End-User License Agreement
1. General Terms1.1This End-User License Agreement (“EULA”) is a legal agreement between You and Yaware Solutions, Canada. By downloading and installing the Software (defined below), you acknowledge being aware of this EULA. Utilisation of the Software is contingent on your agreeing to all the Terms and Conditions herein. 1.2This EULA governs your acquisition and use of Yaware Software Products and Services – Yaware.TimeTracker, Yaware.TimeWatcher, Yaware.TimeManager Basic, Yaware.TimeManager Full, Yaware.Service (“Software”) directly from Yaware Solutions, Canada, or indirectly through a Yaware Solutions, Canada, authorized reseller or distributor (a “Reseller”). 1.3Please read this EULA carefully before completing the installation process and using the Yaware Software. It provides a license to use the Software and contains warranty information and liability disclaimers. 1.4If you register for a free trial of the Yaware Software, this EULA will also govern that trial. By clicking “accept” or installing and/or using the Yaware Software, you are confirming your acceptance of the Software and agreeing to become bound by the terms of this EULA. 1.5If you are entering into this EULA on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority or if you do not agree with the terms and conditions of this EULA agreement, do not install or use the Software, and you must not accept this EULA agreement. 1.6This EULA shall apply only to the Software supplied by Yaware Solutions, Canada herewith regardless of whether other Software is referred to or described herein. The terms also apply to any Yaware Solutions, Canada updates, upgrades, supplements, Internet-based services, and support services for the Software, unless other terms accompany those items on delivery. If so, those terms apply.
2. Responsibilities of Yaware2.1 Yaware will host and maintain the Software on servers operated and maintained by or at the direction of Yaware. Yaware may delegate the performance of certain portions for Yaware Software Products and Services to third parties provided Yaware remains responsible to you for the delivery for Yaware Software Products and Services.
2.2Yaware shall provide technical support for Yaware Software Products and Services. Yaware shall not be obligated to provide to you any new release of any Software or module thereof, or other Software or services for which Yaware generally charges a separate fee.
3. YOUR RESPONSIBILITIES3.1You will cooperate in setting up the Software as reasonably requested by Yaware. 3.2You will be responsible for obtaining and maintaining at the your expense all the necessary computer hardware, Software , modems, connections to the Internet and other items required to access Yaware.TimeManager.
4. License Grant4.1Yaware Solutions, Canada hereby grants you a personal, non-transferable, non-exclusive licence to use the Software on your devices in accordance with the terms of this EULA agreement. 4.2You are permitted to load the Software (for example a PC, Laptop, Mac or Linux workstation (see supported distributions through Yaware’s web site)) under your control. You are responsible for ensuring your device meets the minimum requirements of the Yaware Software. 4.3You are not permitted to: 4.3.1Edit, alter, modify, adapt, translate or otherwise change the whole or any part of the Software nor permit the whole or any part of the Software to be combined with or become incorporated in any other Software, nor decompile, disassemble or reverse engineer the Software or attempt to do any such things. 4.3.2Reproduce, copy, distribute, resell or otherwise use the Software for any commercial purpose. 4.3.3Allow any third party to use the Software on behalf of or for the benefit of any third party. 4.3.4Use the Software in any way which breaches any applicable local, national or international law. 4.3.5Use the Software for any purpose that Yaware Solutions, Canada considers is a breach of this EULA agreement.
5. Payment/Taxes5.1License Fees. In consideration for the license granted by Yaware under this Agreement, you shall pay Yaware the license subscription fees in the amount set forth on the pricing page in accordance with the terms set forth therein. License Subscription Fees are subject to change upon the first day of each Renewal Term. License Subscription Fees are refundable under the conditions set forth in this EULA.
5.2Taxes. You shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Yaware’s net income. You agrees to indemnify, defend, and hold Yaware, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from your failure to report or pay any such taxes, duties or assessments.
5.3Payment Terms. All amounts payable to Yaware under this Agreement will be paid according to the pricing and payment terms, as we may update them from time to time. Yaware may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement. Overdue payments will be subject to interest at the rate of 1.5% per month, or the maximum allowable under applicable law, whichever is less.
6. LIMITED Software WARRANTY6.1Scope of Limited Warranty. Yaware warrants to you that during your term of use (as set by your up-to-date payment and utilization), the Software will perform substantially in accordance with the Documentation. The foregoing warranty shall not apply to performance issues for Yaware Software Products and Services (i) caused by factors outside of Yaware’s reasonable control; (ii) that result from any actions or inactions of you or any third parties; or (iii) that result from your utilization unintended by Yaware or the design and purpose for Yaware Software Products and Services, your equipment’s operating environment or your equipment, itself.
6.2Sole Remedy. Should the Software not perform or function as expressly warranted herein, Yaware shall use its commercially reasonable efforts to correct the nonconformities giving rise to such breach. The foregoing remedy is available only if you notify Yaware in writing of such non-conformity within fifteen (15) days of its discovery by you, and Yaware’s examination of the Software discloses that such non-conformity exists. The foregoing remedies shall be your sole and exclusive remedies and Yaware’s entire liability for any breach of the warranty set forth in Section 6.1.
6.3Disclaimer of Any Other Warranties. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THIS SECTION 9, YAWARE SOLUTIONS, CANADA, INC. MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED MATERIALS, YAWARE SOFTWARE, OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. YAWARE SOLUTIONS, CANADA, INC. SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE Software IS PROVIDED ON AN AS IS, AS AVAILABLE BASIS.
7. Intellectual Property and Ownership7.1Yaware Solutions, Canada shall at all times retain ownership of the Software as originally downloaded by you and all subsequent downloads of the Software by you. The Software (and the copyright, and other intellectual property rights of whatever nature in the Software, including any modifications made thereto) are and shall remain the property of Yaware Solutions, Canada. 7.2Yaware Solutions, Canada, reserves the right to grant licences to use the Software to third parties.
8. Termination8.1This EULA is effective from the date you download the Software and shall continue until terminated. You may terminate it at any time upon written notice to Yaware Solutions, Canada. 8.2It will also terminate immediately if you fail to comply with any term of this EULA agreement. Upon such termination, the licenses granted by this EULA agreement will immediately terminate and you agree to stop all access and use of the Software . The provisions that by their nature continue and survive will survive any termination of this EULA agreement.
9. LIMITATION ON DAMAGES9.1EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. EXCEPT FOR BREACH OF SECTION 5 OR SECTION 11 AND INDEMNIFICATION FOR THIRD-PARTY DAMAGES ARISING UNDER SECTION 10 OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE. 9.2MAXIMUM AGGREGATE LIABILITY. EXCEPT FOR BREACH OF SECTION 5 OR SECTION 11 AND INDEMNIFICATION LIABILITY ARISING UNDER SECTION 13 OF THIS AGREEMENT, THE MAXIMUM LIABILITY OF EITHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF PAYMENTS MADE UNDER THIS AGREEMENT IN THE ONE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY. you ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. INDEMNIFICATION10.1Indemnification. Each Party shall indemnify, defend and hold the other Party and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses arising from a claim that Yaware Forge (as to Yaware), or the you Data (as to you) violates any applicable statute, regulation, or law, or infringes any intellectual property right or other legal right of any third party (a “Claim”). This indemnity does not apply to, and Yaware will have no obligation to the you for, any infringement or misappropriation claim that arises from (i) modifications to Yaware Forge by anyone other than Yaware, (ii) modifications to the Yaware Forge based upon specifications furnished by the you, (iii) you’s use of the Yaware Forge other than as specified in this Agreement or in the applicable documentation, (iv) use of the Yaware Forge in conjunction with third-party Software , hardware or data other than that approved by Yaware, or (v) any combination of the foregoing. you shall indemnify, defend and hold Yaware and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses to the extent they arise from any Claim based on any of the factors in the foregoing sentence, and shall give Yaware all reasonable information and assistance regarding such claim. 10.2The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim; provided that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying Party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any Claim; provided, however, that (i) the indemnifying Party shall keep the indemnified Party informed of, and consult with the indemnified Party in connection with the progress of such litigation or settlement and (ii) the indemnifying Party shall not settle any such Claim in a manner that does not unconditionally release the indemnified Party without the indemnified Party’s written consent, not to be unreasonably withheld or delayed. 10.3In the event any portion of Yaware Forge is held or believed by Yaware, or any portion of the you Data is held or believed by the you, to infringe or misappropriate Intellectual Property Rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where Yaware Forge is used or accessed, then in addition to any other rights in this Section 13, Yaware (where the Infringing Materials are Yaware Forge) or you (where the Infringing Materials are the you Data) shall, at its sole expense and at its option: (i) obtain from such third party the right for the other party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (iii) upon mutual agreement with the other party, remove and disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate this Agreement. 10.4THIS SECTION 10 SETS FORTH EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION, AND EACH PARTY’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.
11. MISCELLANEOUS11.1Digital Signature Provision. You represent and warrant that the individual electronically agreeing to the terms of this Agreement is empowered to agree to this Agreement on behalf of you. You further agree that by clicking the “AGREE” check-box constitutes an electronic signature as defined by any law in effect in Canada and that the Agreement is completely valid, has legal effect, is enforceable, and is binding on, and non refutable by you. 11.2Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, Yaware may, without consent from you, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume all rights and obligations under this Agreement. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement. 11.3Entire Agreement. This Agreement, and any exhibits and amendments thereto, constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended without the prior written consent of both Parties. 11.4Import and Export Requirements. You acknowledge and agree that the Licensed Materials are subject to export control laws and regulations. You may not download or otherwise export or re-export the Licensed Materials or any underlying information or technology except in full compliance with all applicable laws and regulations, in particular, but without limitation, Canadian export control laws. None of the Licensed Materials or any underlying information or technology may be downloaded or otherwise exported or re-exported into, or to a national or resident of, any country to which Canada has embargoed goods. You hereby agree to the foregoing and warrant that you are not located in, or under the control of, or a national or resident of any such country or on any such list. 11.5Force Majeure. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance. 11.6Relationship of Parties. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind. 11.7Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect. 11.8Waiver. No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant. 11.9Headings. The headings of the articles and paragraphs contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.
12. Governing Law12.1This EULA agreement, and any dispute arising out of or in connection with this EULA agreement, shall be governed by and construed in accordance with the laws of the Province of Quebec and of Canada. 12.2LES PARTIES ONT CONSENTIS À CE QUE CE CONTRAT SOIT RÉDIGÉ EN ANGLAIS.
THE PARTIES HAVE CONSENTED TO DRAFTING THIS CONTRACT IN ENGLISH.