CAREFULLY READ THIS SOFTWARE AS A SERVICE AGREEMENT (the “Agreement”) BEFORE CONTINUING. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION CLAUSE. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT BY ACCESSING OR USING LOCKDOCS SOFTWARE SERVICES, YOU AGREE TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. 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 SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, YOU MUST NOT CLICK THE “I ACCEPT” BUTTON AND MAY NOT ACCESS OR USE THE SERVICES.
Please contact us at firstname.lastname@example.org for any queries.1. Definitions
1.1. Definitions. Capitalized terms in this Agreement will have the following meanings:
“Agreement” means this terms of service agreement including the Terms and Conditions contained herein;
“Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by LockDocs regarding to use or operation of the SaaS Services, or as part of the SaaS Services;
“SaaS Services” means LockDocs internet-accessible LockDocs software service being provided under this Agreement, that is hosted by LockDocs or its services provider and made available over a network on a term-use basis;
“Software” means the object code version of any software to which is provided access as part of the SaaS Services, including any updates or new versions.
“We”, “Our” and “Us” means LockDocs;
'"You” or “Your” means the person or legal entity who has ordered, and is being provided, software as a service by LockDocs under this Agreement;
Other capitalized terms have the meanings defined in this Agreement.
2. Rights Granted & Restrictions
2.1 Software as a Service. In consideration of the mutual covenants, and subject to the provisions contained in this Agreement, We hereby grant to You a revocable, non-exclusive, non-assignable, worldwide, right to access and use the SaaS Services solely for your business or personal operations and subject to the Terms and Conditions of this Agreement. You acknowledge and agree that this Agreement is a services agreement and We will not be delivering copies of the Software to You as part of the SaaS Services.
2.2 Restrictions. Without limiting the generality of the foregoing, You will use the SaaS Services only for purposes set forth herein, and, further, You expressly agree that You DO NOT have the right to:
(a) own title, or transfer title to the Software to another party;
(b) distribute, sublicense or otherwise provide copies of the Software or any rights in relation to the SaaS Services to any third party;
(c) pledge, hypothecate, alienate or otherwise encumber the Software or SaaS Services to any third party;
(d) modify, enhance, reverse-engineer, decompile, disassemble or create substantially derived forms of the SaaS Services or Software.
2.3 Enforcement of Restrictions. We will have the right to inspect and enforce the restrictions and covenants contained in this Agreement, and You hereby agree to promptly notify Us of any known violations of such restrictions.
2.4 Our Obligations. We will:
(a) permit You to access and use the most current version of the SaaS Services for Your use under this Agreement; and
(b) provide ongoing updates to the SaaS Services from time to time as We deem necessary.
3.1 Copyright. The Software, Documentation, media, packaging and illustrations, constitutes Our intellectual property. You agree that all physical and electronic manifestations of the Software and Documentation displays Our copyright notice in a conspicuous manner. The Software and Documentation is protected under Canadian copyright law and international treaty provisions.
3.2 Trademarks. Certain logos, product names and trademarks owned by Us may be contained within the printed materials and electronic manifestations of the SaaS Services and Documentation. You have no right to use or benefit from such marks except as set out in this Agreement.
3.3 Other. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to the SaaS Services, shall, as between You and Us, at all times be and remain the sole and exclusive property of Ours.
4.1 Title. You acknowledge that the Software, SaaS Services and Documentation provided under this Agreement, belongs exclusively to Us. Unencumbered title to the Software and Documentation will, at all times, remain with Us. You agree to use reasonable diligence to guard against unauthorized use, reproduction, re-engineering, distribution or publication of the Software or SaaS Services in electronic or physical form.
5. Warranty and Indemnity
5.1 Warranty. We warrant that We are the owner of the Software and provider of the SaaS Services, and have the right and authority to grant You access to the SaaS Services. We do not warrant, guarantee, accept any condition or make any representation that the SaaS Services will meet Your requirements or that the use of the SaaS Services will be uninterrupted or error-free. No other verbal or written information provided by Us will create a warranty or in any way increase Our liability, and You will not rely on such information.
5.2 Disclaimer. There are no warranties for services. We make no express representations or warranties, or accept any conditions except those expressly stated in sections 5.1 above. We disclaim all other representations, warranties and conditions, express or implied, including, without limitation, implied warranties or conditions of merchantability and fitness for a particular purpose. We make no express representation or warranties as to the effectiveness of any LockDocs product shown or described in any Documentation, including training videos, that are provided or made available as part of the SaaS Services.
6. Limitation of Liability and Remedies
6.1 Limitation of Liability. In no event will We be liable for any losses or damages incurred by You, whether direct, indirect, incidental, special, exemplary or consequential, including lost or anticipated profits, savings, interruption to business, loss of business opportunities, loss of business information, the cost of recovering such lost information, the cost of substitute intellectual property or any other pecuniary loss arising from the use of, or the inability to use, the SaaS Services or Documentation regardless of whether You have advised Us or We have advised You of the possibility of such damages. Our aggregate liability in respect of any and all claims will be limited to the cumulative total amount of fees paid by You to access the SaaS Services. The foregoing limitations apply regardless of the cause or circumstances giving rise to such loss, damage or liability, even if such loss, damage or liability is based on negligence or other torts or breach of contract (including fundamental breach or breach of a fundamental term). Neither You nor We may institute any action in any form arising out of this Agreement more than one (1) year after the cause of action has arisen. Some provinces do not allow the exclusion of limitation of incidental or consequential damages so the above exclusions may not apply.
6.2 Dispute Resolution. You acknowledge that We possess valuable confidential and proprietary information, including trade secrets and business practices, which would be damaging to Us if revealed in open court. You further acknowledge and agree that it is preferable to resolve all disputes confidentially, individually and in an expeditious and inexpensive manner. Accordingly, You agree that any dispute will be resolved by private dispute resolution, rather than court action. Before commencing any arbitration in the manner set out in Section 6.3 below, both Parties shall first attempt to resolve any dispute or differences by way of good faith negotiation. The good faith negotiation shall commence by each of Us and You communicating our respective positions regarding the complaint, claim, dispute or controversy to the other, and how the both of us should resolve the dispute. Both Parties shall then make good faith efforts to negotiate a resolution of the claim, dispute or controversy. Neither Party shall commence any arbitral proceedings unless and until the good faith negotiation fails.
6.3 Arbitration. Any claim, dispute or controversy (whether in contract, tort or otherwise, whether pre-existing, present or future, and including statutory, common law, intentional tort and equitable claims capable in law of being submitted to binding arbitration) against Us, Our agents, employees, officers, directors, successors, assigns or affiliates (collectively, for purposes of this paragraph, “LockDocs Inc.”) arising from or relating to this Agreement, its interpretation or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), LockDocs Inc’s advertising or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. The arbitration will be limited solely to the dispute or controversy between You and LockDocs Inc. Any award of the arbitrator(s) shall be final and binding on You and LockDocs Inc, and may be entered as a judgment in any court of competent jurisdiction.
7. Successors and Assigns
7.1 Successors and Assigns. You may not assign Your rights and obligations under this Agreement to any party at any time. This Agreement will endure to the benefit of and will be binding on Us and Our respective successors and permitted assigns. In the event of corporate merger, amalgamation, divestiture or asset sale, We will have the right to transfer and assign Our rights and obligations hereunder to any third party (the “Assignee”), upon written notice to You, provided that We cause the Assignee to agree in writing to all the terms and conditions contained in this Agreement.
8.1 Upgrades. Other than our obligation under Section 2.4(b), We shall have no other obligation to provide updates or support services to You. We will use reasonable efforts to provide ongoing support and remedies to identified errors and defects, on a time and material basis.
9. Confidentiality and Data Protection
10. Term & Termination
10.1 Term. The term shall commence upon Your agreement to be bound by this Agreement, and shall continue unless terminated earlier as set forth in section 10.2.
10.2 Termination. This Agreement may be terminated by:
(a) either Party immediately upon a material breach by the other Party that has not been cured within thirty (30) days after receipt of notice of such breach; or
(b) either Party upon providing the other Party thirty (30) days’ prior written notice.
10.3 Effect of Termination. Upon termination or expiration of the Agreement:
(a) We shall immediately cease providing the SaaS Services and all usage rights granted under Section 2.1 shall terminate;
(b) at Your request, and for a period of up to thirty (30) days after termination or expiration, We may permit You to access to the SaaS Services solely to the extent necessary for you to retrieve a file of your data then in the services environment. You acknowledge and agree We have no obligation to retain your data and that your data may be irretrievably deleted after thirty (30) days following termination or expiration of the Agreement;
(c) upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall be immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the Parties;
(d) if We terminated the Agreement due to a breach by You, then You shall immediately pay to Us all amounts then due under this Agreement and to become due during the remaining term of the Agreement, but for such termination; and
(e) if You terminated the Agreement due to a breach by Us, then We shall immediately repay to You all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination date.
10.4 Survival. Sections 2.2, 3 through 6, 9, 10 and 12 shall survive the expiration or termination of the Agreement for any reason.
11.1 Service Fee. You agree to pay a service fee for accessing and using the SaaS Services, according to the LockDocs Schedule of Fees, which is provided to you separately and herein incorporated by reference. You agree service fees are non-cancellable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law.
11.2 Invoicing and Payment. Payment of the service fee shall be made by pre-authorized payment by credit card, debit transaction, or other electronic funds transfer. A method of pre-authorized payment must be selected at the time of registering for SaaS Services. Any changes to Your payment information must be communicated to LockDocs in a timely manner to avoid suspension of SaaS Services. Any payments made are non-refundable.
11.3 Suspension for non-payment. We reserve the right to suspend delivery of SaaS Services and to suspend our obligations under Section 2.4 if You fail to timely pay any amounts due under this Agreement, but only after We inform You of such failure, and such failure continues for fifteen (15) days. Suspension of SaaS Services will not release You from payment obligations under this Agreement. You agree that We will not be liable to You or any third party for any liabilities claims or expenses arising from or relating to suspension of the SaaS Services resulting from Your nonpayment.
12. General Provisions
12.1 Consents. Any consent required under this Agreement shall not be unreasonably withheld.
12.2 Section Headings. The section and paragraph headings used herein are for convenience only and are not a part of this Agreement and shall not be used in construing the Terms and Conditions contained herein.
12.3 Entire Agreement. This Agreement constitutes the entire agreement between the Parties, and no amendment to the terms of this Agreement will be effective unless in writing and signed by both Parties hereto.
12.4 Equitable Relief. You agree that any breach of this Agreement by You would cause irreparable damage, and that, in event of such breach, in addition to any and all remedies at law, We will have the right to an injunction, specific performance or other equitable relief to prevent the continuous violations of the terms of this Agreement.
12.5 Force Majeure. Notwithstanding anything herein to the contrary, We shall not be liable for any delay or failure in performance caused by circumstances beyond Our reasonable control.
12.6 Relationship of the Parties. This Agreement does not constitute a partnership or joint venture, and nothing herein contained is intended to constitute, nor will it be construed to constitute, such a partnership or joint venture. Except as expressly provided in this Agreement, neither We nor You will have any power or authority to act in the name or on behalf of the other party, or to bind the other party to any legal agreement.
12.7 Severability. The provisions of this Agreement are to be considered separately, and if any provision hereof should be found by any court or competent jurisdiction to be invalid or unenforceable, this Agreement will be deemed to have effect as if such provision were severed from this Agreement.
12.8 Notices. All notices and communications required or permitted under this Agreement will be in writing and will be sent by registered or certified mail, postage prepaid, return receipt requested, facsimile transmission (“fax”), with confirmed answer back, or electronic mail (email), with confirmation of receipt, to Us or You at the respective addresses we provide to each other or to such other address as We or You may from time to time specify by notice to the other given as provided in this paragraph. Our mailing address is:
Email correspondence may be sent to: email@example.com. A notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
12.9 Jurisdiction. Subject to the dispute resolution provisions set out in sections 6.2 and 6.3 of this Agreement, the Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute arising hereunder.
12.10 Governing Law. This Agreement and any sales thereunder shall be deemed to have been made in the Province of Ontario, and shall be construed and interpreted according to the laws of the Province of Ontario and the applicable laws of Canada.
12.11 Revisions to this Agreement. We may at any time revise the terms of this Agreement by updating these terms and by providing notice to You of any such changes.