User License Agreement

IMPORTANT! PLEASE READ CAREFULLY: This User License Agreement ("ULA") is a legal agreement between the user (“You”) and 80/20 Solutions Inc. (“80/20”). This ULA specifies the terms under which You may (i) use 80/20’s on-demand software platform, best-practices solutions templates (known as Ready-Go Templates^TM), related explanatory materials or documentation and any upgrades, modified versions or updates licensed to You by 80/20 (hereinafter the “Platform”), under this Agreement or any other agreement; and (ii) access any 80/20 server or other computer hardware containing the Platform. Use of the Platform and other services are offered to You on the condition that You accept the terms and conditions in this ULA as is without modification. If You do not accept them or cannot comply with all of the terms of this ULA, then You have no license to use the Platform or services or otherwise access 80/20’s servers, and You must henceforth cease and desist from such use or access. 80/20 reserves the right to unilaterally amend any term or condition of this ULA or change any service or function at any time without notice. If 80/20 makes a material change to these terms and conditions then it will provide notice on its website welcome page. It is Your responsibility to periodically check 80/20’s website for amendments to this ULA.

For the purposes of this ULA, and unless otherwise indicated, the Platform is defined to include the object code for the software system and all associated printed materials, “online” or electronic documentation, and any physical media on which any of the foregoing is reproduced or distributed. The Platform is protected by international copyright laws and other international intellectual property laws and treaties. The Platform is licensed to You, but not sold.

1. GRANT OF LICENSE

Platform - Subject to the terms of this ULA, 80/20 grants to You a non-exclusive, non-transferable, limited license and right to use 80/20’s Platform in object code form, subject to full and complete payment of all Fees when due to 80/20, as defined below. Details of the Platform and functionality are available on 80/20’s website and or any product documentation presented to you. 80/20 reserves the right to modify the Platform or source code contained therein for any purpose at any time at its sole discretion. You may not decompile, reverse engineer or otherwise attempt to discover any trade secret contained in the Platform. You must comply with all applicable laws regarding use of the Platform. The license grants set forth in this agreement will terminate automatically if you engage in any activity in violation of Section 5 herein or of any applicable law.
On-Demand Server Access - 80/20 grants to You a non-exclusive, non-transferable, limited license and right to access the Platform and use authentication services, communication services, web services and or other services, available through a password-protected user account accessible on one or more of 80/20’s servers during the term of this agreement (the “Services”). You may not permit others to access or use the Platform or Services, unless that person is registered with 80/20 or otherwise authorized for such use pursuant to Your Subscription Services Agreement with 80/20 or your membership in an 80/20 partner program. You may not create derivative works of or integrate the Platform or Services into any other server or commercial or other offering without the prior written consent of 80/20 .

2. FEES – You agree to pay all Subscription and other fees (the “Fees”) when due as mutually agreed in your Subscription Services Agreement with 80/20 as it exists from time to time. You are solely responsible for all charges, fees, duties, taxes and assessments arising out of any use of 80/20’s Platform or Services by You or anyone else using your account. 80/20 reserves the right to modify the Fees from time to time, provided that such new Fee rates shall only take effect upon reasonable notice prior to the anniversary of any renewal period. 80/20 reserves the right to disable Your access to 80/20 servers and the Platform in the event of breach by you of this paragraph.

3. INTELLECTUAL PROPERTY

80/20 and/or its licensors (or successors and assignees) retain all title to, ownership of, and all rights and interest in, the Platform and the Services and related intellectual property. All right, title and interest, including, but not limited to, patents, trademarks or copyrights, in and to the Platform and any documentation, manuals or copies thereof, are owned by 80/20 or its suppliers. You acknowledge and agree that the Platform contains proprietary and confidential information of 80/20 and or its licensors. You agree to use best efforts to protect the confidentiality and proprietary nature of the Platform. 80/20 reserves the right to alter features, capabilities, functions, licensing terms, release dates, general availability or any other characteristics of the Platform or Services at any time, as 80/20 in its sole and absolute discretion sees fit. Data derived from the application of the Services hereunder, including without limitation any log files, audit histories, aggregate transaction or trend data, and the split or inherent anonymous portion of all data records (including without limitation, behavioral pattern data as it relates to consumer activity through the platform), is the sole property of 80/20. All rights not expressly granted in this ULA are reserved by 80/20.
All title and intellectual property rights in and to content which is not owned by 80/20 and which may be accessed through use of the Platform is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. You own the intellectual property rights to any content or property that You or Your customers (end users) input to the Platform and otherwise provide under this Agreement or any partner agreement. 80/20 acknowledges that all personally identifiable information regarding Your customers and users is Your confidential information. This ULA grants You no rights to use any content owned by 3^rd parties to this agreement (ie. not owned by You or 80/20).

4. TERM AND TERMINATION - This agreement shall become effective upon acceptance of this ULA (coinciding with your first use of the Platform or Services or as either are amended or updated). Your acceptance of this agreement will be automatically logged on 80/20 servers upon your first use of the Platform. If You comply with all of the terms and conditions of this ULA, you may continue to use the Platform until such time that: (i) you fail to make payment in accordance with Section 2 herein; or (ii) 80/20 elects to terminate your use of the Platform and/or Services, which it may do at any time with or without cause. However, this ULA will automatically terminate without further notice by 80/20 to You upon Your breach of any term or condition contained herein, including without limitation a breach of Section 3 and your account will be suspended. Upon notification of such termination, you must immediately cease all use of the Platform. Termination is not 80/20’s exclusive remedy, and all other remedies, including without limitation injunctive relief, will be available to 80/20 whether or not this ULA is terminated. In the event of 80/20’s unilateral termination of your account for breach, you must contact 80/20 by phone to arrange to remove Your materials or Content that belong to You within twenty (20) business days, after which your Content will be permanently deleted without possibility of recovery.

5. USE – Use of the Platform is provided to assist You with the operation of Your business. Your right to use the Platform is limited to You and any authorized users, in accordance with this ULA and the relevant subscription level, Solutions Templates and support package which You have chosen by Subscription Services Agreement or partner program within which You are a member. You are solely responsible for Your content, Your customer’s content and Your Platform account information. 80/20 reserves the right, but is not obligated, to monitor or to review materials posted on any websites or web pages that You control or to monitor Your compliance with this Agreement. 80/20 reserves the right in its sole discretion to edit, refuse to post or remove any information or materials which violate these terms in whole or in part, without notice at any time.

You may not use the Platform or Services to do any of the following:

You may not use a name in connection with operating the Platform that is confusing or misleading, contravenes the intellectual property or other rights of a third party, or otherwise impersonate or deceive anyone with respect to Your identity;
You may not restrict or inhibit any other user from using and enjoying such user's rights in the Platform or other Services;
You may not interfere with or disrupt 80/20’s network or servers or any network appliance connected to such;
You may not rent, lease, license, grant a security interest in, or otherwise transfer or sublicense Your rights hereunder to any third party, without the express written permission of 80/20 – such permission shall be at 80/20’s sole discretion;
You may not defame, libel, slander, impersonate, abuse, harass, threaten, invade the privacy of or otherwise violate or infringe the legal rights (including the rights of privacy and publicity) of any other person, company or organization by using the Platform or any other 80/20 Services, whether or not that person, company or organization is an 80/20 customer or Platform user or not;
You may not conduct, promote or forward illegal business contests, pyramid schemes, chain letters, unsolicited or unauthorized advertising, promotional materials, unsolicited e-mail (including without limitation "spamming") or multi-level or illegal marketing campaigns;
You may not harm minors in any way;
You may not publish, post, distribute, disseminate, advertise or link to any: (i) content, site, topic, name, material or information which is illegal, inappropriate, profane, defamatory, libelous, slanderous, infringing, obscene, indecent, or which contains nudity or adult content; (ii) software, content or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity, or other proprietary rights, unless You own, or control such rights or have received all necessary consents for Your publication, distribution, or linking of such software and other materials; (iii) software, content or other material that contains viruses, worms, corrupted files, cracks or that may or are intended to damage the operation of or render inoperable another's computer, hardware, software, security measures or system or other programs written to defeat the security measures of any computer, system or programs; (iv) software, content, other material or Web site that constitutes "hate speech", whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group;
You may not sell, offer to sell, distribute, promote, facilitate, disseminate or link to any sites for marketing, sales, promotion, facilitation or distribution of: firearms; explosives; ammunition; illegal gambling (including gambling in connection with sporting events); food that is not packaged or does not comply with all applicable laws for sale to consumers by commercial merchants; illicit drugs, pharmaceuticals and controlled substances; counterfeit, pirated or stolen goods; any goods or services that infringe or otherwise violate a third party's rights including copyright, patent, trademark, or rights of publicity or privacy; goods that are considered indecent, obscene or pornographic; Nazi memorabilia; registered or unregistered securities; goods or services that You cannot legally sell; goods which are misrepresented or which do not in fact exist; fraudulent goods; goods, services or activities that if sold via any 80/20 Platform or Services or Your website would cause 80/20 to violate any law, statute or regulation; or any other illegal activity;
You may not harvest or otherwise collect information about third parties, including e-mail addresses, without the express consent of such third parties ; and
You may not violate any laws or regulations, including without limitation the CAN-SPAM Act of 2003 in the U.S., PIPEDA, Bill S-220 and the proposed Bill C-27 in Canada .

6. WARRANTIES - TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR NEEDS. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION OR AGAINST INFRINGMENT. COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE FROM DEFECTS, THAT ITS USE WILL BE UNITERRUPTED, THAT YOUR USE OF THE SOFTWARE WILL BE ERROR-FREE OR THAT YOU WILL OBTAIN SATISFACTORY RESULTS. COMPANY MAKES NO WARRANTY AS TO THE ACCURACY OF THE SOFTWARE OR THE RESULTS PRODUCED BY THE SOFTWARE. COMPANY IS NOT RESPONSIBLE, AND WILL HAVE NO LIABILITY FOR, HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSON OTHER THAN COMPANY. YOU EXPRESSLY ACKNOWLEDGE THAT 80/20 DOES NOT CREATE, CONTROL OR ENDORSE ANY DATA, INFORMATION, OR MATERIALS PROCESSED BY THE MCC. EXCEPT FOR ANY WARRANTIES EXPRESSLY STATED IN THIS ULA, THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE OR AS TO THE SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY OF THE SOFTWARE REMAINS WITH YOU.

7. SURVIVAL: Notwithstanding any termination of this Agreement for any reason whatsoever, the provisions of sections 3, 4, 6, 8, 9, 10 and any other provisions of this Agreement necessary to give efficacy thereto shall continue in full force and effect following any such termination.

8. LIMITATION OF LIABILITY - 80/20 is not liable whatsoever for any violations of Section 5 herein. 80/20 is not liable for any actions or inactions of users that You authorize to execute Your programs on the Platform. In no event shall 80/20 be liable to You (whether in contract, tort or otherwise) for amounts exceeding the aggregate amount of Fees actually received by 80/20 from You and earned by 80/20 within the previous six (6) months from the date of claim. To the maximum extent permitted by applicable law, 80/20 shall not be liable to You whatsoever for any special, incidental, direct, indirect, or consequential damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, corruption or loss of data, cost of procurement of substitute goods, services, or technology) relating to the Platform, Solutions Templates or Support Services, even if 80/20 has been advised of the possibility of such damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You.

9. EXPORT RESTRICTIONS - You represent and warrant that you are not a national or resident of any country subject to U.S. export restrictions. You agree that You will not export or re-export, or allow the export or re-export of, the Platform or any technology or information contained therein, or any direct product thereof, to any country, person, entity or end user subject to U.S. export restrictions. Restricted countries currently include, but are not necessarily limited to, Cuba, Iran, Iraq, Libya, North Korea, Serbia, and Sudan. You warrant and represent that neither the U.S. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Your export privileges. You agree to comply with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority. You agree not to export or re-export, or allow the export or re-export of the Platform or any technology or information contained therein, or any direct product thereof, from the country in which you have installed and are using the Platform in violation of any such laws, restrictions, or regulations.

10. 3RD PARTY RELATIONSHIPS - 8020 Solutions, may, at times, use 3rd party providers/suppliers to deliver part or all of a specific capability offered as part of our overall solutions offering to our clients. It is understood, and agreed to by, our current, past, and potential, clients that no current client, past client, or potential client, may deal directly with the 3rd Party provider/supplier, if, and only if, the provider/supplier was introduced to the current client, past client, or potential client, by 8020 Solutions and / or if the purpose and / or outcome of using the 3rd party provider/supplier directly or indirectly circumvents and / or replaces and /or duplicates and /or competes with, and of the capabilities and / or solution offerings that 8020 Solutions provides. This term is perpetual and anyone failing to abide by this agrees to compensate 8020 Solutions for the full value of the service that the 3rd party is providing the current client, past client, or potential client, at the full rate that 8020 Solutions charges for said service / solution.

11. GENERAL:

Definitions: All definitions, titles and terms found in this Agreement shall have the same meaning and tense as in all referenced Agreements, Schedules and Project Worksheets. Wherever the masculine, feminine, or neuter gender is used, it will be construed as including all genders and wherever the singular is used, it will be deemed to include the plural and vice versa, where the context so requires.
Arbitration: In the event that any disagreement arises between 80/20 and You with reference to this Agreement, use of the Platform or other Services, or any matter arising hereunder and upon which the parties cannot agree, then every such disagreement shall be referred to binding arbitration pursuant to and in accordance with the provisions of The Ontario Arbitration Act 1991, as amended. All matters in dispute under this Agreement shall be referred to the arbitration by a single arbitrator. If the parties cannot agree upon one arbitrator, then arbitration shall be by three (3) arbitrators, one to be appointed by each party and a third to be chosen by the two (2) first named, before they enter upon the business of arbitration. The award and determination of such arbitrator or arbitrators, or any two (2) of such three (3) arbitrators, shall be final and binding upon the parties hereto and their respective heirs, executors, administrators and assigns. There shall be no right of appeal. The prevailing party shall be entitled to all reasonable costs and legal fees.
Independence: You and 80/20 both agree that you are independent with respect to the other and that unless otherwise agreed to writing, this Agreement and any related documents do NOT create an employment relationship, partnership or joint venture between the parties or any of their employees or agents. Neither party is the agent of the other nor has the authority to bind the other, to incur any liability or otherwise act on the behalf of the other, or to direct the employees of the other, unless otherwise specifically authorized to do so in a separate writing.
Force Majeure: 80/20 shall in no way be liable for any failure to perform or breach of this Agreement, in whole or in part, by reason of Force Majeure, including without limitation an act of God, strike, walkout, public enemy, war, civil commotion, riots, judicial or governmental order, other requirement of law or any other cause beyond the reasonable control of 80/20.
Invalidity of Provision: Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of the prohibition or unenforceable without invalidating the remaining provisions and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. For any provision so severed there will be deemed substituted a like provision to accomplish the intent of the parties as closely as possible to the provision as drafted, as determined by any court or arbitrator having jurisdiction over any relevant proceedings, to the extent permitted by the applicable law.
No Assignment; Binding Effect: You agree not to assign or transfer this Agreement, or any duties, rights, or responsibilities under it, without prior written consent from 80/20. This Agreement will be binding upon, and will inure to the benefit of the parties and their respective successor entities. Notwithstanding anything herein or otherwise to the contrary, 80/20 may assign its rights and obligations to any third party in connection with a merger, acquisition, sale of all or substantially all of its assets, or any other corporate reorganization .
Entire Agreement; Waiver; Amendments: This Agreement constitutes the entire agreement between 80/20 and You pertaining to the subject matter thereof and supersedes all prior and contemporaneous oral and written agreements. There are no warranties, conditions, or representations (including any that may be implied by statute) and there are no agreements in connection with such subject matter except as specifically set forth or referred to herein. No reliance is placed on any warranty, representation, opinion, advice or assertion of fact made by You or Your directors, officers, employees or agents, except to the extent that the same has been reduced to writing and included as a term of this Agreement. Accordingly, there will be no liability, either in tort, or in contract, assessed in relation to any such warranty, representation, opinion, advice or assertion of fact, except to the extent aforesaid. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof or constitute any form of estoppels. All amendments to this agreement must be made in writing signed by both You and 80/20.
Notices: Any notice to be given hereunder shall be deemed to have been duly given if reduced to writing, signed by or on behalf of the party giving such notice and delivered by hand, mailed by prepaid registered mail or transmitted by fax and addressed to the address or fax number as any party hereto may have specified in writing and given to the other party. Any notice given by registered mail shall be deemed to have been received by the parties to whom the same is addressed on the fifth (5^th) business day following the day upon which such notice has been deposited in a post office with postage and cost of registration prepaid. Any notice given by hand or by fax shall be deemed to have been received by the party to whom it is so delivered on the following business day.
Governing Law: This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to conflict or choice of laws provisions. The parties agree that any arbitration between the parties will take place in Ontario and You hereby consent to personal jurisdiction and venue in Ontario.

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