you during the Term.

You may not:

  1. use, copy, modify, rent, sell, distribute or transfer any part of the Software except as provided in this Agreement, and shall not authorize or instruct any third party to engage in any of the specific uses of the Software as identified in in this Agreement;
  2. reverse engineer, decode, decompile, or disassemble the Software; 
  3. sublicence the Software to third-party organization;
  4. add, remove, obscure or modify any label or other indication of trademark, copyright or other intellectual property rights on the Software, our Documentation or other written material supplied by us; or, 
  5. duplicate or reproduce any Software, our Documentation or other written material supplied by us, 

without our explicit prior written consent.

You acquire only the right to use the Software in accordance with this Agreement and you do not acquire any intellectual property rights or moral rights to the Software, our Documentation or our Confidential Information.  You retain all intellectual property rights to your content and data.

TRAINING   

You may use all of our training methods and materials supplied or developed under this Agreement (and these materials shall be considered our Documentation owned solely by us) during, and for the sole purpose of, this Agreement.  Copying or reproducing any of our Documentation or training material for external distribution is strictly prohibited.

MAINTENANCE RELEASES

A Maintenance Release may contain, among other things, revisions, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software.  Each Maintenance Release constitutes a part of the Software and is subject to the terms and conditions of this Agreement.   

SUPPORT SERVICES

Support Services are provided during normal business hours (9:00am to 5:00pm Eastern Time) on Business Days.  We may engage certain third parties for the purposes of providing Support Services.  

SUPPORT ROLES AND RESPONSIBILITIES

We divide support requests into the following categories with the associated responsibilities:

  1. End-User Use addresses basic end-user authentication issues, basic application interface questions and end-user questions.  You are responsible for all End-User Use requests.
  2. Administrative Use addresses administrative user questions related to managing your applications not covered by our standard documentation.  We will respond within one (1) Business Day of each Tier Two request.   
  3. Functionality addresses:
  1. broken functionality in the SaaS; and,
  2. service availability or speed issues.

ADMINISTRATIVE USE AND FUNCTIONALITY PROTOCOL

We will notify you of the action that will be taken and, if applicable, of the availability of a fix.    We will make all reasonable commercial efforts to: 

  1. restore the SaaS to functionality within one (1) Business Day an issue is reported if it is related to a service outage; 
  2. respond to any support requests and initiate resolution within one (1) Business Day of receipt to our support email address support@agilicus.com; and,
  3. resolve each issue within five (5) Business Days from when the issue was reported.

EXCLUDED SERVICES

The following are excluded from our Support Services: 

  1. any of your communication charges; 
  2. issues due to improper use of the SaaS resulting from insufficient training;
  3. issues arising from applying the SaaS to uses for which the SaaS was not designed;
  4. issues related to your system and software environment;
  5. issues relating to your network;
  6. telephone support relating to business-consulting or training-related issues; and,
  7. government or regulatory changes affecting SaaS.

We may, on request and at then-prevailing rates, provide you with assistance with the excluded services on a Business Day subject to a minimum charge of:  

  1. One (1) hour for telephone or online consulting support; and 
  2. Eight (8) hours for on-site consultations (travel and living expenses will be charged at cost).

YOUR RESPONSIBILITY

Agilicus at its sole discretion, reserves the right to suspend, limit or terminate access to the Software at any time. You agree Agilicus may suspend, limit or terminate access to the Software at its sole discretion if you:

  1. Fail to comply to all local, provincial, state, national and international laws in relation to the use of the Software
  2. Engage in any unlawful or fraudulent activity
  3. Share account access across multiple users
  4. Allow anonymous access to the system
  5. Use the system for video streaming
  6. Use the system to circumvent regional restrictions on content distribution
  7. Unlawfully distribute copyrighted content or infringe on intellectual property right of any third party
  8. Distribute unlawful, defamatory, threatening, or any, content that can lead to civil or criminal liability
  9. Distribute or participate in any ‘spam’ or ‘junk mail’ or any form of unsolicited mass distribution through the Software
  10. Distribute any form of content that participates in Denial of Service Attack, viruses, harmful computer code, trojan horses, worms, bots, spyware or any other type of malicious traffic

CONFIDENTIAL INFORMATION

At all times during this Agreement and after its termination or expiration, each of us shall:

  1. protect the confidentiality of the other party’s Confidential Information with the same degree of care as it uses for its own similar information, but no less than a commercially reasonable degree of care;
  2. not divulge or disclose the other party’s Confidential Information to any third parties; and;
  3. not use any Confidential Information for any purposes other than the performance of the obligations under this Agreement.

Confidential Information may only be used by those employees or agents who have a need to know such information for the purposes related to this Agreement.

Our respective confidentiality obligations do not apply to any information that is:

  1. already known by the recipient prior to disclosure by the other party;
  2. independently developed prior to, or independent of, the disclosure;
  3. publicly available;
  4. rightfully received from a third party with no duty of confidentiality;
  5. disclosed with prior written approval; 
  6. disclosed under, or required by, law.
  7. aggregate data gathered, created or interpreted by the Software, which will not contain any personal identifiable information. 

EVENTS BEYOND OUR CONTROL

If either of us is affected by any act of God, act of war, or other cause beyond our control and without fault or negligence, we shall promptly notify each other of the nature and extent of the situation.  Neither of us shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to any delaying cause of which the other has been notified.  As well, the time for performance of that obligation shall be extended accordingly, provided that we all use commercially reasonable efforts to perform.  

WARRANTEES AND LIABILITY

We represent and warrant to you that we own, or have sufficient rights to, all intellectual property rights to the Software and any third-party products used in the Software.  The Software is provided “as is” and we do not warrant that use of the Software will be uninterrupted or error free.  

We also warrant that our Maintenance and Support Services will be performed in a professional manner in conformance with generally accepted industry standards.  We will rectify any Support Services which fail to conform with these standards provided you report to us in writing within thirty (30) days after the failure.  

WE MAKE NO WARRANTEES, REPRESENTATIONS OR CONDITIONS WITH RESPECT TO THE SOFTWARE, MAINTENANCE OR SUPPORT SERVICES EXCEPT AS SET OUT IN THESE TERMS AND CONDITIONS AND ALL OTHER WARRANTEES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTEES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED.  WE DO NOT WARRANT ANY SOFTWARE OR OTHER PRODUCTS MANUFACTURED BY THIRD PARTIES AND SUPPLIED IN CONNECTION WITH THE SOFTWARE, MAINTENANCE AND SUPPORT SERVICES. 

OUR LIABILITY FOR DAMAGES OR INDEMNIFICATION HEREUNDER SHALL BE LIMITED TO DIRECT DAMAGES AND SUCH AMOUNT SHALL BE NO GREATER THAN THE AMOUNT ACTUALLY BILLED TO YOU BY US FOR THE FIRST SIX (6) MONTHS OF THIS AGREEMENT.   IN NO EVENT SHALL WE BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR YOUR LOST PROFITS, DATA, OPPORTUNITIES OR REVENUES RELATING TO THIS AGREEMENT.   THESE LIMITATIONS AND EXCLUSIONS FROM LIABILITY SHALL APPLY REGARDLESS OF THE BASIS OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF BREACH OF CONTRACT, AND SHALL APPLY FOR THE BENEFIT OF OUR OFFICERS, EMPLOYEES, AGENTS AND SUBCONTRACTORS.

NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN, EXCEPT FOR PAYMENT OF AN OUTSTANDING ACCOUNT.

THINGS TO AVOID 

This SaaS Agreement, these terms and conditions or any right, licence, privilege or obligation provided herein may not be assigned, transferred or shared by you without our prior written consent, which consent shall not be unreasonably withheld.  Any attempted assignment without such consent is void. 

You may not issue press releases or otherwise publish any information with respect to the SaaS, Maintenance Releases or Support Services without our prior written consent. 

EXTRA CONSIDERATIONS

This Agreement will be governed in all respects by the laws of the Province of Ontario, Canada.  Under no circumstances will either of us be a partner, employee or agent of the other.  If any provision in this Agreement is held invalid or unenforceable it will be construed, limited or, if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability.