Formerly referred to as the End User License Agreement (EULA) (this “Agreement”)
Last Updated December 2021
This Subscription Agreement is entered into between Dye & Durham Corporation and the Subscriber (as designated in the Order) as of the Effective Date (defined below). This Agreement includes and is subject to the following terms and conditions. Dye & Durham and Subscriber may be collectively or individually referred to as the “Parties” or “Party” below.
1. Program: A “Program” means the object code version of software identified in any Order(s) provided by Dye & Durham Corporation (“Dye & Durham”) and includes the software and all accompanying data files and documentation, any Updates to the Program that may be provided from time to time by Dye & Durham, and all copies of any of the foregoing.
2.1 Subject to payment of the applicable Subscription Fees as stated in the applicable Order, and the limitations and restrictions set forth in this Agreement, Dye & Durham grants a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Program to the firm or individual by whom or on whose behalf this copy of the Program was licensed, being the named Subscriber in the Program (the Subscriber is identified, among other places, in the applicable Order and the About Dialog) (“Subscriber”) throughout the Subscription Period, as outlined in the applicable Order.
2.2 Subscriber will not use or permit the Program to be installed on more than one computer unless each copy so installed is a licensed copy of the Program. In the case of the network version of the Program, Subscriber will not permit the Program to be accessed by more than the maximum number of users or workstations licensed, as set out in the applicable Order.
3. Subscriber Authority: The Subscriber represents and warrants that the individual completing the applicable Order and accepting the terms of this Agreement and the applicable Order is an authorized representative of the Subscriber and has the authority to legally bind the Subscriber to the Agreement. The Subscriber hereby acknowledges that its use of the Program shall signify its acceptance of the terms of this Agreement and any other terms and conditions in relation to the Program in force from time to time.
4. Software Key: The Program is copy-protected. Upon installation, a validation or id number (“Key”), as obtained from Dye & Durham, must be entered to activate various essential functions within the Program. This Key is valid only for the computer or disk drive for which it was originally provided. If the Program is to be transferred to another computer or disk drive, Dye & Durham may require verification (either in writing or by way of de-installation code number generated by the Program) that the original copy has been deactivated.
5. Ownership: Dye & Durham licenses but does not sell the Program. Dye & Durham retains title and all ownership rights (including all intellectual property rights) in and to the Program. This agreement in no way transfers any rights of ownership or license to the Program or any of the features or information in it, except as specifically stated. All bug reports, ideas for enhancement and other feedback provided by Subscriber to Dye & Durham will be the property of Dye & Durham, and Subscriber hereby assigns these items (including all intellectual property rights therein) to Dye & Durham and Dye & Durham may use such information for any purpose it sees fit. All rights not expressly granted are reserved to Dye & Durham. Subscriber must not remove, modify, or obscure any copyright, trademark, patent, or other proprietary rights notices that are contained in or on the Program or any part of it.
6. Third Party Terms: Subscriber acknowledges that Subscriber may be required to agree to additional third -party terms and conditions not set out in this Agreement in order to take full advantage of certain features of the Program and certain services that may be facilitated by the Program.
7. Subscription Fees:
The Subscription Fees for the Program(s) licensed to Subscriber shall be as set forth in the applicable Order(s).
8.1. Subscriber will pay the Subscription Fees outlined in the applicable Order and all applicable taxes and other charges imposed by governmental authorities in respect of those fees.
8.2. All Subscription Fees are payable by the payment options made available and designated by Dye & Durham, either by credit card payments, or against an invoice, including automatic payment mechanisms as enabled in the Subscriber’s account. The Subscriber hereby expressly authorizes Dye & Durham or its agents to charge or withdraw all fees incurred under this Agreement to such applicable payment source and such authorization will survive termination of this Agreement until there are no charges owing by the Subscriber under this Agreement.
8.3. The Subscriber must comply with the terms of all agreements between Subscriber and any third-party payment processors, and if Subscriber has any disputes regarding the processing of any payment, then Subscriber must deal directly with those third parties to resolve the disputes.
8.4. If for any reason Dye & Durham is unable to obtain automatic payment using the designated payment source, Subscriber will immediately pay Dye & Durham the amount due and provide Dye & Durham with an alternative payment method for future payments.
8.5. Any late payments will be subject to interest at the rate of 18% per year, calculated from the date payment was due until the date the payment (including all accrued interest) is paid in full
8.6. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
9. Suspension and Acceleration:
9.1. If any amount owing by Subscriber under this Agreement is overdue for thirty (30) days, or if Subscriber’s or any User’s access to or use of the Program or Subscriber Data breaches this Agreement or violates the rights of any third party or is considered unlawful (as determined by Dye & Durham in its sole discretion) then Dye & Durham may, without limiting its other rights and remedies:
a. accelerate any unpaid fee obligations so that all such obligations become immediately due and payable; and
b. suspend access to and use of the Program.
9.2. Dye & Durham will attempt to notify Subscriber in advance of the suspension so that Subscriber can take corrective actions, but Dye & Durham reserves the right to act immediately if it reasonably believes it may be subjected to civil or criminal liability or regulatory action, or that its provision of the Program will be enjoined.
10. Term:The Subscription will commence from the Effective date of the applicable Order and will continue for the initial Subscription Period unless terminated earlier in accordance with (11) below. The Subscription Period will automatically renew for successive Subscription Periods unless either party gives the other party written notice of its intention not to renew at least 30 days prior to the end of the then-current Subscription Period. (All Subscription Periods are collectively the “Term”.)
11.1. Either party may terminate this Agreement immediately upon providing thirty (30) days written notice to the other party if:
a. the other party breaches any of its obligations under this Agreement and fails to remedy the breach within thirty (30) business days after receiving notice of the breach: or
b. any proceeding in bankruptcy, receivership, liquidation, or insolvency is commenced against the other party or its property.
11.2. Termination by Dye & Durham:
a. Dye & Durham may in its own discretion, terminate this Agreement at any time and without liability by giving the Subscriber at least ten (10) business days’ notice. Upon issuance of a notice of termination, Dye & Durham shall calculate the balance of the Subscriber’s Payment Account and determine in an Accounts Summary, a return of funds (if any) or balance owing by the Subscriber. Any such payments or refunds shall be made within ten (10) days from receipt of the Accounts Summary.
b. Dye & Durham may also terminate this Agreement immediately where:
i. The Subscriber is overdue on the payment of any amount due under this Agreement;
ii. Dye & Durham ceases to have the necessary third-party licenses to provide the Program; or
iii. A supplier threatens to terminate, suspends, or terminates such a necessary license due to Subscriber conduct or otherwise.
11.3 Termination by Subscriber:
The Subscriber may terminate the subscription at its convenience any time after the first thirty (30) days of the Subscription Period provided that, Dye & Durham, unless otherwise agreed, will not provide any refunds of prepaid Subscription Fees or unused Subscription Fees and the Subscriber will promptly pay all unpaid fees due through the end of the Subscription Period.
11.4 Effect of Termination:
Upon termination, Dye & Durham reserves the right to either suspend, disable, and delete the Subscriber’s access to the Program. The Subscriber will immediately discontinue, cease to use, or create any records and revalidate any existing records, and deliver to Dye & Durham all copies of the Program and any provided storage media and will cause it to be de-installed from all computers on which it had been installed. The Subscriber shall upon request by Dye & Durham, provide written confirmation of the deletion of all Dye & Durham proprietary material obtained under this Agreement. Sections 5-10, 16-28 and the obligation to pay any outstanding subscription fees that were incurred prior to termination will survive termination of this Agreement.
12. Support: If Subscriber has purchased support or is otherwise entitled to support as set out in the Subscription Documentation, then during the support period:
a. Dye & Durham will provide Subscriber, during Dye & Durham’ normal business hours, with a reasonable level of telephone hotline support and of online remote assistance support at no additional cost (excluding any third party connection charges), provided that Subscriber has installed up to and including the most recently made available Program updates, such support is limited to troubleshooting and Program operation assistance and does not include customization, consulting, data conversion or correction, or other services, or assistance with problems not attributable to the Program. If in the course of providing such support Dye & Durham is required to access, collect, use, disclose, dispose of or otherwise handle information of or about individuals that is subject to privacy laws, Dye & Durham will do so: (i) for the purpose of providing Program support; and (ii) in accordance with privacy laws and the other terms of this Agreement; and
b. if Dye & Durham, at its sole discretion, releases commercially available updates to the Program (excluding new full version releases of the Program), the updates will be made available to Subscriber, in a manner determined by Dye & Durham, at no additional cost (excluding any third-party connection charges) and on the same terms herein (unless such other terms are provided to Subscriber with the update).
13. Event Information: Subscriber agrees that the Program may collect and send statistical information about the occurrence of certain events within the Program relating to Subscriber’s use of the Program to Dye & Durham (“Event Information”) and that Dye & Durham may use this information for its internal business purposes, including for billing, to measure and understand the behavior and preferences of our Subscribers, to troubleshoot technical problems, to enforce this Agreement, and to ensure proper functioning of the Program. Subscriber warrants that Subscriber will not interfere or attempt to interfere with the collection and transmission of such information.
14. Backups: Provided that a notice of copyright ownership of Dye & Durham is reproduced and included with any copy, Subscriber may make archival copies of the Program for the sole purpose of backing up the Program to protect against damage to Program files, but Subscriber may not otherwise reproduce, modify, transfer, store, transmit, sublicense, distribute, or sell the Program in any form or by any means and nor will Subscriber decompile, disassemble or reverse engineer the Program or make any attempts in this regard, except to the extent that such activity is expressly permitted by law.
15. Proprietary Rights
15.1. As between the parties, Dye & Durham owns all right, title and interest (including all intellectual property rights) in and to all aspects of the Program, including the software code and architecture, the graphical design and “look and feel” of the user interface, and code libraries (including classes and functions), and the Program is protected by copyright and other proprietary rights, all of which Dye & Durham owns or has the right to use.
15.2. Subject to the limited rights expressly granted to the Subscriber under this Agreement, Dye & Durham reserves all rights, title, and interest in and to the Program. The Subscriber does not acquire any ownership rights to the Program by installing, accessing, or using the Program.
15.3. Dye & Durham owns its name, logo, trademark, and trade names appearing on or in association with the Program. Unless otherwise indicated, all other names, logos, trademarks appearing on the Program are owned by third parties and are used under licence.
16. Infringement Claims
16.1. Subject to the remainder of this section 17 and to the limitations in section 17.4, Dye & Durham will defend the Subscriber against, and pay the amount of any adverse final judgement (or settlement to which Dye & Durham consents) resulting from, any third-party claim during the Term that the Subscriber’s installation or use of or access to the Program in accordance with this Agreement infringes any intellectual property right enforceable in Canada (each a “Claim”), provided that:
a. the Subscriber promptly notifies Dye & Durham in writing if any Claim is threatened or commenced;
b. Dye & Durham has sole control of the defense of the Claim and all negotiations for its settlement, and its settlement; and
c. Subscriber provides reasonable assistance (at Dye & Durham’s expense) in the defense and settlement of the Claim.
16.2 Dye & Durham has no obligations regarding any Claims based on or arising out of:
a. any use of the Program not in accordance with this Agreement or the Documentation;
b. use or combination of the Program with other products, equipment, software, or data not supplied by Dye & Durham which but for such combination would not have given rise to the Claim;
c. any modification of the Program by any person or entity other than Dye & Durham or its agents or subcontractors authorized to make such modifications;
d. any activities of Subscriber after Dye & Durham has notified Subscriber that such activities may result in a Claim; or
e. Subscriber’s negligence or intentional misconduct.
16.3. If any Claim arises, Dye & Durham may in its sole discretion and at its sole expense:
a. procure the right to access and use the Program;
b. modify the Program so that it is not infringing,
c. provided that the modifications do not materially impair the Program’s ability to conform to and perform in accordance with the Documentation;
d. replace the infringing portion of Program with a non-infringing alternative with substantially similar functionality; or
e. if after reasonable commercial efforts Dye & Durham is unable to perform any of the foregoing alternatives, Dye & Durham may terminate this Agreement and refund to Subscriber prepaid but unused fees calculated on a pro rata basis from the termination date to the original scheduled end of the current Subscription Term.
16.4. Subscriber acknowledges and agrees that any defense and payment under section 16.1 and any refund under section 16.3 will be Subscriber’s sole and exclusive remedy against Dye & Durham with respect to any Claim.
17. Program is Confidential Information and a Trade Secret: Subscriber acknowledges that the Program is proprietary to, is the confidential information of, and a valuable trade secret of, Dye & Durham and is entrusted to Subscriber only for the purpose set forth in this Agreement. Subscriber will treat the Program in the strictest confidence and will not:
a. disclose or provide access to anyone other than Subscriber’s employees with a need for access to exercise the license rights conferred under this Agreement; or
b. reverse engineer, decompile or disassemble the Program or any portion of it.
18. Warranty and Disclaimer: Dye & Durham warrants that the Program will operate substantially in accordance with its documentation and Subscriber’s sole remedy under this warranty is for Dye & Durham to either (at Dye & Durham’ sole discretion): (i) repair the Program to conform substantially in accordance with its documentation; or (ii) refund the Program’s license fee to Subscriber.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND DYE & DURHAM, ON BEHALF OF ITSELF AND ITS SUPPLIERS, DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM, INCLUDING ANY MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER DYE & DURHAM NOR ANY OF ITS SUPPLIERS REPRESENT OR WARRANT: THAT THE PROGRAM WILL MEET SUBSCRIBER’S REQUIREMENTS; THAT THE OPERATION OF THE PROGRAM WILL BE UNINTERRUPTED AND ERROR-FREE; OR THE CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY CONTENT OR OTHER INFORMATION PROVIDED THROUGH THE PROGRAM. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, SUBSCRIBER ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM.
19. Limitation of Liability: Dye & Durham’s liability to Subscriber with respect to this Agreement and any other obligations related thereto will in all circumstances be limited to direct damages and will not, in the aggregate, exceed $500. In no event will Dye & Durham or its suppliers be liable for direct (except for Dye & Durham as set out in the prior sentence) indirect, consequential, exemplary, incidental, special, punitive, or aggravated damages, damages from loss of profits or revenues, failure to realize any expected savings, business interruption, loss of opportunity, or corruption or loss of data, or failure to transmit or receive any data, even if Dye & Durham has been advised of the possibility of such damages in advance. The limitations on liability in this paragraph will apply irrespective of the nature of the cause of action, demand, or claim, including breach of contract (including fundamental breach), negligence, tort, or any other legal theory, and will survive a fundamental breach or breaches of this Agreement or of any remedy contained herein. For greater certainty, in no event will Dye & Durham be liable in respect of any third-party claim.
20. Amendments:Dye & Durham may modify the Subscription Service from time to time, including deleting features and functions, in an effort to improve the Subscriber’s experience.
Dye & Durham reserves the right, at its sole discretion, from time to time, to modify, add, or delete portions of this Agreement. Dye & Durham will notify Subscriber (either, at Dye & Durham’ choice, by: (a) using the contact information provided to Dye & Durham; or (b) electronic display during use of the Program) of any such revision. The Subscriber hereby agrees that continued use of the Program after such notice will constitute acceptance and agreement to be bound by the revised agreement.
21. Governing Law: This agreement will be governed by and construed in accordance with the laws in effect in the Province of Ontario, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. Each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of Ontario for the purpose of any suit, action or other proceeding arising out of this Agreement or the subject matter hereof brought by either party or their successors or assigns.
22. Laws. Subscriber is responsible for compliance with local laws to the extent they are applicable, and Subscriber agrees to comply with all applicable laws with respect to its use of any of the program. Subscriber is responsible for ensuring its use of any programs and any materials accessible by way of the programs complies with Canada’s Anti-Spam Law (“CASL”), as it may be amended from time to time, and with any other applicable rules and regulations of the Canadian Radio-television and Telecommunications Commission and any similar or replacement body with authority to administer and enforce CASL. Dye & Durham will hold the Subscriber liable and will require Subscriber to indemnify Dye & Durham, its affiliated entities, and any of their respective directors, officers, employees, consultants, agents and suppliers in accordance with the terms of this Agreement, for any damage which they may suffer, sustain, pay or incur as a result of the failure of Subscriber or by an entity for whom Subscriber is responsible to comply with any applicable law, including without limitation, CASL.
a. for the development, enhancement, marketing and/or provision of products and services;
b. for administrative, data back-up, or processing purposes;
c. for the purposes of statistical and market analysis; and
d. to meet contractual reporting and audit obligations to suppliers whose products form part of or are otherwise related to the Program.
In order to operate effectively, Dye & Durham’ collection, storage and use of information may involve transfers of personal information from Canada to another country. You acknowledge that it may be necessary for Dye & Durham to transfer personal information to service Dye & Durham in another country and you consent to such transfer.
25. Open-Source Software. If there is any open-source software in any program, that open-source software is licensed under the terms of the license that accompanies such open-source software. Nothing in this Agreement limits the Subscriber’s rights under, or grants Subscriber rights that supersede, the license terms for such open-source software.
26. Links. Some links on Programs may enable you to leave a Program and connect directly to other sites or applications. Such linked sites or applications are entirely independent of the Program and will have other terms and conditions applicable to the use of that site or application. Dye & Durham is not responsible for examining or evaluating, and it does not warrant the offerings of, any of these businesses or individuals or the content of these third-party sites. Dye & Durham does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. Dye & Durham Is providing these links to you only as a convenience and the inclusion of any link does not imply endorsement of the linked site by Dye & Durham. You should carefully review privacy statements and other conditions of use of these third-party sites. You acknowledge and agree that some of the content available through a Program may be supplied by third parties resident and/or operating outside the Province of Ontario and/or may be hosted on computers located outside of the Province of Ontario.
27. Confidentiality: Dye & Durham shall not disclose any content created on the Program to any person except to its affiliates, employees, internal contractors, and agents (the “Representatives”) having both a need to know to accomplish the Limited Purpose and an obligation of confidentiality. The foregoing obligation of confidentiality and restrictions on use hereunder shall not apply to Content:
a. known to Dye & Durham before receipt from the Subscriber, without a duty of confidentiality;
b. generally available to the public (or becomes so), unless due to a Dye & Durham breach;
c. received by Dye & Durham from a third party without a duty of confidentiality; or
d. is independently developed by or for Dye & Durham without any use of the Content.
It shall not be considered a breach of this Agreement if Dye & Durham discloses Content as required by law, provided that Dye & Durham:
a. where permitted by law, gives Subscriber written notice promptly upon receipt of a disclosure requirement and before the disclosure is made;
b. takes reasonable actions and provide reasonable assistance to the Subscriber to secure confidential treatment of the Content; and
c. discloses only such Content as is required by law.
28. Personal Information:
28.1. The Subscriber will be considered the owner and controller of any Personal Information contained in its account in the Program.
28.2. Subscriber will have sole responsibility for determining if its collection, storage, and use of Personal Information complies with applicable law, for making all required disclosures and obtaining all required consents relating to the activities described in this Agreement, and otherwise complying with all applicable laws relating to Personal Information.
28.3 The Subscriber’s content will be stored and backed-up at data centres located in Canada only.
28.4 Dye & Durham has implemented and will maintain and follow appropriate physical, technical and organizational measures intended to protect your Content against accidental, unauthorized, or unlawful access or disclosure, including without limitation, operational security, encryption, access control, identity management, threat management, logging, and network security. The Subscriber’s content will only be made available to those limited people at Dye & Durham or its affiliates that need access in relation to the Limited Purpose. We will promptly notify you of any security incidents involving your content.
29. Audit: Dye & Durham may at any time and from time-to-time audit and review any aspect of the Subscriber’s use of the Program to ensure compliance with this Agreement, and the Subscriber will cooperate with providing assistance reasonably required to facilitate that audit. If Dye & Durham discovers any discrepancies that are not corrected within such period that Dye & Durham deems appropriate and notifies the Subscriber of in writing, Dye & Durham may immediately on written notice to the Subscriber, terminate this Agreement and the License. If Dye & Durham discovers any material breach of this Agreement through an audit, the Subscriber shall be responsible for the costs of such audits, otherwise, Dye & Durham will bear the audit costs.
30.1 Independent Contractors. The parties are independent contractors and neither party is an agent, employee, partner, or joint venturer of the other party for any purpose.
30.2 Notices. All notices and other documents delivered under this Agreement must be in writing and must be sent to the parties at the addresses in the Subscription Order, or to such other addresses as a party may designate in writing and must sufficiently be given by registered mail or commercial courier, and such notice will be deemed to have been given when the written or electronic evidence of delivery is obtained.
30.3 Invalidity. If a court of competent jurisdiction finds any provision of this Agreement to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions of this Agreement will not be affected or impaired.
30.4 Assignment: Dye & Durham may assign this Agreement and any of its rights under this Agreement to a third party. Subscriber may not assign or license this Agreement or any of its rights or obligations under this Agreement to any third party without Dye & Durham’s prior written consent.
30.5 Entire Agreement: This Agreement and any Order(s) constitutes the entire agreement between the parties, and replaces any and all prior agreements and understandings, whether written or oral, in any way relating to the subject matter of this Agreement.
30.6 Parties Bound: This Agreement binds and benefits the parties and their respective lawful successors and permitted assigns.
30.7 Force Majeure: Dye & Durham will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under the Agreement that is caused by events outside its reasonable control. Dye & Durham’s performance will be deemed to be suspended for the period that any such event continues and Dye & Durham will have an extension of time for performance for the duration of that period. Dye & Durham will use reasonable efforts to end the event or to find a solution by which Dye & Durham’s obligations may be performed despite the event.
30.8 Failure to Enforce: Dye & Durham’s failure to enforce, on any one or more occasions, any of the terms or conditions of this Agreement, will not be construed as a waiver of the future performance of any such terms or conditions.
31. Definitions: the following terms shall have the assigned meanings. Other capitalized terms used in this Subscription Agreement are defined where used.
“Dye & Durham” means Dye & Durham Corporation.
“Documentation” means the user manuals regarding the Program provided or made available by Dye & Durham, whether in electronic or physical formats.
“Effective Date” means the Order Effective Date of the first Order between the Parties.
“Error” means a reproducible defect in the Program, when accessed and used from equipment meeting the System Requirements, that causes the Program not to perform substantially in accordance with the Documentation.
“Order” means any Dye & Durham-provided ordering document, such as Order Form, Subscription Order Form, that may be provided to Subscribers from time to time which references this Agreement.
“Services” means Dye & Durham’s software maintenance and technical support services described in section 12.
“Subscriber” means the person or entity identified as the Subscriber or Subscriber in the applicable Order that is purchasing a Subscription.
“Subscription” means limited licence to use the Program.
“Subscription Fees” means the amount the Subscriber pays for the Subscription Service as outlined in the applicable Order.
“Subscription Period” means the term of the Subscription (either monthly or annual) as specified in the applicable Order.
“Supported Environment” means the hardware, devices, operating system platform, software and licenses, telecommunication and internet equipment, connections and services that meet or exceed the minimum system requirements for the Program as set out by Dye & Durham from time to time.
“Updates” means any patches, fixes, upgrades, enhancements, modifications, or new versions of or to the Program provided by Dye & Durham from time to time.
“User Licence” means the authorization for a single User to establish and use a Program account.
“User” means an individual who is a partner, member, employee, or contractor of the Subscriber and who is authorized by the Subscriber to access and use the Program through a User Licence under the Subscription