Terms & Conditions

Service Subscription Agreement

Appficiency, Inc. (“Licensor”) agrees to provide the service(s) identified on a Sales Order (the “Service”) to the legal entity identified on the Sales Order (“Licensee”), pursuant to the terms of this Service Subscription Agreement (the “Agreement”). This Agreement is a binding, contractual agreement, and together with the Sales Order, it constitutes the agreement between Licensor and Licensee. By receiving and/or using any Service or any Professional Services (as defined herein), you represent and warrant that (i) you have read these terms, and agree to be bound by such terms and (ii) you are authorized on behalf of yourself and Licensee to agree to such terms.

Terms of Service.

Licensor hereby grants Licensee a nonexclusive, non transferable, worldwide right and license to use the Service solely for Licensee’s internal business purposes, subject to the terms of this Agreement. Licensor will provide the following to Licensee with respect to the Service:

Operation

Licensor will host and operate the Service from Licensee’s NetSuite application. Licensee must provide Licensor an ID and password for an administrator-level role for Licensee’s NetSuite account. Licensee shall be responsible for the maintenance of user logon information for access to the Service.

Maintenance

Licensor may, from time to time, perform maintenance on the Service and related infrastructure. Licensor shall use all reasonable efforts to perform maintenance services during off-peak hours (10:00 p.m. to 5:00 a.m. Pacific). Licensee acknowledges that the performance of maintenance may cause the Service to be temporarily unavailable.

Customer Support

Licensor will provide Licensee with access to Licensor’s customer portal in NetSuite, where Licensee may log support tickets. Alternatively, Licensee may submit support requests by email at softwaresupport@appficiencyinc.com.  Licensor will use commercially reasonable efforts to respond to and resolve all customer support issues that are attributable to the Service.

Additional Services

Company may offer additional services, from time to time, including, but not limited to implementation, customization, integration, and other tasks outside of the scope of this Agreement.  Such services shall be quoted based on a separate agreement(s) and are not part of the scope of this Agreement.

Upgrades

If NetSuite releases a version of its application that is incompatible with the Service, then Licensor will use all commercially reasonable efforts to promptly develop and make available a modified and upgraded version of the Service for Licensee.

Licensee’s Obligations.

Prerequisite Applications; Internet Access. Licensee shall be solely responsible for procuring, at its expense, the necessary environment to use the Service via the Internet, including, without limitation, (i) a valid license to the NetSuite, and if applicable, other external applications, (ii) Internet access, and (iii) telecommunications services.

Proper Use

Licensee shall be responsible for its users’ use of the Service in accordance with the applicable user manuals and other documentation, which may be amended from time to time (and any such amendments provided to Licensee in advance and in writing shall be binding upon Licensee), and any other instructions or guidance provided by Licensor. Licensee shall not, and shall ensure that its users shall not, use, submit, or enter any data, information or other materials in the course of using the Service that (i) violate any applicable laws, rules or regulations, (ii) infringe upon or misappropriate any intellectual property or proprietary rights of others, or (iii) violates the privacy rights of others.

Restrictions

Licensee shall not (and shall not allow any third party to): (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, or interoperability interfaces of the Service by any means whatsoever; (ii) remove any product identification, copyright or other notices; (iii) provide, lease, lend, use for timesharing, service bureau or hosting purposes or otherwise use the Service to or for the benefit of third parties; (iv) reproduce the Service or any component thereof; (v) modify, adapt, alter, translate or incorporate into or with other software or create a derivative work of any part of the Service nor any service or product that is similar to or a substitute in whole or in part for the Service; (vi) disclose information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Service; or (vii) resell, sublicense, distribute, or transfer the Service or any component thereof to any third party (including, without limitation, sharing Licensee’s username(s) and password(s) for the Service with any third party).

Ownership

The Service and its software components, and anything developed by Licensor for Licensee under this Agreement (“Contract Property”), are licensed (not sold). Licensor and its suppliers retain all copyright, trade secret, trademark, patent and other proprietary rights in the Service and the Contract Property, including but not limited to, all software, technology, information, content, materials, guidelines, and documentation. This license confers no title to, or ownership in, the Service or any of its components or any Contract Property, and Licensor reserves all rights not expressly granted to Licensee.

Fees; Payment

  1. Fees: Subject to the terms and conditions of this Agreement, Licensee will pay Licensor the setup fees, migration fees and/or monthly service access fees (collectively, the “Fees”) as set forth on an executed Appficiency Sales Order.
  2. Payment Terms: The Fees shall be due at the beginning of each period for which the Licensee desires to continue use of the Service. Payment terms are Net 30 or prior to installation of product, whichever comes first. Licensor shall have the right to suspend Licensee’s access to the Service if Licensee is delinquent on its payment obligations.
  3. Taxes: Licensee shall be responsible for all taxes and regulatory fees of any kind imposed by any federal, national, state, provincial, local, municipal or foreign government on any services provided under this Agreement, other than taxes based solely upon Licensor’s income.
  4. Payments Upon Termination: Upon expiration or termination of this Agreement for any reason, Licensee shall pay all earned and unpaid Fees and other amounts due Licensor hereunder, which shall be due and payable within twenty (20) days following the date of expiration or termination of this Agreement.

Term and Termination.

  1. Initial Term; Renewal: The initial term of this Agreement shall commence for one year (12 months) on the date that Licensee installs and completes one (1) test of Service. Thereafter, this Agreement shall be automatically renewed from year to year provided that Licensor provides Licensee with notice, at least thirty (30) days prior to the end of the then current term, of the upcoming renewal. Either party may submit written notice of its intention not to renew to the other party at least 30 days prior to the end of the-then current term, unless earlier terminated as provided in below “Termination For Cause”; or Licensee terminates this Agreement by discontinuing payment.
  2. Termination For Cause: Either party may terminate this Agreement if the other party is in material breach of this Agreement and has not cured such breach within thirty (30) days of written notice specifying the breach. Consent to extend the cure period shall not be unreasonably withheld, so long as the breaching party has commenced cure during the thirty (30) day period and is pursuing such cure diligently and in good faith.
  3. Obligations on Termination: Upon termination of this Agreement, Licensee shall, and shall ensure that its users shall, immediately, (i) cease all use of the Service, (ii) deliver to Licensor or destroy all copies of any related materials, and (iii) certify in writing to Licensor that such delivery or destruction has been accomplished. Upon termination of this Agreement by either party, Licensor reserves the right to immediately terminate access to the Service and Licensee acknowledges that it may be denied access to the Service.
  4. Survival: Termination of this Agreement shall not relieve either party of its respective obligations to the other hereunder, including all payment obligations, which arose prior to the effective date of termination. Notwithstanding anything herein to the contrary, Sections “Restrictions”, “Proper Use” and “Ownership” shall survive termination of this Agreement.

Confidentiality

  1. Definition: “Confidential Information” means information about Licensor’s business, products, services or activities that is proprietary and confidential, which shall include, without limitation, all business, financial, technical, marketing and other information marked or designated by Licensor as “confidential” or “proprietary;” together with all information which, by the nature of the circumstances surrounding the disclosure, ought in good faith be treated as confidential. Confidential Information shall include, without limitation, the Service and the software component(s) of the Service, as well as the specific terms, pricing, and fees set forth in this Agreement and the Sales Order.
  2. Obligations: Licensee agrees that it will hold in strict confidence and not disclose the Confidential Information to any third party and that it will use the Confidential Information for no purpose other than as reasonably contemplated by this Agreement. Licensee shall only permit access to the Confidential Information to those of its employees, contractors or agents having a need to know and who have signed confidentiality agreements containing terms at least as restrictive as those contained in this Section 7 (Confidentiality). Licensee shall maintain the confidentiality and prevent accidental or other loss or disclosure of any Confidential Information with at least the same degree of care as used to protect its own confidential information (but in no event with less than reasonable care). For the avoidance of doubt, either party may generally disclose the existence (but not the specific terms) of the Agreement and Licensee agrees that Licensor may refer to Licensee in its public and marketing communications as a customer, and use Licensee’s corporate name and/or logo in customer lists, including presentations and on Licensor’s website.
  3. Exceptions: Licensee’s obligation of confidentiality under this Agreement shall not apply to information which Licensee can document (i) is in the public domain without the breach of any agreement or fiduciary duty or the violation of any law; (ii) was known to Licensee prior to the time of disclosure (as evidenced by Licensee’s records) without the breach of any agreement or fiduciary duty or the violation of any law; or (iii) is independently developed by Licensee (as evidenced by Licensee’s records) prior to receiving such Confidential Information or without use or reference to any Confidential Information. In addition, it will not be a breach of this Section 7 for Licensee to disclose certain Confidential Information required to be so disclosed pursuant to a valid judicial order, a requirement of a governmental agency, or by operation of law; provided that Licensee gives Licensor written notice of any such requirement immediately after learning of any such requirement, and takes all reasonable measures to avoid or limit disclosure under such requirements and to obtain confidential treatment or a protective order and have allowed Licensor to participate in the proceeding. Upon written request by Licensor, Licensee shall promptly return all documents and other tangible materials containing or representing Confidential Information and all copies thereof and destroy all such Confidential Information in intangible form.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR DEATH OR PERSONAL INJURY, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE, OR ANY OTHER PERSON OR ENTITY, FOR ANY INDIRECT, INCIDENTAL, COVER, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS OR DATA WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR LICENSEE’S USE OR RELIANCE UPON THE SERVICE OR ANY PROFESSIONAL SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID AND PAYABLE TO LICENSOR UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO LICENSEE.


 

General Provisions

Waiver and Remedies

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, and the Seller and the Buyer hereby attorn to the jurisdiction of the courts of Toronto, Ontario, Canada. Notwithstanding the foregoing, Licensor may bring an action to protect or enforce its intellectual property rights in any applicable jurisdiction.

  1. Feedback: Licensee agrees that Licensor may, in its sole discretion, use any feedback, suggestions, and ideas about the Service or any of its components, in any manner, including in future modifications of the Service and components thereof.
  2. Severability: If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or by reason of it being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and to otherwise have the broadest application as shall be enforceable. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.
  3. Compliance with Laws: Licensee shall comply with all laws and regulations applicable to this Agreement or the transactions contemplated hereby.
  4. Assignment: Licensee may not assign this Agreement without the prior written consent of Licensor.

Entire Agreement; Modification

This Agreement, together with the Sales Order, constitutes the complete, final and exclusive statement of the terms of the Agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions of the parties. Licensor reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon delivery of notification to Licensee of such modifications at the physical and/or e-mail addresses provided on the Sales Order.

Execution

IN WITNESS WHEREOF, Company and Client have duly executed this Agreement as of the day and year first below written.