PayBuddy Software Subscription Agreement and Terms of Service
This PayBuddy – Canadian Payroll for NetSuite License Agreement (“Agreement”) is entered into between Aarialife Technologies Inc.. with its principal place of business located at 10 Four Seasons Place, 10th Floor, Etobicoke, ON, M9B 6H7, Canada (“Company”), and Customer company as mentioned in the respective order form represented by the estimate signed by customer provided in connection with this Agreement(“Customer”). Capitalized terms not otherwise defined herein will have the meaning given to them in Section 15. This Agreement is effective as of the date the respective order form or estimate is signed, enrolled online or accepted by Company (“Effective Date”).
1. Product License. Subject to the terms and conditions of this Agreement and during the Term, Company will make the Product available to Customer solely for Customer’s internal business operations. The terms of this Agreement will also apply to updates and upgrades subsequently provided by Company to Customer for the Product. Company may make available updates to the functionality and user interface of the Product from time to time in its sole discretion.
2. Ordering. Unless provided free of charge, the Product may be ordered by Customer pursuant to an Order Form or other sales process identified by Company. Each Order Form will include at a minimum a listing of the Product. Except as otherwise provided on the Order Form, each order will be subject to the terms and conditions of this Agreement. For any order by Customer or its Affiliate for the benefit of Customer’s Affiliate(s), the term “Customer” will refer to Customer and such Affiliate(s).
3. Restrictions. Customer is responsible for all activities conducted by its Users, including through User logins if applicable. Unless authorized by Company in writing, Customer’s use of the Product will not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use (use of one login by more than one individual), or time-sharing of the Product. Customer will not and will not permit any third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Product or any part thereof or otherwise attempt to discover any source code or modify the Product in any manner or form unless expressly allowed in the documentation; (b) use unauthorized modified versions of the Product; (c) use the Product in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (d) publish, post, upload or otherwise transmit Customer Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another.
4. License Term, Fee, Payment & Taxes.
4.1. Term of Agreement. The term of this Agreement will be for one (1) year commencing on the Effective Date (“Initial Term”), unless otherwise agreed by Company and Customer or earlier terminated pursuant to Section 8.2, and the Term will be extended as set forth in subsequent purchase order (each successive renewal term, a “Renewal Term”) (collectively “Term”). If Customer has not delivered an Order Form to Company regarding the upcoming Renewal Term prior to the expiration of the then current term, the Term will be automatically extended for successive Renewal Terms of one (1) year each unless either party provides written notice of non-renewal to the other at least thirty (30) days before such expiration.
4.2. Fees and Payment. Customer will pay the fees as specified in the Order Form and in future Order Forms. In the event that Company provides certain professional services to Customer, the parties with negotiate a separate agreement. Additional Users and other items purchased during a term will co-terminate with and be prorated through the then current end date. Fees for the Product on all subsequent order forms and renewals will be set at then current Company pricing, unless otherwise agreed to by the parties.
No Refunds. Payments referred to herein shall not be refundable under any circumstances, including but not limited to the termination of this Agreement for whatever reason.
4.3. Taxes. The fees listed on the Order Form do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes“). Customer is responsible for paying all Taxes, excluding only taxes based on Company’s income. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4. Late Payments. Any late payments will be subject to a service charge equal to 2% of the amount due (calculated on a monthly basis).
5. Proprietary rights.
5.1. Ownership of Customer Data. As between Company and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer.
5.2. Company Intellectual Property Rights. Customer agrees that all rights, title and interest in and to all intellectual property rights in the Product are owned exclusively by Company or its licensors. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Product, express or implied, or ownership in the Product or any intellectual property rights thereto. In addition, Company will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Product any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Product. Company marks, logos and product and Product names are marks of Company, respectively (the “Company Marks“). Customer agrees not to display or use the Company Marks in any manner without Company’s express prior written permission. The trademarks, logos and Product marks of Third Party Application providers (“Marks“) are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
6. Terms of Product. Customer agrees to the following terms of Product.
6.1. Internet Access, NetSuite Inc. Account. High speed Internet connection and an active NetSuite Inc. account is required to use the Product. Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Product, including, but not limited to, “browser” software that supports protocols used by Company, including Secure Socket Layer (SSL) protocol or other protocols accepted by Company, and to follow logon procedures for Products that support such protocols. Company is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software. Company is not responsible for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by Company.
6.2. Email and Notices. Customer’s email address for communication and notice purposes relating to this Agreement will be set forth in the Order Form.
6.3. Users: Passwords, Access and Notification. Customer will be responsible for all content and data, including, but not limited to, Customer Data, entered electronically through the Product. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Product and will promptly notify Company of any unauthorized access or use of the Product and any loss or theft or unauthorized use of any User’s password or name and/or Product account numbers.
6.4. Customer’s Lawful Conduct. Customer will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Product, including without limitation those related to privacy, electronic communications and anti-spam legislation. If applicable, Customer is responsible for ensuring that its use of the Product to store or process credit card data complies with applicable Payment Card Industry Data Security Standards requirements and will store credit card data only in the designated fields for such data. Customer will comply with the export laws and regulations of Canada and other applicable jurisdictions in using the Product and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any government list of persons or entities prohibited from receiving exports, (ii) Customer will not permit Users to access or use the Product in violation of any export embargo, prohibition or restriction, and (iii) Customer will comply with all applicable laws regarding the transmission of technical data exported from the country in which its Users are located. Customer will not use the Product in any manner that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Product may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Product by any means other than through the interfaces that are provided by Company. Customer will not do any “mirroring” or “framing” of any part of the Product, or create Internet links to the Product which include log-in information, user names, passwords, and/or secure cookies. Customer will ensure that all access and use of the Product by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Users of Customer’s contractors, agents, and Affiliates.
6.5. Third Party Applications. Company may offer links to other websites, resources, third party applications or services, including implementation, customization and other consulting services related to customers’ use of the Product. Company does not warrant any such third party content, third party applications, or services except as set otherwise agreed between Company and Customer. Any purchase by Customer of any third party applications or services is solely between Customer and the applicable third party provider.
6.6. Support. If included on an Order Form, Company will provide Customer with technical support to assist Customer in its use of the Product.
6.7. Modifications; Discontinuation of Product. Company may make modifications to the Product or particular components of the Product from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. Company reserves the right to discontinue offering the Product at the conclusion of Customer’s then current Term with 60 days’ prior notice to the customer.
7. Warranties.
“Company” warrants that (i) the Service will achieve in all material respects the functionality described in the Help Documentation applicable to the Service procured by Customer, (ii) the Service and/or Product will not infringe any third party’s rights, and (iii) such functionality of the Service will not be materially decreased during the Term. Customer’s sole and exclusive remedy for “Company’s” breach of this warranty shall be that “Company” shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the Help Documentation and if “Company” is unable to restore such functionality, Customer shall be entitled to terminate the Agreement. The customer should give a notice 30 days prior to the date of termination.
7.1. “Company” shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to hello@aarialife.ca. The warranties set forth in this Section 7 are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Service has been utilized in accordance with the Help Documentation, this Agreement and applicable law.
7.2. No Virus Warranty. “Company” warrants that the Service will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”), except for any Malicious Code contained in Customer-uploaded attachments or otherwise originating from Customer.
8. Suspension/Termination.
8.1. Suspension for Ongoing Harm. Customer agrees that Company may suspend access to the Product if Company reasonably concludes that Customer’s Product is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of the Product is causing immediate, material and ongoing harm to Company or others. Company will use commercially reasonable efforts to limit the suspension to the offending portion of the Product and resolve the issues causing the suspension of Product. Customer agrees that Company will not be liable to Customer nor to any third party for any suspension of the Product under such circumstances as described in this Section 8.1.
8.2. Termination for Cause/Expiration. Either party may immediately terminate this Agreement and all Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party will expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and will be sent to the address specified in the Order Form (or such other address that may be provided pursuant to this Agreement). Upon termination or expiration of this Agreement, Customer will have no rights to continue use of the Product. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, Customer agrees that Company will be entitled to all of the fees due under this Agreement for the entire Term.
9. Confidentiality.
For purposes of this Agreement, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is clearly identified in writing or verbally at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall include Customer Data and the terms of this Agreement including the pricing and other terms reflected in all Order Forms, and Company technology and technical information, product designs, issues, and Company support cases will be considered Confidential Information of Company. Confidential Information will not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; or (5) is aggregate statistical data regarding customers’ use of Company’s products and services that does not contain any personally identifiable or Customer-specific information.
Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the Disclosing Party; (b) not to use or disclose the Confidential Information of the Disclosing Party except to the extent necessary to perform its obligations or exercise rights under this Agreement, except with the Disclosing Party’s prior written consent; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential
Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
10. Disclaimer of Warranties.
COMPANY DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE PRODUCT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE PRODUCT OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE PRODUCT AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THERE ARE NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR, FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PRODUCT OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
11. Limitations of Liability.
11.1. Exclusion of Consequential Damages. CUSTOMER AGREES THAT THE CONSIDERATION WHICH COMPANY IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY COMPANY OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER OR ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY.
11.2. Limitations on Direct Damages. Except with regard to amounts due under this Agreement, the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Product, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, will in no case exceed the amounts paid or payable by Customer hereunder in the twelve months preceding the incident giving rise to liability. Company will not be liable to the extent such liability would not have occurred but for unauthorized access or disclosure of credit card or social security numbers stored by Users in the Product other than in the designated fields for such numbers or User-transmission email in unencrypted form. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement.
12. Indemnification.
12.1. Customer’s Indemnity. Customer will, at its own expense and subject to the limitations set forth in this Section 12, defend Company from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) (i) alleging that the Customer Data or any trademarks or Product marks other than Company Marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 9 above and will hold Company harmless from and against liability for any Losses to the extent based upon such Claim.
12.2. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 12, the indemnified party will: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 12 are expressly conditioned upon the indemnified party’s compliance with this Section 12.4 except that failure to notify the indemnifying party of such Claim will not relieve that party of its obligations under this Section 12 but such Claim will be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 12 will survive termination of this Agreement for one year.
13. Governing Law, Arbitration and Dispute Resolution. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a court, tribunal, agency, or other public forum, it will provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties will meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute. This Agreement and any dispute arising out of or in connection with this Agreement (“Dispute”) will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws of Canada without giving effect to conflict of laws principles thereof. Any dispute or difference between the Parties arising out of or in connection with this document, including any dispute or difference relating to the interpretation of this document or any clause hereof shall be referred for Arbitration to ADR Chambers The said Arbitration shall be governed by the Commercial Arbitration Act (CAA), which came into force on August 10, 1986. . The venue of Arbitration shall be at Toronto and only the courts at Toronto shall be entitled to exercise jurisdiction in respect therewith.
14. General Provisions. This Agreement will inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this Agreement without written consent of the other, except to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates. There are no third-party beneficiaries to this Agreement. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although Company reserves the right to name Customer as a user of the Product. This Agreement, including all Order Forms, will constitute the entire understanding between Customer and Company and is intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, request-for-proposal’s, or agreements between the parties. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Customer in connection to this Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Company to object to such terms, provisions, or conditions. The Agreement will not be modified, or amended, except as expressly set forth herein, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Order Form. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party will be awarded reasonable attorneys’ fees and/or costs. Customer will compensate Company (including reimbursement of costs) for responding to any request from a third party for records relating to Customer or a User’s use of the Product. Such requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the User permitting the disclosure. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision will be eliminated or limited to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach. Neither party will be liable for any loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving Company employees), internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Product date will be extended to the extent of any delay resulting from any force majeure event. Sections 4.2, 4.3, 4.4, 5, 9, 10, 11, 12, 13, 14 and 15 will survive the termination or expiration of this Agreement. This Agreement may be executed in counterparts and/or by facsimile or electronic signature and if so executed will be equally binding as an original copy of this Agreement executed in ink by both parties.
15. Definitions.
“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of Customer.
“Customer Data” means all electronic data or information submitted to the Product by Customer or its Affiliates.
“Order Form” means a Company ordering document in the name of and executed by Customer
or its Affiliate and accepted by Company which specifies the Product to be provided by Company subject to the terms of this Agreement.
“Product” means, collectively, Company’s product(s) set forth on an Order Form.“Users” means individuals who are authorized by Customer to use the Product. Users may include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors, and agents.
