SOFTWARE SUBSCRIPTION AGREEMENT – STOREDYNAMICS
This Software Subscription Agreement (“Agreement”) is made by and between AM/PM Systems Ltd. (“AM/PM”) and the Customer referenced below, as of the Effective Date stated in Schedule “A”. NOW THEREFORE, in consideration of the mutual promises herein contained, the receipt and sufficiency of which is hereby acknowledged, AM/PM and Customer agree as follows:
OFFER OF LICENSE
AM/PM offers license for the StoreDynamics software system (“StoreDynamics”) to end-user customers on a subscription basis. AM/PM has agreed to provide and Customer has agreed to use and pay for StoreDynamics on subscription basis subject to the terms and conditions contained herein.
SOFTWARE SUBSCRIPTION
AM/PM hereby grants to Customer a non-exclusive, non-transferable right and license to use StoreDynamics during the Subscription Term and per the subscription plan selected in Schedule “A”. Customer is responsible for all actions taken under its subscription account credentials, regardless of whether such actions are taken by Customer, its employees or a third party. AM/PM is not liable for any loss or damage arising from any unauthorized use of Customer’s account.
TERM AND TERMINATION
The Subscription Term shall commence on the Effective Date and shall continue until either party provides thirty (30) days written notice of cancellation and termination of Agreement; or as otherwise terminated in accordance with this Agreement. Upon termination of this Agreement for any reason, including but not limited to default, the software subscription and license therein granted to Customer shall immediately terminate, and the Customer shall discontinue use of StoreDynamics. For the removal of doubt, at the end of the Subscription Term and upon termination of this Agreement for any reason, AM/PM may remotely deactivate or otherwise terminate the use of StoreDynamics by customer.
SUBSCRIPTION FEE
Customer shall pay the Subscription Fee in the amount as stated in Schedule “A”. The amount of the Subscription Fee does not include any applicable taxes. Customer is responsible for any and all applicable taxes. AM/PM shall be entitled to increase the Subscription Fees with 30 days' prior notice to Customer and this Agreement shall be deemed to have been amended accordingly. Subscription Fee only applies to and includes the end-user license for use of StoreDynamics and features as listed in the selected subscription plan in Schedule “A”. All other equipment, services and labour is billable.
PAYMENT
Upon execution of this Agreement, Customer must pay AM/PM the sum equivalent to the first and last month of the Subscription Fee. Thereafter payment for the Subscription Fee and any changes thereof will be in the form of an authorized automatic payment. Customer must sign a Pre-Authorized Debit form and shall take all necessary steps to authorize automatic payment of the Subscription Fee to AM/PM. By agreeing to this Agreement, Customer hereby authorizes AM/PM to automatically charge said method of payment for all Subscription Fees during the Subscription Term. All payments made by Customer to AM/PM are non-refundable.
MAINTENANCE AND SUPPORT
During the Subscription Term, AM/PM will provide Customer with remote software support for StoreDynamics according to the coverage described Schedule “A” and in accordance with AM/PM's support procedures in effect at the time that StoreDynamics is provided. AM/PM may amend support procedures in its sole and absolute discretion from time to time. AM/PM may from time to time provide patches and fixes for installed version of StoreDynamics at no additional cost to Customer. Provided, however, said maintenance shall not include any major releases of new versions of the StoreDynamics, additional functionality, or custom programming, which AM/PM, at its discretion, may provide at an additional cost. Training is not included in the Subscription Fee support coverage. Training is available at additional cost.
DEFAULT
If for any reason payment is declined or otherwise not received by AM/PM, Customer shall pay the applicable Subscription Fee, together with a $50.00 late fee, to AM/PM within 48 hours of written notice from AM/PM to Customer. Customer shall be in default of this Agreement if Customer fails to make any payment when due and fails to cure said default within 48 hours after receipt of written notice from AM/PM. Further, Customer may be subject to a re-activation fee if Customer requests to continue the Subscription after it has been in default. If Customer fails to provide payment as stated and remains in default, AM/PM, in its sole discretion, may terminate this Agreement immediately for cause, revoke the software subscription and deactivate StoreDynamics without further notice to Customer.
ASSIGNMENT
Customer shall not, without the prior written consent of AM/PM, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
PROPRIETARY RIGHTS
Customer acknowledges and agrees that AM/PM and/or its licensors own all intellectual property rights in StoreDynamics. Except as expressly stated herein, this Agreement does not grant Customer any rights to, or in, patents, copyrights, database construction, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of StoreDynamics or the Documentation. AM/PM confirms that it has all the rights in relation to StoreDynamics that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement. Customer shall not attempt, or directly or indirectly allow any person to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of StoreDynamics in any form or media or by any means. The proprietary rights stated herein shall survive termination of this Agreement. Except as expressly and specifically provided in this Agreement, Customer assumes sole responsibility for results obtained from the use of StoreDynamics and for conclusions drawn from such use. AM/PM shall have no liability for any damage caused by errors or omissions in any information, instructions, support or scripts provided to AM/PM by Customer in connection with StoreDynamics, or any actions taken by AM/PM at Customer's direction.
CUSTOMER DATA
Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of data created, used and stored or otherwise used in conjunction with Customer’s operation of StoreDynamics, including but not limited to the allocation of applicable taxes and the creation of data, or in the event of data loss, any recreation of data. Customer understands and agrees that AM/PM has no control over the content of the data. Customer is responsible for taking its own steps to maintain appropriate security, protection and back-up of its data and software, including the use of appropriate back-up and archiving. Customer remains responsible for properly handling and processing notices regarding personal data Customer’s clients. Customer understands and agrees that AM/PM is not responsible for any loss or corruption of Customer data or other software.
PCI
With regards to the Payment Card Industry Digital Security Standard (PCI-DSS) Customer, referred to as the “Merchant” in the PCI-DSS, is ultimately responsible for protecting credit card information. AM/PM IS NOT RESPONSIBLE FOR ENSURING THAT CUSTOMER’S BUSINESS ADHERES TO PCI OR ANY OTHER COMPLIANCY. CUSTOMER ACKNOWLEDGES THAT CREDIT CARD PROVIDERS, BANKS, AND CREDIT CARD PROCESSING COMPANIES IMPLEMENT AND REQUIRE SPECIFIC PROCEDURES AND POLICIES IN CONJUNCTION WITH THEIR CARDS AND SERVICES. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL POLICIES, RULES, REGULATIONS, AND PROCEDURES REQUIRED BY THE CREDIT CARD COMPANIES, BANKS, AND/OR PROCESSORS IT ELECTS TO ACCEPT OR UTILIZE.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISIONS AND AGREEMENTS BETWEEN AM/PM AND CUSTOMER, OR ANY STATUTORY PROVISIONS, UNDER NO CIRCUMSTANCES IS AM/PM LIABLE TO CUSTOMER, REGARDLESS OF WHETHER AM/PM WAS ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (hereinafter “EXCLUDED DAMAGES”), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION. EXCLUDED DAMAGES INCLUDE BUT ARE NOT LIMITED TO DAMAGES FOR: BUSINESS AND/OR PERSONAL LOSSES (ARISING FROM LOSS OF USE, GOODWILL, DATA OR PROFITS); OR ERRORS AND OMISSIONS (ARISING FROM ACTUAL OR ALLEGED ERRORS, STATEMENTS, ACTS, OMISSIONS, ASSUMPTIONS, NEGLECT, OR BREACH OF DUTY); OR PROFESSIONAL SERVICES (ARISING FROM AN ERROR, OMISSION, OR FAILURE TO DELIVER); OR TAXES (ARISING FROM ERRORS IN TAX RATES, TAX COLLECTION, SUBMISSION, CALCULATION); OR PAYMENT TRANSACTION ERRORS OR OMISSIONS (ARISING FROM DEBIT, CREDIT, GIFT CARD, INTERAC OR PAYMENT DEVICE(S)); OR COMPLIANCE WITH PAYMENT CARD INDUSTRY (PCI) AND ANY OTHER POLICIES, RULES, REGULATIONS, AND PROCEDURES REQUIRED BY CREDIT CARD COMPANIES, BANKS, INTERAC, PROCESSORS OR OTHER PAYMENT PROCESSING RELATED ENTITY; OR GENERAL COMPUTER SYSTEM MALFUNCTION AND INTERFERENCES (ARISING FROM EQUIPMENT OR SOFTWARE FAILURE, MALFUNCTION, ANY FORM OF SYSTEM INTRUSIONS, SYSTEM AND NETWORK ACCESS SECURITY ISSUES AND DEFICIENCIES, VIRUSES, WORMS, TROJAN HORSES, OPERATING SYSTEM ERRORS, DATABASE ERRORS OR CORRUPTION, UPDATES, THIRD PARTY SOFTWARE APPLICATIONS OR HARDWARE, NETWORK, CONNECTIVITY, ISP, DNS CHANGES, ELECTRONIC COMMERCE SYSTEM PROVIDERS AND TELECOMMUNICATION CARRIERS, POWER FLUCTUATIONS AND OUTAGES, EQUIPMENT OBSOLESCENCE); OR ANY OTHER COMMERCIAL OR PERSONAL DAMAGES OR LOSS. AM/PM’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES TO CUSTOMER SHALL BE LIMITED TO ACTUAL, DIRECT AND OUT-OF-POCKET MONEY DAMAGES SUFFERED OR INCURRED BY CUSTOMER IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF THE EQUIPMENT OR SERVICES SUBJECT TO CLAIM OR DISPUTE, REGARDLESS OF THE CHARACTERIZATION OF SUCH ACTION, OR FIVE THOUSAND DOLLARS ($5,000.00), WHICHEVER IS LESS.
DISCLAIMER OF WARRANTIES
AM/PM MAKES NO GUARANTIES EXPRESS, IMPLIED OR STATUTORY IN CONNECTION WITH EQUIPMENT, SOFTWARE APPLICATIONS AND SERVICES AND WITHOUT LIMITING THE FOREGOING ALL EQUIPMENT, SOFTWARE AND SERVICES PROVIDED BY AM/PM ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ACCURACY. CUSTOMER WILL MAINTAIN ADEQUATE INSURANCE PROTECTION COVERING ANY POTENTIAL DAMAGES AND WAIVES ANY CLAIM AGAINST AM/PM TO THE EXTENT IT IS REIMBURSED BY THE INSURANCE CARRIER.
JURISDICTION AND LIMITATION OF ACTION
This Agreement will be governed by and construed in accordance with the laws of Alberta as applied to agreements entered into and performed within Alberta between Alberta residents, and the parties exclusively attorn to that jurisdiction. No action, regardless of the characterization of such action, may be brought by customer more than one (1) year after the cause of the action that has arisen.
LANGUAGE
The parties acknowledge that they have requested and are satisfied that the foregoing be drawn up in English. Les parties aux présentes reconnaissent qu’elles ont exigé que ce qui précède soit rédigé en anglais et s’en déclarent satisfaites.