Terms and Conditions - November 1, 2015
This Agreement consists of the terms and conditions set out below and the order form (the “Order Form”) entered into between ABAKiS™ Solutions Inc. (“ABAKiS™” or “The Company”) and you (collectively, the “Agreement”).
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE ABAKiS™ SOFTWARE SERVICES, AS DESCRIBED BELOW. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU SHOULD NOT AGREE WITH THESE TERMS AND MAY NOT ACCESS OR USE THE ABAKiS™ SOFTWARE SERVICES.
1. Agreement Definitions
“You” and “Your” refers to the individual or entity, and any Affiliates (as defined below) of such an entity that wants to use the ABAKiS™ software services as a service from ABAKiS™ by clicking accept below. Software as a service consists of system administration, system management, and system monitoring activities that ABAKiS™ performs for the ABAKiS™ software services, and includes the right to use the ABAKiS™ software services and support services for the program. The term “Users” means Your employees and any consultants, contractors and agents who require the use of the ABAKiS™ software services to perform services for You, and who are authorized by You to use the ABAKiS™ services. The term “Your Data” refers to all proprietary electronic data entered by You that resides in Your service environment. The term “Malicious Code” refers to any harmful or malicious code, content, files, scripts, agents or programs including, but not limited to, viruses, malware, worms, time bombs and Trojan horses. The term "Third-Party Applications" refers to online, Web-based applications and offline software products that are provided by third parties and interoperate with the ABAKiS™ software services. The term “Affiliate” refers to any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for the purposes of the definition of Affiliate, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
2. Rights Granted
Upon ABAKiS’s™ acceptance of this document, and for the duration of the subscription period or the term of this Agreement, whichever ends first, You have the nonexclusive, non-assignable, non sub-licensable worldwide limited right to use the ABAKiS™ software services solely for Your personal and internal business operations and subject to the terms of this Agreement. You may allow the Users to use the ABAKiS™ software services for this purpose and You are responsible for the User’s compliance with this Agreement.
You acknowledge that ABAKiS™ has no delivery obligation and will not ship copies of any components of the ABAKiS™ software services to You. You agree that You do not acquire under this Agreement any license to use the ABAKiS™ software services in excess of the scope or duration set out in this Agreement. Upon the end of this Agreement, Your right to access or use the ABAKiS™ software services will terminate.
3. Proprietary Rights
3.1 Reservation of Rights
Subject to the limited rights expressly granted under this Agreement, ABAKiS™ reserves all rights, title and interest in and to the ABAKiS™ software services and all software or other intellectual property rights of ABAKiS™ and its licensors therein. No rights or licenses are granted to You under this Agreement except the right to use the ABAKiS™ software services as expressly set forth in, and subject to, this Agreement.
3.2 Ownership of Your Data
As between ABAKiS™ and You, You retain all rights, title and interest in and to all of Your Data.
When you upload, submit or, store content to or through the ABAKiS™ software services, you give ABAKiS™ and its partners a worldwide license to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute such content as permissible by governing law. The rights you grant in this license are for the limited purpose of operating, promoting, and improving ABAKiS™ software services, and to develop new ones. This license continues even if you stop using ABAKiS™ software services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.
3.3 Your Suggestions
ABAKiS™ will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the ABAKiS™ software services any suggestions, enhancement requests, recommendations or other feedback provided by You, including any Users, related to the operation of, or modification or improvement to, the ABAKiS™ software services.
4. Free Services
If ABAKiS™ agrees in the Order Form to provide to You a limited free trial period, ABAKiS™ will make the ABAKiS™ software services available to You on a limited trial basis free of charge until the earlier of:
- the end of the free period or such date that ABAKiS™ notifies You that the free trial period is terminated, whichever first occurs; and
- the start date of any Purchased Services ordered by You.
Any data You enter into the ABAKiS™ software services, and any customizations made to the ABAKiS™ software services by or for You, during Your free period will be permanently lost unless You purchase a subscription to the ABAKiS™ software services, or export such data, before the end of the period. You acknowledge that You are solely responsible for exporting Your Data from the ABAKiS™ software services prior to the end of a free period. ABAKiS™ will not be responsible for any of Your Data that is lost as a result of Your failure to export it prior to the end of the free period.
NOTWITHSTANDING SECTION 10, DURING THE TRIAL PERIOD ABAKiS™ SOFTWARE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
5. Use of the ABAKiS™ Software Services
5.1 ABAKiS’s™ Responsibilities
- provide to You support for the ABAKiS™ software services;
- provide the software only in accordance with applicable laws and government regulations; and
- use commercially reasonable efforts to make the software available to You with the exception of:
- planned downtime (of which ABAKiS™ will give at least 24 hours notice and which ABAKiS™ will schedule to the extent practicable during the hours from 7 p.m. Pacific time to 3 a.m. Pacific time); or
- any unavailability caused by circumstances beyond ABAKiS’s™ reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving ABAKiS’s™ employees), or Internet service provider failures or delays.
5.2 Your Responsibilities
- use the ABAKiS™ software services only for Your personal and internal business purposes;
- be responsible for Users’ compliance with this Agreement;
- be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data; and
- use Your best efforts to prevent unauthorized access to or use of the ABAKiS™ software services by persons who are not Users, and notify ABAKiS™ promptly of any such unauthorized access or use.
You will not:
- make the ABAKiS™ software services available to anyone other than Users;
- sub-license, sell, resell, rent or lease the ABAKiS™ software services;
- use the ABAKiS™ software services to upload, store, transmit, email, post or publish in any manner whatsoever any of Your Data or other material for any purpose that may:
- menace or harass any person or cause damage or injury to any person or property;
- involve the publication of any material that is false, defamatory, harassing, pornographic or otherwise obscene;
- violate privacy rights or promote bigotry, racism, hatred or harm;
- constitute unsolicited commercial email, junk mail, spam or chain letters or otherwise offend the provisions of the Fighting Internet and Wireless Spam Act (Canada), the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (United States), or any similar legislation in other provinces, states, countries or territories;
- infringe the intellectual property or other proprietary rights of any person including, but not limited to, any copyright, trademarks, patents or trade secrets of any other person;
- reasonably injure ABAKiS’s™ reputation or goodwill; or
- otherwise violate any applicable laws or regulations;
- use the ABAKiS™ software services to store or transmit Malicious Code;
- interfere with or disrupt the integrity or performance of the ABAKiS™ software services or third-party data contained therein;
- attempt to gain unauthorized access to ABAKiS™ or ABAKiS’s™ software services or its other customers’ or licensors’ related systems or networks;
- make the programs or materials resulting from the ABAKiS™ software services available in any manner to any third party for use in the third party’s business operations;
- create derivative works based on the ABAKiS™ software services;
- copy, frame or mirror any part or content of the ABAKiS™ software services;
- remove or modify any program markings or any notice of ABAKiS’s™ or its licensors’ proprietary rights;
- reverse engineer the ABAKiS™ software services;
- access the ABAKiS™ software services in order to build a competitive product or service, or copy any features, functions or graphics of the ABAKiS™ software services; or
- send an email using the ABAKiS™ software services to an email address:
- for which You have received an opt-out request; or
- for which You have received notification that emails sent to such address are “undeliverable” after ten days of receiving such notice.
5.3 Usage Limitations
The ABAKiS™ software services may be subject to other limitations including, but not limited to; the storage space provided for Your use of the Services is limited to one gigabyte (GiB);
ABAKiS™ reserves the right to amend the usage limitations set out in this Section from time to time without providing notice to You.
6. Third-Party Applications
ABAKiS™ may offer for sale Third-Party Applications under Order Forms. Any acquisition by You of third party products or services including, but not limited to, Third Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third party provider, is solely between You and the applicable third party provider. Your right to use Third Party Applications is governed by the terms of the Third Party Application license agreement and, unless otherwise stated, not under this Agreement. ABAKiS™ does not warrant or support third-party products or services. You acknowledge that ABAKiS™ may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the ABAKiS™ software services. ABAKiS™ will not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers.
By virtue of this Agreement, the parties may have access to information that is confidential to one another (the “Confidential Information”). Confidential Information is limited to the terms and pricing under this Agreement, Your Data, and all information clearly identified as confidential at the time of disclosure. A party’s Confidential Information will not include information that:
- is or becomes a part of the public domain through no act or omission of the other party;
- was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
- is lawfully disclosed to the other party by a third party without restriction on the disclosure; or
- is independently developed by the other party.
Each party agrees to hold the other party’s Confidential Information in confidence during the term of this Agreement and for a period of three years thereafter. Each party agrees to disclose only information that is required for the performance of obligations under this Agreement. Nothing in this Section will prevent either party from disclosing the Confidential Information to a governmental entity as required by law.
8. Protection of Your Data
ABAKiS™ will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data.
ABAKiS™ will not:
- modify Your Data;
- disclose Your Data except as required by law;
- access Your Data except:
- to provide the ABAKiS™ software services;
- to collect performance metrics and other statistical information about the ABAKiS™ software services;
- to prevent or address service or technical problems; or
- at Your request in connection with customer support matters.
- provide access to your data to researchers and other medical professionals for the advancement of Autism research and treatment;
- protect the identities of your child and other team members by only providing the basic program and treatment data.
8.2 Security Breaches
Despite best efforts, no method of transmission over the Internet, or method of electronic storage, is perfectly secure. Therefore, we cannot guarantee absolute security. If ABAKiS™ learns of a security breach or potential security breach, we will make our best effort to notify the affected users electronically (via all email addresses available on our customer database) so that they can take appropriate protective steps. ABAKiS™ may also post a notice on the ABAKiS™ website if warranted
9. Warranties and Disclaimers
9.1 Limited Warranty
ABAKiS™ provides a limited warranty for the ABAKiS™ software services subject to the following limitations:
- this limited warranty applies only during the term of this Agreement
- any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last only during the Warranty Period;
- this limited warranty does not cover problems caused by accident, abuse or use of the ABAKiS™ software services in a manner inconsistent with this Agreement or resulting from events beyond ABAKiS’s™ reasonable control;
- this limited warranty does not apply to problems caused by the failure to meet minimum system requirements; and
- this limited warranty does not apply to downtime or other interruptions in access to the ABAKiS™ software services.
9.2 Disclaimer of Other Warranties
OTHER THAN THIS LIMITED WARRANTY, ABAKiS™ PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES. TO THE EXTENT NOT PROHIBITED BY LAW, ABAKiS™ DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT.
You will defend ABAKiS™, its officers, directors, employees, suppliers, agents, and assigns against any claims, liabilities, losses, costs or damages, including lawyer’s fees (“Claim”), related to or arising out of:
- Your breach of any term, condition or warranty in this Agreement;
- Your use or installation of any third party’s software;
- Your unauthorized use of any third party’s proprietary or confidential intellectual property or information including, but not limited to, patents, copyrights, licensed material or trade secrets; or
- Your use of the ABAKiS™ Software Services in a manner that contravenes any applicable law or regulation including, but not limited to, Your unauthorized or improper use of any individual’s personal information in contravention of any applicable privacy laws,
provided that ABAKiS™ gives You written notice of the Claim, gives You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases ABAKiS™ of all liability) and provides to You all reasonable assistance, at Your expense.
11. Limitation of Liability AND CHANGES
11.1 Limitation of Liability
NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, OR DATA USE. ABAKIS’S™ MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT, OR OTHERWISE, WILL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO ABAKiS™ FOR THE ABAKiS™ SOFTWARE SERVICES THAT IS SUBJECT TO THE CLAIM IN THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOUR AGAINST ABAKiS™ WILL BE REDUCED BY ANY REFUND OF CREDIT RECEIVED BY YOU UNDER THIS AGREEMENT AND ANY SUCH REFUND AND CREDIT WILL APPLY TOWARDS THE LIMITATION OF LIABILITY. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Notwithstanding anything else to the contrary in this Agreement, ABAKiS™ reserves the right at any time not to release or to discontinue release of any Services (and other ABAKiS™ software services, and to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the software and other ABAKiS™ software services.
12. Term and Termination
12.1 Term of Agreement
Unless terminated earlier in accordance with Section 13.3, this Agreement commences on the date You accept it or the date You accept an Order Form to which this Agreement applies, whichever is earlier, and continues until all User subscriptions granted to You by ABAKiS™ have expired or been terminated. If You elect to use the ABAKiS™ software services for a 15 day free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the 15 day free trial period.
12.2 Term of Purchased User Subscriptions
User subscriptions purchased by You commence on the start date specified in the applicable Order Form accepted by ABAKiS™ and continue for the subscription term specified in the Order Form. Except as otherwise specified in the applicable Order Form, all User subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year, whichever is shorter, unless either party gives the other written notice of non-renewal at least 60 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term will be at ABAKiS’s™ then current list price for the Purchased Services which will be made available to You by ABAKiS™ on request.
12.3 Termination by ABAKiS™
ABAKiS™ may terminate this Agreement, effective immediately and without liability of ABAKiS™:
- without notice if You breach any of the terms or conditions set out in Section 5.3;
- in addition to ABAKiS’s™ rights of termination under Subsection (a) above, upon 30 days written notice to You of a breach by You or any Users of the terms of this Agreement if such breach remains uncured at the expiration of such notice period;
- without notice if You become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or
- upon 90 days written notice to You for any other reason whatsoever.
12.4 Termination by You
You may terminate this Agreement:
upon 30 days written notice to ABAKiS™ of a breach by ABAKiS™ of the terms of this Agreement if such breach remains uncured at the expiration of such notice period; or
upon 30 days written notice to ABAKiS™ if ABAKiS™ becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or
12.5 Refund or Payment upon Termination
Upon termination in accordance with Section 13.3(d) or 13.4, ABAKiS™ will refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon termination under Section 13.3(a), 13.3(b) or 13.3(c), You acknowledge and agree that ABAKiS™ will not provide any refund to You and You will pay any unpaid fees covering the remainder of the term of the Order Form after the effective date of termination. In no event will any termination relieve You of the obligation to pay any fees payable to ABAKiS™ for the period prior to the effective date of termination.
12.6 Return of Your Data
Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, ABAKiS™ will make Your Data available to You for download. After such 30 day period, ABAKiS™ will have no obligation to maintain or provide any of Your Data and may thereafter, unless legally prohibited, delete all of Your Data in ABAKiS’s™ systems or otherwise in ABAKiS’s™ possession or control.
12.7 Surviving Provisions
Sections 3, 5.3, 7, 8, 10.2, 11, 12, 13.5, 13.6, 14 will survive any termination or expiration of this Agreement.
This Agreement may be amended at any time by mutual agreement of the parties in writing. Except as otherwise provided in Section 5.4, ABAKiS™ further reserves the right to make changes to other parts of this Agreement to reflect changes in or required by law or to reflect changes in business practices, provided that any amendments will only have prospective effect, by providing You with notice. Notice of such amendments will be provided to You in accordance with Section 14.8 and by posting notice of the amendments on the ABAKiS™ website at https://www.myabakis.com/eula.html. If You do not accept such amendments, You may terminate this Agreement at any time within the 60 day period following notice by ABAKiS™, by delivering written notice to ABAKiS™ of Your intention to terminate. If You do not deliver notice to ABAKiS terminating this Agreement within the 60 day time period, You will be deemed to have accepted the amendment.
ABAKiS™ may audit Your use of the ABAKiS™ software services and You will cooperate and provide ABAKiS™ with reasonable assistance and access to information, so long as ABAKiS™ gives You three days advance written notice. You agree to pay within 30 days of written notice any fees applicable to Your use of the ABAKiS™ software services in excess of Your rights under this Agreement. You agree that ABAKiS™ will not be responsible for any of Your costs incurred in cooperating with the audit.
13.3 Waiver of Jury Trial
Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
13.4 Press Releases
You acknowledge that ABAKiS™ may make reference to You and Your relationship to ABAKiS™ in press releases, advertising and promotional materials and You consent to any such reference.
The parties are independent contractors and are not agents, joint venturers, partners or employees of one another, and ABAKiS™ will not be obligated by any agreements or representations made by You to any person, nor will ABAKiS™ be obligated for any damages to any person caused by Your actions, failure to act, negligence or willful conduct.
This Agreement may not be assigned or sublicensed by You without the prior written approval of ABAKiS™. ABAKiS™ may subcontract or delegate the provision of any or all of the ABAKiS™ software services or otherwise assign its rights in this agreement at any time without Your consent.
13.7 Entire Agreement; Enforceability; Waiver
This Agreement and the applicable Order Form constitute the entire agreement between the parties relating to the subject matter of this Agreement and supersede or replace all prior or contemporaneous agreements or representations. The terms and conditions of this Agreement may only be amended under an amendment to this agreement signed by all parties. If any terms of this Agreement are found to be invalid or unenforceable, the remaining provisions will remain effective. No failure or delay by a party in exercising any right or power under this agreement will operate as a waiver of that right or power, and the single or partial exercise of a right or power under this Agreement will not preclude any other or future exercise of that or any other right or power.
Except as otherwise specified in this Agreement, all notices, permissions and approvals will be in writing and will be deemed to have been given upon: (i) personal delivery, (ii) the fifth business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (i) the first business day after sending by email to the email address set out in the Order Form (provided email will not be sufficient for notices of termination or an indemnifiable claim). Notice to You will be addressed to the system administrator designated by You under the Order Form, and in the case of billing notices, to the relevant billing contact designated by You. The address and contact person for any notices by You to ABAKiS™ will be to ABAKiS™ Solutions Inc., 1758 Laurier Ave., BC, Canada V3B 2C4, 604-945-3763.
13.9 Governing Jurisdiction.
This Agreement in all respects will be governed and interpreted in accordance with the laws of the Province of British Columbia, and the parties hereby irrevocably attorney exclusively to the Courts of the Province of British Columbia. This Agreement will not be governed by the conflict of law rules of any other jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.