READ THIS SOFTWARE AS A SERVICE TERMS AND CONDITIONS CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THESE TERMS AND CONDITIONS YOU AGREE TO BE BOUND BY THEM AND THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY OR OTHER ENTITY TO THIS AGREEMENT.
SOFTWARE AS A SERVICE TERMS AND CONDITIONS
In this Agreement, the following words and terms shall have the following meanings:
“Affiliated Company” or “Affiliated Companies” means two or more corporations where the relationship between them is one in which one of them is a subsidiary of the other, or both are subsidiaries of the same corporation, or fifty percent (50%) or more of the voting shares of each of them is owned by the same person, corporation or other legal entity;
“Agreement” means these Terms and Conditions together with the terms of the Ordering Form;
“Commencement Date” means the date that the Ordering Form is accepted by Sultan;
“Customer” means the party who has ordered the Software Services from Sultan and to whom Sultan issues an account for using the Software Services;
“Customer Data” means the data entered, uploaded or inputted into the Software Services by or on behalf of the Customer. Customer Data will be deemed to include any trademark of the Customer that is included on the end-user interface web-page at the Customer’s request;
“Defect” means a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the Software Services but excluding any defect, error or bug caused by or arising as a result of an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents, suppliers or sub-contractors;
“Documentation” means the electronic documentation and materials provided by Sultan in conjunction with the Software Services, including all functional specifications, operating instructions, user manual, audio/visual training materials and other reference materials;
“Fees” means the monthly subscription fee and/or the use/transaction fees, as applicable, payable by the Customer to Sultan for the Customer’s right to use and/or usage of the Software Services;
“Monthly Payment Date” means the first day of each month, during the Term, unless a different day of each month is expressly specified in the Ordering Form as the Monthly Payment Date;
“Ordering Form” means the ordering form submitted by the Customer to Sultan to request an account to be set up for using the Software Services and the acceptance confirmation sent by Sultan to the Customer;
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“Purpose” means the sports equipment rental business and/or activities conducted by the Customer;
“Software Services” means the computer software platform, including any modifications, enhancements or upgrades to the software platform and the Documentation that Sultan makes available to the Customer. The Software Services include system management and monitoring activities that Sultan performs and the system support provided by Sultan, as applicable.
“Sultan” means Sultan Software Inc., a British Columbia corporation with an address at <@>, Vancouver, British Columbia;
“Sultan Trademarks” means any mark, trademark, service mark, logo, insignia, seal, design, symbol, or device used by Sultan or any of its Affiliated Companies or related entities, in any manner whatsoever;
“Term” means the period of time beginning on the Commencement Date and continuing until terminated in accordance with this Agreement;
Grant of Right and Set-Up
Grant of Right: Subject to the terms and conditions of this Agreement, Sultan hereby grants to the Customer, the limited, non-transferable, non-exclusive, revocable right to use the Software Services solely for the Purpose, during the Term.
Upon Sultan’s acceptance of the Ordering Form and the completion of the Customer’s set-up on the Software Services, Sultan will issue to the Customer an account that will allow the Customer to use the Software Services. Unless otherwise agreed upon by Sultan as evidenced on the Ordering Form, a separate account is required for each location of the Customer out of which sports equipment is rented.
If specified in the Ordering Form, the Customer may use the Software Services for trial, nonproduction purposes subject to all the terms and conditions of this Agreement, including confidentiality obligations, but excluding the obligation to pay the Fee. Despite any provision of this Agreement to the contrary, the Software Services for trial purposes are provided “as is” and Sultan does not provide any warranty whatsoever for the Software Services during the trial period.
In consideration of the payment of the “set-up fee” set out in the Ordering Form by the Customer to Sultan, Sultan will provide up to five (5) hours of support for the Customer’s initial set-up on the Software Services, including migration of Customer Data. If the Customer’s set-up on the Software Services takes more than five (5) hours, the additional “set-up” fee payable by the Customer will be as specified in the Ordering Form.
The Customer acknowledges and agrees that Sultan may include one or more of the Sultan Trademarks on the end-user interface webpage. At the Customer’s request, Sultan will include a Customer trademark on the end-user interface webpage. Each party will retain all title to and ownership of its trademarks. Any and all goodwill accruing from the use of each party’s trademarks on the end-user interface webpage will automatically vest in that party.
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The Customers may authorize its employees and agents to use the Software Services for the Purpose (such employees and agents the “Users”) by issuing to them User accounts. The Customer will be responsible for the Users’ compliance with the Agreement. Each User account cannot be shared or used by more than one individual (unless such User account is reassigned in its entirety to another authorized User, in which case the prior authorized user shall no longer have any right to access or use the Use account.)
The Customer acknowledges and agrees that Sultan may from time to time establish limits concerning the use of the Software Services, including the maximum size of any Customer Data that may be stored using the Software Services, the maximum number of emails that may be sent from or received using the Software Services and the maximum number of Users (such limits together, the “Storage and Usage Limits”) that are covered by the Subscription Fee. Any such Storage and Usage Limits and the fees payable by the Customer for exceeding them shall be posted on Sultan’s website or otherwise notified to the Customer in writing no less than 45 days before they come into effect.
The Customer will (i) be responsible for its Users compliance with all of the terms and conditions of this Agreement; (ii) be responsible for the accuracy, quality, integrity and legality of Customer Data and the means by which Customer Data is acquired and used, including compliance with all personal information privacy laws and regulations and ensuring that no third party intellectual property rights are infringed; (iii) use all commercially reasonable efforts to prevent unauthorized access to or use of the Software Services, and notify Sultan promptly of any such unauthorized access or use; and (d) use the Software Services only for the Purpose and in accordance with the Documentation and all applicable laws.
The Customer agrees to obtain any consent and provide any notice required in relation to the Customer’ use of the Software Services, including those related to the collection, use, processing, transfer and disclosure of personal information from end-users.
The Customer will not itself, and will cause its Users not to (i) copy, modify, make derivatives of, reverse engineer, disassemble, decompile or otherwise attempt to discover any portion of the source code, object code or trade secret of the Software Services; (ii) modify, adapt, translate, rent, lease, loan, distribute, network or create derivative works based upon the Software Services or any part thereof; (iii) copy the Documentation, except as reasonably required for purposes of providing the Documentation to its Users; or (iv) otherwise use the Software Services except as expressly permitted in this Agreement.
The Customer will not and will cause its Users not to post, upload, reproduce, distribute or otherwise transmit to the Software Services (i) pyramid schemes, (ii) any material that contains a virus, cancelbot, Trojan horse, worm or other harmful, disruptive or surreptitious component, (iii) defamatory, infringing, indecent or unlawful software, materials or information, or (iv) inappropriate, profane, or obscene software, materials or information.
In addition to any other rights afforded to Sultan under this Agreement, Sultan reserves the right to remove or disable access to any material that violates the foregoing restrictions. Sultan shall have no liability to the Customer in the event that Sultan takes such action. The Customer agrees to defend and indemnify Sultan against any claim arising out of a violation of your obligations under this section.
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Sultan or its licensors retain all ownership and intellectual property rights to the Software Services and its components. Sultan retains all ownership and intellectual property rights to anything developed and delivered under this Agreement, if applicable. The Customer acknowledges and agrees that no ownership rights in the Software Service or any of its components is transferred to the Customer at any time. The Customer agrees that it does not acquire any right or license to the Software Services, any components thereof or any intellectual property rights therein, except those rights expressly provided under this Agreement.
The Customer retains all ownership and intellectual property rights in and to Customer Data. Sultan will not use Customer Data for any purpose other than to provide the functionality of the Software Services to the Customer and its clients, or only in aggregate form for site metrics or to conduct demographic information analysis.
By virtue of this Agreement and the relationship of the parties, each party may have access to the other party’s information that is confidential or proprietary (“Confidential Information”). Sultan’s Confidential Information includes all proprietary aspect of the Software Services, including its data structures and design. Each party will use the other party’s Confidential Information only to the extent required to perform its obligations or exercise its rights under this Agreement, and for no other purpose.
A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure.
Each party agrees to hold the other party’s Confidential Information in strict confidence. Each party may disclose the other party’s Confidential Information only to those of its employees and agents who need to know such Confidential Information in connection with the party’s performance of its obligations or exercise of its rights under this Agreement. Each party will protect the other party’s Confidential Information against unauthorized disclosure in a manner no less protective than the party uses for its own confidential information, and no less than what is reasonable in the circumstances.
Fee & Payments
As consideration for the rights granted by Sultan to the Customer hereunder, the Customer agrees to pay to Sultan the monthly subscription fee and the use/transaction fees, as applicable, in the amounts set out in the Ordering Form, or as may be otherwise agreed upon by the parties from time to time (together, the “Fees”). Sultan reserves the right to adjust the Subscription Fee from time to time provided Sultan informs the Customer of any such adjustment at least 120 days prior. The subscription fee for the each monthly period, if applicable, is due and payable in advance on the Monthly Payment Date at the beginning of such monthly period. The
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use/transaction fees incurred by the Customer during a monthly period will be due and payable on the Monthly Payment Date the end of that monthly period.
The Fees are exclusive of all sales, value-added, use or other similar taxes. The Customer will be fully responsible for the payment of all such taxes, levies, charges and duties imposed by applicable law in connection with the provision of the Software Services and the payment of the Fees, and will pay them to Sultan together with the Fees.
All payments made by the Customer to Sultan under this Agreement shall without any deduction, adjustment or set off of any nature or kind whatsoever. The Customer hereby grants to Sultan the right and authority to charge the Customer’s credit card or debit the Customer’s designated bank account, as the case may be, the information for which is provided to Sultan in the Ordering Form, on a monthly basis for the Fees and applicable taxes. Any failure by Sultan to charge the Customer’s credit card or debit the Customer’s designated bank account as authorized here will not be construed in any manner as a waiver of the Customer’s obligation to pay any amounts due under this Agreement. Neither all nor any part of the Fees shall be refundable to the Customer under any circumstances.
All amounts due and owing to Sultan hereunder this Agreement but not paid by the Customer within 15 days of their due date as result of an invalid or over the limit credit card, or an invalid account or no sufficient funds in account, as the case may be, shall bear interest at a rate of 18% per annum, calculated monthly (1.5% per month). Such interest shall accrue on the balance of unpaid amounts from time to time outstanding from the date on which portions of such amounts become due and owing until payment thereof in full.
Sultan’s Services & Warranties & Exclusions
Sultan represents and warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under this Agreement;
(b) that it will perform its obligations under this Agreement with reasonable care and skill;
(c) that the Software Services will operate without Defects and will perform substantially in accordance with the Documentation (subject to any Upgrades); and
(d) the Software Services (excluding, for the avoidance of doubt, the Customer Data) will not infringe any person’s intellectual property rights in Canada.
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Although Sultan uses reasonable care in providing the Software Service, because complex software is never entirely free from defects and software development and maintenance inherently requires ongoing error corrections, updating and enhancements, Sultan cannot warrant that the Software Services are completely error free or that the Customer will have uninterrupted use of the Software Services. The Customer acknowledges that Sultan does not represent that the Software Services will be compatible with any application, program or software not specifically identified in writing by Sultan as being compatible.
THE WARRANTIES STATED ABOVE ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS RELATING TO THE SOFTWARE SERVICES OR ANY COMPONENT THEREOF, INCLUDING ANY WARRANTIES OR CONDITIONS OR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
SULTAN DOES NOT GUARANTEE THAT THE SOFTWARE SERVICES WILL PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT SULTAN WILL CORRECT ALL SOFTWARE SERVICES ERRORS. THE CUSTOMER ACKNOWLEDGES THAT SULTAN DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SOFTWARE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SULTAN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability
SULTAN’S TOTAL LIABILITY, FOR ANY LOSS OR DAMAGE SUFFERED BY THE CUSTOMER, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PROVISION OF THE SOFTWARE SERVICES, WHETHER IN CONTRACT OR TORT OF OTHERWISE, SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER PURSUANT TO THIS AGREEMENT IN THE SIX MONTHS IMMEDIATELY BEFORE THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL SULTAN BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, OR LOSS OF REVENUE, PROFITS, DATA OR DATA USE IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE SOFTWARE SERVICES, EVEN IF SULTAN HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.
No action, whether in contract or tort (including negligence), or otherwise arising out of or in connection with this Agreement may be brought by the Customer more than six months after the cause of action has occurred. The parties acknowledge and agree that the exclusions and limitations of liability set out in this Agreement are fair and reasonable in the commercial circumstances, and such limitations have been, in part, an inducement to the parties to enter into this Agreement.
Indemnity by Customer
The Customer will indemnify, hold harmless and defend Sultan, its directors, officers, employees, and agents against any and all claims (including all legal fees and disbursements incurred in association therewith) arising out of: (i) any breach by the Customer of the covenants
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provided in this Agreement or any use of the Software Services not in accordance with this Agreement; or (ii) any consequence of the business of the Customer or the services performed by the Customer in conjunction with the Software Services.
Term & Termination
The provisions of this Agreement will come into effect on the Commencement Date and will continue until terminated in accordance with this Agreement. Customer may terminate this Agreement any time on no less than 10 days written notice to Sultan before the following Monthly Payment Date, and in such circumstances, this Agreement and the rights provided herein shall terminate effective on the first Monthly Payment Date that occurs on or after the 10th day following the delivery of the notice of termination by the Customer to Sultan.
Sultan may terminate this Agreement anytime on 120 days written notice to the Customer. Sultan may terminate this Agreement immediately upon written notice to the Customer if the Customer (i) is in default of any of its obligations under this Agreement and such default is not remedied within thirty (30) days of the date of receipt of written notice thereof, provided that cure period with respect to default in payment obligations is ten (10) days; or (ii) ceases to conduct business in the normal course, becomes insolvent or bankrupt, makes any assignment for the benefit of creditors, or is subject to any proceedings instituted by or against the Customer seeking relief, reorganisation or rearrangement under any laws relating to insolvency.
Without limiting the generality of the foregoing, Sultan may, at its option, suspend the Customer’s right to use the Software Services and the account immediately: (i) upon notice to the Customer if the Customer fails to make payment of any Fees or other monies that are due to Sultan under the terms of this Agreement and such failure is not remedied within three (3) days after Sultan provides notice to the Customer of such failure to pay, provided that Sultan shall only be obligated to provide notice of the Customer’s failure to make payment once in any 12 month period in order to be in position to provide notice of suspension; and (ii) without notice to the Customer if the Customer is in breach of the Section titled “Customer’s Responsibilities” or otherwise makes use of the Software Services other than as permitted by this Agreement. Sultan will not be liable to the Customer for losses caused to the Customer as a result of the interruption of the Customer’s business as a result of any suspension period or early termination as contemplated in this Agreement.
At Customer’s request, and for a period of up to 30 days after the termination of this Agreement, Sultan will permit the Customer to access the Software Services solely to the extent necessary for the Customer to retrieve the Customer Data. The Customer agrees and acknowledges that Sultan has no obligation to retain the Customer Data and that the Customer Data may be irretrievably deleted after 30 days following the termination of this Agreement.
Notice: All notices or other documents that any of the parties hereto are required or may desire to deliver to the other party hereto may be delivered only by personal delivery, certified mail, or email, all postage and other charges prepaid, at: (i) in the case of the Customer, the address indicated in the Ordering Forms or at such other address as the Customer designates in writing to Sultan in accordance with this Section; and (ii) in the case of Sultan, to <@>. Any notice
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personally delivered or sent by fax or email shall be deemed to have been given or received at the time of delivery or email transmission.
Governing Law and Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada in force therein without regard to its conflict of law rules. All parties agree that by executing this Agreement they have attorned to the exclusive jurisdiction of the courts of British Columbia. Assignment: Except as expressly permitted herein, the Customer will not assign, transfer, mortgage, charge or otherwise dispose of any or all of the rights, duties or obligations granted to it under this Agreement without the prior written consent of Sultan. Sultan shall have the right to assign its rights, duties and obligations under this Agreement to an Affiliated Company or a successor in interest to Sultan.
Severability: If any term or provision of this Agreement will be found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same will not affect the other terms or provisions hereof or the whole of this Agreement, but such terms or provisions will be deemed modified to the extent necessary in the court’s opinion to render such terms or provisions enforceable, and the rights and obligations of the parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.
Survival: The terms of this Agreement that, by their nature, are intended to survive any purported or actual termination or expiry of this Agreement will so survive, including without limitation the provisions relating to limitation of liability, confidentiality, indemnity and payment.
Entire Agreement: This Agreement ,including any documents expressly referred to and incorporated by reference into this Agreement, sets forth the entire understanding between the parties with respect to the matters contemplated herein and no modifications hereof shall be binding unless agreed to in writing by Sultan and the Customer. This Agreement shall enure to the benefit of and be binding on the parties, and their respective successors and permitted assigns.
Use of Customer Name: The Customer agrees (i) that Sultan may identify the Customer as a user of the Software Services in sales presentations and marketing materials and to develop a brief customer profile for use by Sultan on the website _________ for promotional purposes.
Force Majeure: Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party and other event outside the reasonable control of the obligated party. If such event continues for more than 30 days, either party may terminate the services upon written notice.