Software Agreement
1. Definitions and Interpretation
(a) The definitions set out in Schedule A apply to this Agreement.
(b) In this Agreement:
(i) the terms “including”, “include” and “includes” are deemed to be followed by the statement “without limitation”, and none of these terms will be construed to limit any word or statement it follows,
(ii) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions,
(iii) a reference to a person includes an individual, partnership, association, trust, unincorporated organization, society or corporation,
(iv) a reference to a day, month, quarter, or year means a calendar day, month, quarter, or year, unless the context indicates otherwise and
(v) a reference to a statute includes a reference to such statute and its regulations, all amendments made to the statute and in force, and to any statute or regulation that has the effect of supplementing or superseding such statute or its regulations.
2. Grants and Rights to use Sylogist Software
(a) On acceptance of an Order by Sylogist or Partner (as applicable), and subject to Customer’s compliance with the Agreement, Sylogist grants Customer a non-exclusive, non-transferable, non-sublicensable license to have Authorized Users use and access the Sylogist Software, solely for Customer’s own use and business purposes, up to any limits specified in the Order.
(b) Customer shall ensure that only Authorized Users have access to and can use the Sylogist Software. Customer is responsible and liable for any use of the Sylogist Software by its Authorized Users and for all activity occurring under Customer’s accounts or using Customer’s access credentials. Customer shall:
(i) maintain the confidentiality of any authentication or access credentials associated with Customer’s use of the Sylogist Software, and Sylogist has no liability whatsoever for any claims, losses or damages arising from Customer’s, Customer’s administrator’s or an Authorized User’s failure to manage the confidentiality of login IDs and passwords or other authentication or access credentials;
(ii) promptly notify Sylogist regarding any possible misuse or unauthorized use of Customer’s accounts or authentication credentials, or any security incident related to the Sylogist Software;
(iii) administer Customer’s access credentials in connection with its use of the Sylogist Software;
(iv) ensure that each Authorized User will have and use unique access credentials to access the Sylogist Software;
(v) keep all access credentials information up-to-date; and
(vi) promptly terminate the access credentials of
(A) a terminated Authorized User on termination of employment and
(B) an Authorized Userwho has had authorization withdraw by Customer.
(c) Sylogist reserves the right (but has no obligation) to terminate, suspend or restrict any Authorized User’s account if any suspicious or unusual activity arises relating to the use of an Authorized User’s access credentials, in which case Sylogist shall endeavor to notify Customer following such termination, suspension or restriction so that Sylogist and Customer may work to resolve any issues relating to such account as soon as practicable.
(d) Customer shall abide by all applicable local, state, provincial, federal and national law, treaties in connection with Customer’s use of the Sylogist Software, including those related to export control, data privacy, international communications, and the transmission of Personal Information.
(e) As part of the Sylogist Software, Sylogist or Partner may provide Customer with software that is installed on a Customer’s premises to enable use of the online Sylogist Software. Customer may use such enabling software only in connection with use of the Sylogist Software and in accordance with any licensing terms provided with such enabling software.
(f) When the Customer is responsible under an Order for establishing, configuring and administering Microsoft or third party environments then the terms in this Schedule B apply.
(g) When Customer uses a payments provider other than Sylogist then
(i) PCI compliance is the Customer’s sole responsibility, and the terms in Schedule C will apply and
(ii) the agreement between Customer and the payments provider is solely between the Customer and the payments provider and does not involve Sylogist. If Sylogist is the payments provider and has access to payment data then Sylogist will, at its expense, at all times remain in compliance with the then-current Payment Card Industry Data Security Standard (“PCI DSS”) requirements, including remaining informed at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS.
3. Reservation of Rights and Restrictions
(a) Customer shall not:
(i) reverse engineer, decompile, or disassemble any Sylogist Software, or attempt to do so;
(ii) install or use Sylogist Software in any way that would subject Sylogist Software to an Excluded License;
(iii) remove, disable, circumvent or tamper with any technological protection measures implemented in or with the Sylogist Software, including encryption, copy protection, digital rights management, or access control;
(iv) distribute, sublicense, rent, lease, or lend any Sylogist Software, in whole or in part, or use them to offer hosting services to a third party;
(v) combine Sylogist Software with Customer value add to create a Customer-branded solution that Customer markets to its customers; or
(vi) use the Sylogist Software to undertake any activity or host any Customer Data that:
(1) is unlawful, fraudulent, harmful, malicious, obscene, or offensive;
(2) threatens or violates the rights of others;
(3) disrupts or gains (or intends to disrupt or gain) unauthorized access to data, services, networks, or computing environments within or external to Sylogist;
(4) sends unsolicited, abusive, or deceptive messages or spam of any type;
(5) distributes any form of malware; or
(6) could lead to death, serious bodily injury, or property or environmental damage.
4. Software Changes
(a) At any time and at Sylogist’s discretion, Sylogist may make changes to the Sylogist Software, including Documentation. Such changes are intended to make available additional features and functionality, improve and clarify existing commitments, comply with applicable law, address changes in Third Party Software, or maintain alignment to operational and security standards or applicable laws. Changes will not degrade the security or data protection features of the Sylogist Software. Any changes that do not meet these conditions only take effect, and Customer only accepts them, on entering into a new Order or on renewing an Order for the Sylogist Software. Sylogist is under no obligation to make enhancements or add additional features to Sylogist Software (including Accelerators).
5. Pricing and Payment Terms
(a) Unless stated otherwise in an Order, the following terms apply when Customer has entered into an Order with Sylogist:
(i) Customer shall pay Sylogist the amounts set out in each Order, in accordance with any terms set out in the Order. Unless stated otherwise in an Order, Customer will pay Sylogist annually, within 30 days of Sylogist’s invoice (that is, on a net 30 day basis), and Sylogist may increase the annual amounts due under the Order up to five percent (5%) per year. Customer’s right to use Sylogist Software is contingent on Customer paying the applicable fees and charges set out in an Order.
(ii) Customer is responsible for purchasing additional licenses or access for Authorized Users at any time that Customer exceeds the license limits or metrics set out in an Order (such as the number of employees or users). Sylogist will invoice Customer for the fees for any such additional licenses or access on a pro-rated basis to the end of the current year of the current subscription term or renewal term, and then annually with other licenses and access rights.
(iii) Orders for some Sylogist Software will include fees that are calculated based on Customer’s use of the Sylogist Software. If Customer discontinues use of such Sylogist Software without terminating the Order in accordance with the Software Terms then Customer is required to pay the fees set out in the Order for such Sylogist Software.
(iv) Customer must provide a payment method or, if eligible, choose to be invoiced for purchases made on its account. Customer consents to Sylogist’s use of account information regarding the selected payment method provided by the issuing bank or applicable payment network and authorizes Sylogist to charge Customer using that payment method for Orders.
(v) Sylogist may, in addition to other remedies (such as suspending or terminating access to the Sylogist Software), charge interest on any payments to Sylogist that are more than fifteen (15) calendar days past due at a rate of eighteen percent (18%) per annum, calculated and payable monthly, or the highest amount allowed by law, if less.
(vi) Sylogist’s fees are exclusive of all taxes. Customer shall pay taxes as required in an Order or invoice, excluding only taxes based solely on Sylogist’s income.
(vii) Unless Customer has provided written notice that Customer does not intend to have an Order renew in accordance with Section 13(b) then Sylogist will provide Customer with an invoice for the renewal term in advance of the renewal term. Such invoice will include any applicable pricing changes for each year in the renewal term, and any changes to the terms of this Agreement for the renewal.
(b) The following terms apply when Customer orders from Partner:
(i) Customer shall pay Partner the amounts set out in each Partner Order, in accordance with any terms set out in the Order. Customer’s right to use Sylogist Software is contingent on Customer paying the applicable fees and charges set out in a Partner Order.
(ii) Customer is responsible for purchasing from Partner additional licenses or access for Authorized Users if Customer will exceed the license limits or metrics set out in an Order. Partner will invoice Customer for the fees for any such additional licenses or access on a pro-rated basis to the end of the current year of the current subscription term or renewal term, and then annually with other licenses and access rights.
(iii) Other applicable pricing and payment terms are as set out in the Customer’ agreement with Partner or in the Order between Customer and Partner and will be provided by Partner.
(iv) If Customer is not making the required payments to Partner then, despite any contrary terms in the Customer’s agreement with Partner or in the Partner Order, Sylogist may suspend or terminate Customer’s access to the Sylogist Software.
6. Account Management
(a) If specified in an Order, Customer shall authorize Sylogist as a partner or agent to place orders for Third Party Software on Customer’s behalf and to manage Customer’s Third Party Software. If specified in an Order, Customer shall grant Sylogist administrator privileges for Third Party Software to allow Sylogist to provision, administer and support (as applicable) the Sylogist Software.
(b) If an Order is placed with Partner then Customer shall work directly with Partner for any account management questions, additional Sylogist Software license requirements and additional Orders, and professional services assistance. The Customer’s agreement with Partner, or the Order with Partner, will contain more details and applicable terms and conditions.
(c) Customer has the right to work with another reseller partner, and in some cases Sylogist and a Partner will discontinue their relationship. In such circumstances, Customer may contact Sylogist for assistance with finding a replacement partner reseller, or Customer may purchase from Sylogist directly. If Customer moves to a new reseller partner then, subject to the terms of the agreement with the existing reseller partner, Customer may be required to remove Partner Customizations.
7. Support
(a) Details of the email and phone support services provided by Sylogist for the Sylogist Software under this Agreement are available in the support section of the sylogist.com website. Such support terms may be varied in an Order with a Partner, and if an Order is placed with Partner then Partner will provide Partner’s applicable support contact details. Support for any Partner Customizations is provided exclusively by Partner. Support for Accelerators is provided at Sylogist’s discretion.
8. Third Party Software and Services
(a) If an Order indicates that Third Party Software or licenses for Third Party Software is required to use the Sylogist Software then the Order only takes effect after Customer has entered into an agreement with, or accepted the terms presented by, the Provider of such Third Party Software.
(b) The Third Party Software is provided or made available subject to separate terms that govern the use of the Third Party Software by the Provider.
(c) Installation of Third Party Software must be authorized by Sylogist, other than for Partner Customizations which must be approved by Partner.
(d) Sylogist makes no representations, warranties, guarantees or conditions regarding, and assumes no responsibility or liability whatsoever for, Third Party Software (including Partner Customizations). Customer is solely responsible and liable for its use of any Third Party Software. Any rights Customer has regarding Customer’s use of Third Party Software is set out in the separate terms that govern the use of Third Party Software.
(e) If Customer is obtaining the right to use payment processing using SylogistPay pursuant to an Order then Customer will be required to enter into a separate payment processing agreement or merchant agreement with Sylogist’s third party provider. Sylogist makes no representations, warranties, guarantees or conditions regarding, and assumes no responsibility or liability whatsoever for, the services provided by such third party provider.
9. Privacy and Data Protection
(a) Sylogist and Partner do not own any Customer Data. Customer is solely responsible and liable for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data.
(b) Each party agrees to abide by applicable privacy and data protection law with respect to the collection, access, use, disclosure, and destruction of Personal Information.
(c) Customer consents to the processing of Personal Information by Sylogist (or Partner) as provided in this Agreement. Before providing Personal Information to Sylogist (or Partner), Customer will obtain all required consents from third parties under applicable privacy and data protection laws.
(d) Customer appoints Sylogist (or Partner, when applicable) as Customer’s agent for the purposes of interfacing with and providing instructions to Providers and Sylogist’s Representatives for the purposes of this Section 9.
(e) Customer grants Sylogist (or Partner, when applicable) the right to host, use, process, display and transmit Customer Data as required to make the Sylogist Software available to Customer and to provide support for the Sylogist Software.
(f) Sylogist is not responsible for any disclosure, modification or deletion of Customer Data resulting from Customer’s use of Third Party Software.
10. Confidentiality
(a) Each party (as a receiving party) shall:
(i) keep the disclosing party’s Confidential Information as confidential;
(ii) use reasonable administrative, technical, organizational and physical safeguards, in accordance with how it protects its own Confidential Information, and in no event using less than a reasonable standard of care, to avoid unauthorized disclosure and unauthorized access to the Confidential Information;
(iii) use the disclosing party’s Confidential Information only for the purposes of performing its obligations or exercising its rights or powers under the Agreement; and
(iv) not disclose Confidential Information to a third party, except to the receiving party’s Representatives, and then only on a need-to-know basis under non-disclosure obligations that are in place before such disclosure and that are at least as protective as the confidentiality provisions in this Agreement. Each receiving party remains responsible for the use of Confidential Information by its Representatives.
(b) A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (to the extent legally permissible) to enable the other party to seek a protective order.
(c) The obligations in this Section 10 apply
(i) for Customer Data, until it is deleted from the Sylogist Software;
(ii) for Sylogist Software, until it falls within one of the exceptions set out below,
(iii) for Personal Information, for as long as it is held by a party, and
(iv) for all other Confidential Information, for a period of five (5) years after a party receives the Confidential Information.
(d) Confidential Information does not include information that falls into one of the following exceptions:
(i) information that becomes publicly available without a breach of a confidentiality obligation;
(ii) information that the receiving party received lawfully from another source without a confidentiality obligation;
(iii) information that is independently developed without use of other Confidential Information (as can be demonstrated by the receiving party’s records);
(iv) information that was known by the receiving party prior to receiving the information from the disclosing party or
(v) a comment or suggestion volunteered about the receiving party’s business, products or services.
(e) Both parties acknowledge that the receiving party’s use or disclosure of the Confidential Information in a manner inconsistent with or in breach of this Agreement may cause the disclosing party irreparable damage for which remedies other than injunctive relief or other equitable relief may be inadequate. The parties agree that the disclosing party may seek injunctive or other equitable relief seeking to restrain such use or disclosure, without posting a bond or other security.
(f) On discovery of theft, loss or compromise of Confidential Information, unauthorized access, use or disclosure of Confidential Information, or data breach or security breach of Confidential Information, the receiving party shall notify the disclosing party as soon as practical, and the receiving party shall provide the disclosing party with the level of cooperation reasonably required by the disclosing party to investigate, assess and mitigate the event, including by assisting with the investigation and root cause analysis of the event, making available information related to the event (including records, logs and files) required under applicable law, and taking reasonable steps to contain and remedy the effects of the event and taking reasonable steps to prevent re-occurrence of the event.
(g) Customer’s agreement with Partner will set out the confidentiality obligations between Customer and Partner.
11. Intellectual Property Ownership
(a) Sylogist and its licensors exclusively own all right, title, and interest, including all Intellectual Property, in and to the Sylogist Software. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Sylogist Software or the Intellectual Property owned by Sylogist. Sylogist Software is protected by copyright and other intellectual property laws and international treaties. Sylogist reserves all rights not expressly granted in this Agreement.
12. Limited Warranties
(a) Sylogist warrants that the current Sylogist Software version will perform substantially as described in the Documentation. If it does not and Customer timely notifies Sylogist then Sylogist shall, at Sylogist’s option, repair or replace the Sylogist Software or update the Documentation if the Documentation is in error. Sylogist is not responsible for any Sylogist Software performance issues or restricted functionality resulting from Third Party Software. The foregoing warranty does not apply to Accelerators.
(b) The remedies above are Customer’s sole remedies for breach of the warranties in this section. These warranties end when access to Sylogist Software ends.
(c) SYLOGIST AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SYLOGIST SOFTWARE. SYLOGIST AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT
(I) THE USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; OR
(II) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. EXCEPT FOR THE WARRANTY ABOVE IN SECTION 12(a), THE SYLOGIST SOFTWARE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SYLOGIST AND ITS LICENSORS.
(d) While Sylogist uses industry-leading security measures and employs a hosting service provider who uses industry leading security measures to endeavor to keep all data secure, Sylogist cannot guarantee that Sylogist, Providers, Partner or hosting services providers can prevent all forms of third party disruptions or unauthorized third party access. Upon identification of any such disruption or access Sylogist will take the steps set out in Section 10 (f).
13. Term and termination
(a) This Agreement will remain in effect until the last Order is terminated in accordance with this Section 13.
(b) The term for an Order for Sylogist Software will automatically renew for the same term as the initial subscription period stated in the Order unless:
(i) the Order is previously terminated in accordance with this Section 13;
(ii) the Order states otherwise; or
(iii) Customer provides Sylogist with at least six (6) months of written notice before the end of the current subscription period stated in the Order (or before the end of the current renewal period, as applicable) indicating that Customer does not want to renew the Order.
(c) Without limiting other remedies it may have, either party may terminate this Agreement (which includes all Orders) or a specific Order placed with Sylogist on 30 days’ notice for material breach if the other party fails to cure the breach within the 30 day notice period. Customer’s non-payment of the undisputed fees set out in an Order constitutes a material breach. Termination of a specific Order does not affect any other Orders.
(d) Sylogist may suspend Customer’s access to, or use of, Sylogist Software or access to support from Sylogist
(i) during any period of Customer’s material breach,
(ii) if there is a security breach,
(iii) if Customer is in violation of applicable law, or
(iv) if Customer’s right to use any required Third Party Software has been terminated or has expired. Sylogist will give Customer notice before suspending Sylogist Software when it can reasonably do so.
(e) On termination of the Agreement (which includes termination of all Orders) or termination of an Order, which occurs at the end of the current term of an Order or at the end of the cure period (in the case of termination for breach):
(i) Sylogist will make available to Customer a file of Customer Data for the applicable Sylogist Software within 30 days of termination of the Order if Customer requests a file at the time of termination, provided Sylogist has no obligation to retain Customer Data for the applicable Sylogist Software, and Sylogist will delete such Customer Data after 30 days after termination;
(ii) all licenses granted under a terminated Order terminate immediately, and Customer shall cease using any Sylogist Software under the Order, including any elements of the Sylogist Software (including Accelerators) that Customer may have installed on-premises or in an environment that Customer operates or controls;
(iii) Customer shall pay all amounts due under any unpaid invoices for each terminated Order (which become due and payable immediately), and in the case of termination due to Customer’s breach of the Agreement, payment to the end of the current subscription term (or current renewal term, as applicable) for each terminated Order; and
(iv) each party (the receiving party) who has received Confidential Information from the other party shall, at the other party’s option, return or destroy the other party’s Confidential Information. In the case of Customer as the receiving party, it shall destroy any on-premises copies of the Sylogist Software (including Accelerators) that Customer installed on-premises or in an environment that Customer operates or controls. At the other party’s request, the receiving party shall certify in writing to the other party that the receiving party has complied with the obligations of this section.
(f) The following sections survive the termination of this Agreement (which includes all Orders): Section 1, 5 (until all required payments are paid in full), 9, 10, 11, 13(e), 13(f), 15 and 16.
14. Indemnities
(a) Subject to the other terms in this Section 14, Sylogist shall defend Customer against any third party Claims that the use of the Sylogist Software by Customer infringes or misappropriates such third party’s Intellectual Property in the United States or Canada, and Sylogist shall indemnify and hold Customer harmless from the amount of any resulting adverse final judgment (or settlement amount to which Sylogist consents).
(b) Sylogist’s obligations in Section 14(a) do not apply to the extent that the Claim or adverse final judgment is based on, arises from or relates to:
(i) Customer’s use of the Sylogist Software after Sylogist
(A) notifies Customer to discontinue use due to such a Claim,
(B) provides Customer with the right to access a non-infringing update of the Sylogist Software at no additional cost or
(C) has terminated Customer’s right to access and use the Sylogist Software;
(ii) Customer combining the Sylogist Software with a non-Sylogist product (hardware, software or service), data or business process, including combining the Sylogist Software with Third Party Software;
(iii) damages attributable to the value of the use of a non-Sylogist product, data or business process (including Third Party Software);
(iv) Customer altering or modifying the Sylogist Software, including any modifications by third parties who are not authorized by Sylogist;
(v) Customer’s distribution of the Sylogist Software to, or Customer’s use for the benefit of, any third party who is not an Authorized User;
(vi) Customer’s improper use of the Sylogist Software or other breach of the Sylogist Software use provisions and restrictions in the Agreement; or
(vii) a trade secret Claim, where Customer acquired the trade secret
(A) through improper means,
(B) under circumstances giving rise to a duty to maintain its secrecy or limit its use or
(C) from a person (other than Sylogist) who owed to the party asserting the Claim a duty to maintain the secrecy or limit the use of the trade secret. Customer shall reimburse Sylogist for any Loss suffered by or incurred by Sylogist from these actions.
(c) If Sylogist receives information concerning an infringement or misappropriation Claim related to the Sylogist Software, or if as a result of an infringement or misappropriation Claim Customer’s use of the Sylogist Software is enjoined by a court of competent jurisdiction, then Sylogist may, at Sylogist’s expense and without obligation to do so, either
(i) procure for Customer the right to continue to access and use the Sylogist Software,
(ii) modify the Sylogist Software or replace it with a functional equivalent, to make the Sylogist Software non-infringing, in which case Customer will stop running the affected portion of the Sylogist Software immediately or
(iii) terminate the Agreement as it relates to the affected portion of the Sylogist Software and reimburse Customer for any fees that have been pre-paid and which have not been applied for such affected portion of the Sylogist Software.
(d) Sylogist shall defend, indemnify and hold Customer harmless from and against any third party Claim and resulting Loss that arises from, is the result of, or that is caused by
(i) Sylogist’s breach of this Agreement or
(ii) Sylogist’s gross negligence, willful misconduct or fraud in connection with its performance of its obligations under this Agreement, provided that Sylogist’s foregoing indemnity obligations do not apply to the extent that the third party claim relates to, arose from or was caused by
(A) information provided to Sylogist by or on behalf of Customer or
(B) Customer contributing to such third party Claim.
(e) Customer must notify Sylogist promptly in writing of the Claim and give Sylogist sole control over Sylogist’s defense or settlement of the Claim. Sylogist’s obligations in this Section 14 do not apply to the extent that Customer has not provided Sylogist with prompt notice of a Claim or has not given Sylogist control over the defense of a Claim, and Customer’s actions have adversely affected Sylogist’s ability to fulfill Sylogist’s obligations.
(f) Customer shall provide Sylogist with reasonable assistance in defending the Claim, and Sylogist will reimburse Customer for reasonable out of pocket expenses that are incurred in providing that assistance.
15. Limitations of Liability
(a) OTHER THAN IN THE CASE OF FRAUD, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES FOR LOSS OF PROFITS, SAVINGS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS, OR FOR ANY INDIRECT DAMAGES OF WHATEVER NATURE (INCLUDING CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES) ARISING IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL SYLOGIST’S AGGREGATE LIABILITY TO CUSTOMER (INCLUDING LIABILITY TO ANY PERSON WHOSE CLAIM IS BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY CUSTOMER), WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR SYLOGIST SOFTWARE UNDER THIS AGREEMENT. DESPITE THE FOREGOING, SYLOGIST’S AGGREGATE LIABLITY FOR CLAIMS BROUGHT BY CUSTOMER UNDER SECTION 14 (INDEMNITIES), OR DUE TO A SYLOGIST BREACH OF SECTION 9 (PRIVACY AND DATA PROTECTION) OR A SYLOGIST BREACH OF SECTION 10 (CONFIDENTIALITY) IS CAD$1,000,000.
16. General
(a) Upon receiving prior written approval from Sylogist, and upon payment of all fees that are due, Customer may assign the Software Terms together with all (not some) Orders to
(1) a Customer Affiliate or
(2) a third party to whom the Agreement has been assigned by Customer as part of
(a) a divestiture of all or part of Customer’s business or assets or
(b) a merger involving Customer. On such assignment, Customer shall discontinue accessing the licensed Sylogist Software. Sylogist may assign this Agreement or transfer its rights and obligations under this Agreement without Customer’s consent after providing Customer with written notice.
(b) Sylogist may perform its obligations under this Agreement through its Affiliates, and use contractors to provide access to the Sylogist Software and to support the Sylogist Software (such as hosting services providers and third party support contractors). Sylogist remains responsible for its Affiliates’ and contractor’s performance under this Agreement.
(c) The Software Terms and each Order form the parties’ entire agreement concerning the subject matter of the Agreement, and supersede any prior or contemporaneous communications, and any prior agreement between the parties and their Affiliates relating to Sylogist Software. Any purchase order or any general terms and conditions Customer maintains or provides do not apply to this Agreement. The schedules attached to the Agreement are integral parts of this Agreement and are incorporated into the Agreement by reference. If there is a conflict or inconsistency between the Software Terms and the terms in a Customer’s agreement with Partner or in an Order with Partner, the provisions in the Software Terms prevail and govern.
(d) Sylogist may change these Software Terms. The latest version is available at: https://www.sylogist.com/sylogist-software-agreement. Customer is responsible for checking this site periodically for changes to the Software Terms. When the Software Terms are changed, Customer is bound by such change as of the date the change is posted.
(e) All notices, requests, consents, Claims, waivers, and other communications, other than routine communications having no legal effect, must be in writing and sent to a party at the email address provided on the Order. All notices, requests, consents, Claims, waivers and other communications are deemed to have been given on the date sent by e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.
(f) Sylogist is an independent contractor for all purposes regarding this Agreement. Neither this Agreement, nor any of its provisions, will be construed as creating a partnership, joint venture, agency, or franchise relationship or any fiduciary duty between the parties.
(g) If a court having jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect to the maximum extent possible.
(h) No waiver by a party of a right, remedy, power or privilege will be effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise of any other right, remedy, power, or privilege.
(i) Neither party will be liable for any failure or delay in performance due in whole or in part to a Force Majeure Event.
(j) If Customer’s head office or primary office as of the Effective Date was located in the United States then this Agreement is governed by, and construed in accordance with, the laws of the State of Delaware, and the federal laws of the United States applicable in the State of Delaware, without giving effect to any choice or conflict of law provisions, principle or rule (whether of the State of Delaware or any other jurisdiction). If Customer’s head office or primary office as of the Effective Date was located in Canada or anywhere outside of the United States then this Agreement is governed by, and construed in accordance with, the laws of the Province of Alberta, and the federal laws of Canada applicable in the Province of Alberta, without giving effect to any choice or conflict of law provision, principle or rule (whether of the Province of Alberta or any other jurisdiction). If either party commences litigation in connection with this Agreement then the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses. The provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement.
(k) To the fullest extent permitted by law, each party waives any right it may have to a trial by jury in respect of litigation directly or indirectly arising out of, under or in connection with this Agreement. Each party further waives any right to consolidate any action in which a jury trial cannot be or has not been waived.
Schedule A - Definitions
The following definitions have the meanings set out below:
“Accelerator” means a Sylogist algorithm, program, app, workflow, module, add-in, plug-in or other software element.
“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party, where “control” for the purpose of this definition means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.
“Authorized User” means any person Customer permits to use Sylogist Software, or access Customer Data, subject to any restrictions on Authorized Users set out in an Order.
“Claim” means a claim, action, cause of action, complaint, lawsuit, judgement or suit.
“Confidential Information” means non-public information that one party (the disclosing party) provides to the other party (the receiving party), that is designated as “confidential” or “proprietary” or that a reasonable person should understand is confidential. Customer’s Confidential Information includes Customer Data; Customer’s account authentication credentials, vendor and customer lists, transaction descriptions and dollar amounts; and confidential information about Customer that Partner provides to Sylogist. Sylogist’s Confidential Information includes the Sylogist Software; the terms of this Agreement; and fees, pricing and payment terms.
“Customer” means the entity identified on the Order.
“Customer Data” means any Customer data, information, or material that Customer or any Authorized User provides or submits that is stored in, or run on or through, the Sylogist Software.
“Documentation” means the published documentation for Sylogist Software.
“Effective Date” means the effective date of the Order, or if no such date is indicated in an Order, the date the Order is entered into.
“Excluded License” means a license that requires, as a condition of use, modification or distribution of the software subject to the excluded license, that such software or other software combined or provided with such software be
(a) disclosed or distributed in source code form;
(b) licensed for the purpose of making derivatives; or
(c) redistributable at no charge.
“Force Majeure Event” means an event beyond the reasonable control of a party or such party’s contractors, agents or suppliers, including transmission failures, failure of phone lines or phone equipment, power failure, strikes or other labor disturbances, acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters, epidemics or pandemics or public health restrictions.
“Intellectual Property Rights” means any inventions, patent applications, patents, industrial design applications, industrial designs, copyright (whether or not registered), trademarks (whether or not registered), trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Loss” means loss, liability, damages, charge, cost, and expense, including reasonable attorney’s fees, expert witness fees, and court costs.
“Order” means an order that has been accepted by Customer evidencing a subscription by Customer. An order may be between Customer and Sylogist, or, if Customer is purchasing through a Partner, between Partner and Customer.
“Partner” means the third party reseller who has entered into an agreement with Customer for the use of Sylogist Software.
“Partner Customization” means a change, modification, enhancement, revision or alteration to the Sylogist Software, or to an extension of Sylogist Software, made by Partner that is made available to Customer.
“Personal Information” means information about an identifiable individual.
“Provider” means a provider of a Third Party Software.
“Representatives” means a party’s employees, officers, Affiliates, contractors, advisors and consultants.
“Supported Payment Gateway” means a third party payment gateway that is integrated with the Sylogist Software, where the payment gateway may be Moneris, iATS, Global Payments or Stripe.
“Sylogist” means Sylogist Ltd. and its Affiliates.
“Sylogist Software” means the Sylogist software to which Customer subscribes under an Order, as may be updated, and includes all modifications, extensions, customizations (other than Partner Customizations) and scripts or other derivative works to the software provided or developed by Sylogist, including any Accelerators that Sylogist may make available to Customer. “Sylogist Software” does not include Third Party Software.
“Third Party Software” means any third party or Partner software (including any software provided by Partner that modifies other third party software), add-on, application, program, data, service, website or product, including Partner Customizations, that is not branded or owned by Sylogist.
The Sylogist Software Agreement (the “Agreement”) is between Customer and Sylogist Ltd. (“Sylogist”) and consists of the Software Terms below and the terms in each Order. It becomes effective on the date of the first Order, whether such Order is with Sylogist or with Partner.
Schedule B – Environment Requirements
1. Environment Requirements
(a) The terms in this Schedule B only apply when indicated in Section 2(f).
(b) Customer shall at all times be a licensed user of, and authorized by, Microsoft to access and use the Microsoft Dynamics 365, Azure and any related Microsoft software, services or environments required for Customer’s use of the Sylogist Software as set out in the Order (such services and environments, as licensed to Customer, collectively referred to as, the “Microsoft Environments”). Customer is bound by the licenses and all other Agreements with Microsoft and any other licensors which apply to the Microsoft Environments.
(c) The Sylogist Software is installed and operates solely within Customer’s existing Microsoft Dynamics 365 tenant in the Microsoft Environments and all data, processes or logic used or provided by the Sylogist Software are stored and operate within the Microsoft Environments. The Sylogist Software does not use and is not reliant upon any Sylogist infrastructure to operate. The Microsoft Azure environment that hosts the Sylogist Software’s applications uses the infrastructure in the existing Microsoft Environments, and no part of the Sylogist Software relies on any servers or third parties outside the Microsoft Environments. This means that
(i) the Sylogist Software, once deployed in the Microsoft Environments, can be considered local to Customer, as it uses the same tenant as Customer’s instance of Microsoft Dynamics 365 utilizes; and
(ii) Microsoft Dynamics 365, which is also used for the delivery of the Sylogist Software, can seamlessly communicate with its corresponding Azure environment within the Microsoft Environments.
(d) Customer is responsible for establishing, configuring and administering the Microsoft Environments and is the administrator of the Microsoft Environments for Customer (including the Authorized Users). Sylogist does not add or remove or provide access to Dynamics 365 or the Sylogist Software and Sylogist is not responsible for the management of access to or the security or other settings of the Microsoft Environments.
(e) Customer shall install and configure the Sylogist Software in the Microsoft Environments in accordance with Sylogist’s instructions, or enable Sylogist to install and configure the Sylogist Software. To effectively deploy the Sylogist Software, Customer must have a system administrator user for both the development and production instances of the Microsoft Environments (Sylogist recommends this user be a “Dynamics 365 Sales Administrator” in Customer’s Office 365 administrator portal) and Sylogist needs to be authorized as an “Owner” under the Customer Azure subscription to deploy our Azure components across all environments and remain as such until the full launch of the Sylogist Software, and thereafter for so long as Sylogist is providing Support Services, after which Customer can elect to remove or maintain Sylogist’s access to its Azure subscription and Dynamics 365 environment. Access is to be managed by Customer and is at Customer’s discretion.
(f) The availability of the Product for use by Customer is entirely dependent upon the operation and availability of the Microsoft Environments, and in some cases other services provided by third parties, such as the Supported Payment Gateways, all of which Customer is responsible for obtaining, configuring, managing and administering.
Schedule C – Third Party PCI Compliance
1. PCI Compliance
(a) The terms in this Schedule C only apply when indicated in Section 2(g).
(b) Sylogist Software is integrated with, and allows Customer to connect with, the Supported Payment Gateways. Supported Payment Gateways are responsible for providing security and PCI DSS compliance, and for enabling industry-standard fraud prevention tools such as 3D secure.
(c) Customer can connect with and make use of the Supported Payment Gateways to securely process credit card transactions within Customer’s Azure infrastructure and Microsoft Environments.
(d) The provision of access to the Supported Payment Gateways from within the Sylogist Software means that no payment card information is stored, logged or directly accessed by Sylogist – only the tokenized value returned from the processor is stored, thus allowing Customer to charge, refund and manage payments from within the Sylogist Software without having to manage payment card information.
(e) Customer shall comply with the applicable PCI DSS in force from time to time for any payment card information that Customer receives. Customer’s PCI DSS compliance is the responsibility of Customer and should be regularly assessed and validated with Customer’s payment gateway provider and Customer’s legal counsel.
Updated on: 2024.08.29
