END-USER LICENSE AGREEMENT
1. Program: The “Program” means the software program specified in the accompanying order form (the “Order Documentation”) or any other software provided to you by Dye & Durham Corporation (“Dye & Durham”) not covered expressly by a different agreement and includes the software and all accompanying data files, web based Program functionality (“Online Functionality”) and documentation, any updates to the Programs that may be provided from time to time by Dye & Durham, and all copies of any of the foregoing.
2. Grant: Subject to payment of the applicable fees and the limitations and restrictions set forth in this agreement, Dye & Durham grants a non-exclusive licence 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 licensee in the Program (“Licensee”) for the term of this agreement. Licensee will not permit the Program to be accessed by more than the maximum number of users or workstations licensed.
3. 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.
4. 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 Licensee to Dye & Durham will be the property of Dye & Durham, and Licensee 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.
5. Pay-Per-Use Fees: Additional fees may apply in order to initiate certain transactions (including but not limited to purchase, sale, and mortgage transactions) using the Program (each a “Paid Use”). These additional fees are not included in the license fee paid for the license granted under this agreement and are the responsibility of Licensee. These additional fees are subject to change from time to time at the discretion of Dye & Durham.
6. Paid Use Restrictions: Licensee will only use each Paid Use transaction or record in relation to the single transaction or entity for which it was originally purchased. Licensee is required to create a new Paid Use transaction for each purchase, sale, mortgage transaction, or similar transaction processed using the Program. Licensees that do not abide by this condition are subject to having their license suspended or terminated immediately by Dye & Durham.
7. Third Party Terms: Licensee acknowledges that Licensee 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.
8. Term: This agreement is effective until terminated. Licensee may terminate this agreement at any time but this agreement will terminate immediately if Licensee fails to comply with any term or condition herein, or if Licensee gives notice to Dye & Durham that Licensee wishes to terminate the purchase order during any evaluation period specified in the Order Documentation. Sections 4, 13, 14, 15, 16, 18, 19, 20, 22, 23, 24, 26 and 27, and the obligation to pay transaction fees that were incurred prior to termination will survive termination of this agreement. Upon termination, Licensee will deliver to Dye & Durham all copies of the Program and any provided storage media, and Licensee will discontinue use of the Program and will cause it to be deinstalled from all computers on which it had been installed. Additionally, Dye & Durham will disable all Licensee user names and password.
9. Software Installation: The Subscriber will be responsible for installing the Software at its facilities, but if the Subscriber desires that Dye & Durham installs the Software, Dye & Durham may provide such installation services.
10. Support: If Licensee has purchased support or is otherwise entitled to support as set out in the Order Documentation, then during the support period:
(a) Dye & Durham will provide Licensee, 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 Licensee 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, legal advice 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 only do so: (i) for the purpose of providing Program support; and (ii) in accordance with privacy laws and 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 Licensee, 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 Licensee with the update).
11. Event Information: Licensee agrees that the Program may collect and send statistical information about the occurrence of certain events within the Program relating to Licensee’s use of the Program to Dye & Durham and that Dye & Durham may use this information for its internal business purposes, including for billing, to measure and understand the behaviour and preferences of our customers, to troubleshoot technical problems, to enforce this agreement, and to ensure proper functioning of the Program. Licensee warrants that Licensee will not interfere or attempt to interfere with the collection and transmission of such information.
12. Backups: Provided that a notice of copyright ownership of Dye & Durham is reproduced and included with any copy, Licensee may make archival copies of the Program for the sole purpose of backing up the Program to protect against damage to Program files, but Licensee may not otherwise reproduce, modify, transfer, store, transmit, sublicense, distribute, or sell the Program in any form or by any means and nor will Licensee decompile, disassemble or reverse engineer the Program or make any attempts in this regard.
13. Program is Confidential Information and a Trade Secret: Licensee acknowledges that the Program is proprietary to, is the confidential information of, and a valuable trade secret of, Dye & Durham and is entrusted to Licensee only for the purpose set forth in this agreement. Licensee will treat the Program in the strictest confidence and will not: (i) disclose or provide access to anyone other than Licensee’s employees with a need for access to exercise the license rights conferred under this agreement; or (ii) reverse engineer, decompile or disassemble the Program or any portion of it.
Licensee may not use the Program if the Licensee is a direct competitor of Dye & Durham, except with Dye & Durham’s prior written consent. In addition, the Licensee may not use the Program for purposes of monitoring its availability, performance or functionality or for any other benchmarking or competitive purposes.
14. Warranty and Disclaimer: Dye & Durham warrants that the Program will operate substantially in accordance with its documentation and Licensee’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 Licensee.
Licensee represents and warrants: (i) it has the right and authority to use and disclose any information that Licensee transmits using the Program, including that the information does not infringe any third party intellectual property rights and is not subject to any confidentiality obligations and that any information of or about individuals is only accessed, collected, used, or disclosed by Licensee in accordance with applicable privacy laws; (ii) it has obtained meaningful consent from the applicable individual or entity for the collection, sue and disclosure of any information consisting of personal information as defined in applicable Canadian and provincial privacy laws; (iii) the information is not and will not be defamatory, libelous, obscene or pornographic; and (iv) the information has been subjected to industry appropriate security measures to limit viruses and other harmful or deleterious programming routines.
Licensee recognizes and agrees that: (i) the Internet is not a secure medium, and neither the privacy of communications, nor Licensee’s use of Online Functionality can be guaranteed; (ii) the nature of Internet communications means that communications may be susceptible to data corruption, unauthorized access, interception and delays. Dye & Durham shall not be responsible or liable for any loss of privacy, disclosure of information, harm, damage or loss that may result from Licensee transmission of any information to Dye & Durham in any connection with Online Functionality.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND Dye & Durham 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. Dye & Durham does not REPRESENT OR warrant: that the Program will meet licensee’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. DYE & DURHAM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO the AVAILABILITY OF ANY onLINE fUNCTIONALITY EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, LICENSEE ASSUMEs THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM.
licensee is solely responsible for the content and accurany of any document prepared using the program and reviewing and verifying the information contained in any such document.
Dye & Durham disclaims responsibility for any changes in real estate laws and regulations that may affect the licensee.
15. Limitations. Licensee may not: (i) take any action that imposes, or may impose, in Dye & Durham’s sole discretion, an unreasonable or disproportionately large load on Dye & Durham’s infrastructure; bypass or circumvent measures employed to prevent or limit access to Online Functionality; (ii) modify, adapt or hack Online Functionality or otherwise attempt to gain unauthorized access to Online Functionality or related systems or networks; (iii) use Online Functionality in any unlawful manner, including but not limited to violation of any person’s privacy rights; (iv) use Online Functionality to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (v) use Online Functionality to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (vi) use Online Functionality in any manner that interferes with or disrupts the integrity or performance of Online Functionality and its components; or (vii) use Online Functionality to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.
16. User Content. Licensee is solely responsible for all information and materials of any kind it or its users post on, store in or make available through Online Functionality (“User Content”). Dye & Durham will not be responsible or liable in any manner for the User Content. Licensee shall not upload, transmit, use, store, or post on or in connection with Online Functionality, any User Content that (i) infringes upon or violates any third party’s rights of any sort; (ii) violates any applicable law, or (iii) that could otherwise create liability for or cause harm to Dye & Durham, its service providers or a third party. Dye & Durham will use reasonable efforts to backup User Content. Dye & Durham reserves the right to delete or block access to any User Content at any time in its sole discretion if it believes that such User Content may be in violation of these terms. Licensee shall make sure that the User Content does not exceed any specified storage limits and Dye & Durham reserves the right to charge Licensee for the storage used and Licensee will pay such sums when required by Dye & Durham. Licensee grants Dye & Durham a nonexclusive, non-transferable, royalty-free, worldwide license to reproduce, distribute, display, perform, and modify the User Content as necessary to provide Online Functionally to the Licensee. Except for the license granted to Dye & Durham herein, Licensee retains ownership of all right, title, and interest in and to all User Content.
Further to the previous paragraph, Dye & Durham strongly discourages the inclusion by the Licensee of any credit card details or other highly confidential information in the User Content by the Licensee and strongly advises their exclusion or redaction. Licensee agrees to indemnify Dye & Durham in respect of any third party claims relating to any User Content, except where those claims arise due to Dye & Durham’s negligence or intentionally wrongful conduct.
17. Additional Dye & Durham Rights. Dye & Durham will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of any User Content stored on Dye & Durham servers. Dye & Durham reserves the right (but has no obligation) to review any User Content and/or take such action against you as it deems necessary in its sole discretion, including without limitation removing or modifying User Content, terminating or suspending License’s account or access to the Program or Online Functionality, reporting Licensee to its governing body or law enforcement authorities if it violate this agreement or otherwise create liability for Dye & Durham or any third party. Dye & Durham also reserves the right to audit and electronically monitor the number of requests Licensee and its Users submit, and the frequency and duration of Licensee’s online activities.
18. Access and Compliance. Licensee agrees that Dye & Durham and the service providers it uses to assist in providing Online Functionality shall have the right to access Licensee’s account and to use, modify, reproduce, distribute, display and disclose the User Content solely to the extent necessary to provide Online Functionality, including, without limitation, in response to Licensee support requests. Any third party service providers Dye & Durham uses will only be given access to the Licensee account’s and User Content as is reasonably necessary to provide Online Functionality.
19. Suspension. Dye & Durham may, in its sole discretion, elect to temporarily suspend Licensee’s account and access to Online Functionality: (i) if Dye & Durham believes Licensee’s use of the Online Functionality poses a security risk to the Online Functionality or any third party or may adversely impact the Online Functionality or may subject Dye & Durham, its affiliates or any third party to liability; (ii) if Dye & Durham suspects or detects any malicious software connected to Licensee’s account or use of the Online Functionality by Licensee; (iii) during planned downtime for upgrades and maintenance to Online Functionality (of which Dye & Durham will use commercially reasonable efforts to notify Licensee in advance through the Dye & Durham forum page) (“Planned Downtime”); (iv) during any unavailability caused by circumstances beyond Dye & Durham’s reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Dye & Durham’s reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; (v) for non-payment of any amounts due under this agreement; or (vi) if Dye & Durham believes Licensee is using the Program contrary to this agreement. Dye & Durham will use commercially reasonable efforts to schedule Planned Downtime for weekends and other off-peak hours. If Dye & Durham feels Licensee’s use of the Online Functionality is exceeding reasonable storage, bandwidth, access or other such limits, Dye & Durham reserve the right to cap Licensee usage of Online Functionality to limits Dye & Durham deems reasonable. For clarity, a suspension or capping hereunder does not constitute termination of this agreement and Licensee shall continue to be bound by this agreement during the period of such suspension or capping.
20. Limitation of Liability: Dye & Durham’s liability to Licensee 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 be liable for 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.
21. Amendments: 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 Licensee (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 and Licensee hereby agrees that continued use of the Program after such notice will constitute acceptance and agreement to be bound by the revised agreement.
22. Governing Law: This agreement will be governed by and construed in accordance with the laws in effect in the Province of British Columbia, 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 British Columbia 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.
23. Laws. Licensee is responsible for compliance with local laws to the extent they are applicable and Licensee agrees to comply with all applicable laws with respect to its use any program. Licensee 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 the Canadian Radio-television and Telecommunications Commission and any similar or replacement body with authority to administer and enforce CASL. Dye & Durham will hold Licensee liable and will require Licensee 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 Licensee or by an entity for whom Licensee is responsible to comply with any applicable law, including without limitation, CASL.
26. 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 Licensee’s rights under, or grants Licensee rights that supersede, the license terms for such open source software.
27. 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 certain of the content available through a Program may be supplied by third parties resident and/or operating outside the Province of British Columbia and/or may be hosted on computers located outside of the Province of British Columbia.
28. Additional Terms and Conditions for Use During the Evaluation Period
The Evaluation Period is considered the first 30 days from the installation date of the software.
(a) During the Evaluation Period, a licensed version of the software will be made available to the Licensee.
(b) At any point up to and including the end date of the Evaluation Period, the licensee can cancel their agreement by sending a cancellation request, in writing, to [email protected].
(c) On receipt of a cancellation notice, Licensor agrees to reimburse any licensing fees and transaction fees incurred during the Evaluation Period.
(d) The software license shall be deemed to have been accepted by the Licensee on the first day after the Evaluation Period end date, at which point the Licensee shall be billed for any/all licensing and transaction credits fees incurred and not paid for during the Evaluation Period.