THIS AGREEMENT will be effective as of October 1, 2020 (“Effective Date”) by and between Belca Soft Corporation (“BelcaSoft”) and all organizations (“Licensee” or “Client”) having online access to riger® products and Services described below.
WHEREAS BelcaSoft is engaged in the business of providing online access to and use of certain services as described herein;
WHEREAS this Agreement and any mutually negotiated, separately executed Services Schedule set forth the terms and conditions under which the Parties agree that Licensee may access and use BelcaSoft’s Services specifically identified on a Services Schedule entered into by the Parties;
NOW THEREFORE in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency being mutually acknowledged by the parties, the parties hereby agree as follows:
- “Authorized User” means an individual who is designated by the Licensee to access and use the Services pursuant to this Agreement.
- “Fees” means those fees payable by Licensee for use of Services as further described in a Services Schedule.
- “Services” means services provided by BelcaSoft in accordance with this agreement and a Services Schedule.
- “SOW” means a written description of the Services and terms agreed upon by the parties in such form as may be approved by the parties.
2. Schedule. The following Schedule annexed hereto and incorporated by reference and deemed to a part thereof:
Schedule “A” – Services Schedule.
3. Grant of License. Subject to the terms and conditions of this Agreement, BelcaSoft grants Licensee a non-sublicensable, non-transferable, non-exclusive, fully revocable license to access and use riger® solely for internal use and operation upon the terms and conditions contained in this agreement. Licensee may use and access riger® according to the license level as outlined in Exhibit. For purposes of this agreement, “use” of riger® means accessing riger® over a computer and mobile network.
4. Modifications and Proprietary rights. Subject to the rights expressly granted hereunder to Licensee, BelcaSoft shall retain all right, title and interest in and to the Services, and all modifications and additions thereto, including all related Intellectual Property Rights, except as may be expressly set out in a Services Schedule. No rights are granted to Licensee hereunder other than as expressly set forth herein. BelcaSoft’s Intellectual Property shall be deemed to mean and include: (a) the Software, business processes and analytics technologies of BelcaSoft, including without limitation; any algorithms, analyses, documentation, formats, formulas, inventions, know-how, methodologies, processes, tools, trade secrets, and products, and (b) any and all derivative works, enhancements, or other modifications to any of the above. BelcaSoft’s Intellectual Property shall not include any Licensee Intellectual Property or Licensee Data. The parties acknowledge and agree that BelcaSoft’s business model relies upon continuous improvements of BelcaSoft’s Intellectual Property resulting from the analytical and developmental services that BelcaSoft provides to all of its current and future customers, including Licensee, and that BelcaSoft shall have the right to integrate the algorithms, analyses, documentation, formats, formulas, inventions, know-how, methodologies, processes and tools developed by BelcaSoft pursuant to this Agreement and/or any Services Schedule or Order Form entered into by the Parties pursuant to this Agreement, into BelcaSoft’s product and service offerings, without Licensee’s having any rights therein.
5. Restrictions. The license is granted solely to the Licensee, and not to any parent, subsidiary, or affiliate of the Licensee. All rights not expressly granted hereunder are reserved to BelcaSoft. The license does not include (b) derivative products developed by BelcaSoft or anyone else to whom BelcaSoft may license riger®, or (c) a license or transfer of any intellectual property rights owned or controlled by BelcaSoft or any BelcaSoft affiliate, subsidiary, or parent. The Licensee shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from, or any internal data files generated by, riger®, rent, lease or loan riger®, or use riger® in any manner that constitutes a breach of this agreement or violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Licensee shall use commercially reasonable efforts to ensure that all Authorized Users comply with the terms and conditions of this Agreement including, without limitation, with Licensee’s obligations set forth in this Agreement.
6. Ownership. BelcaSoft owns and shall retain all rights, title, and interest in and to riger®, any updates or maintenance releases, and any related media, online or electronic documentation, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights thereto. riger® is protected by the copyright laws of Canada and USA, international copyright treaties and conventions, and other laws, and all rights are reserved.
- Grant of Privilege to BelcaSoft. Licensee exclusively owns all rights in and to information it stores on riger® (“Information”). BelcaSoft needs a limited privilege from the Licensee to use (i.e., display, perform, and distribute) to make riger® information available to Licensee. By providing information, Licensee grants BelcaSoft a limited, perpetual, irrevocable, non-exclusive, fully paid, royalty-free, sub-licensable, transferable, and worldwide privilege to use, modify, perform, display, reproduce and distribute the information for the sole purpose of operating riger® and providing related services. BelcaSoft shall also have an unlimited, perpetual, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable, and worldwide privilege to use, incorporate into riger®, modify, perform, display, reproduce, and distribute any suggestions, enhancement requests, recommendations, or other feedback provided by Licensee relating to the operation or features of riger®.
- Use Reporting, License Violations and Remedies. BelcaSoft reserves the right to gather data on Licensee’s usage of riger® to ensure that our products are being used in accordance with the terms of this agreement. Licensee agrees to allow BelcaSoft, or an authorized agent, to audit Licensee’s use of the riger® (including that of the Authorized Users). BelcaSoft will provide at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. BelcaSoft will bear all costs incurred during the audit, unless the audit reveals that Licensee has exceeded the level of use outlined in the SOW. Licensee will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit. If Licensee is found in breach of the level of use, BelcaSoft may invoice Licensee for any past or ongoing excessive use, payable promptly after receipt. Any unauthorized use shall be considered by BelcaSoft to be a violation of this agreement. BelcaSoft reserves the right to remedy violations immediately upon discovery by any means necessary.
- Liability for Third Parties. Should Licensee make available any software, login identifications, or security credentials, or other means of access to riger® to third parties, whether deliberately or through error or omission, Licensee agree that any and all use of riger® by such third parties, regardless of whether such use is specifically authorized or unauthorized by Licensee, shall be legally attributed to Licensee, and Licensee hereby accepts liability for any and all such use.
7. Fees. Licensee shall pay to BelcaSoft the Fees, as set out in the pricing schedule. BelcaSoft will submit a detailed invoice to the Licensee. Licensee shall make payment according to the due date stated in the invoice, for any undisputed and complete invoice. If travel is required by BelcaSoft to provide Services to Licensee, a flat Fee covering travel expenses will be invoiced as outlined in a SOW.
- BelcaSoft does not refund license fees. Once the license fee payment is made to BelcaSoft Licensee will have no recourse for receiving a refund of any part of the fees.
- BelcaSoft shall not increase the Fees by more than the annual inflation rate, as measured by the Consumer Price Index – All Items for Texas, United States, unless otherwise set out in a Services Schedule. Such increases shall not occur more than once per year. BelcaSoft shall notify the Licensee about new Fees by providing an updated pricing schedule up to sixty (60) days before the end of each subscription period.
8. Acceptance Testing. Upon completion of the Services, as stated on the certificate of completion issued by BelcaSoft, Licensee shall have thirty (30) days to acceptance test Services. If Licensee has determined that the Services have not successfully completed the acceptance test, Licensee shall promptly notify BelcaSoft in writing. If no notice has been received by BelcaSoft within thirty (30) days, the Services will be deemed accepted and all the fees for the Services provided will be paid to BelcaSoft up to and including the acceptance date.
9. Term and Termination. The term of this Agreement commences as of the effective date and shall continue for one (1) year (“Initial Subscription Period”). After the initial Subscription Period, the Subscription Period will be extended automatically, for further periods of one (1) year each (“Renewal Period”), unless Licensee gives BelcaSoft notice in writing not less than forty-five (45) days before the expiration of the Subscription Period, in which case this Services Schedule will terminate as at the end of such Subscription Period. Upon the termination of this Agreement, all license rights granted hereunder shall terminate in full and without notice, and the Licensee shall immediately cease use of riger®. Notwithstanding the foregoing, any provision that by its nature or context is intended to survive any termination or expiration of this agreement, including but not limited to indemnification, shall so survive.
- For the license(s) to remain active, Licensee payment must be processed prior to the expiration date for the license updates to be performed. For Licensee’s convenience BelcaSoft provides License expiration warnings in the product interface should there be any issues that would cause the product License to expire.
- It is Licensee’s responsibility to contact BelcaSoft regarding any potential expiration that Licensee deem inappropriate. BelcaSoft is not liable for any damages or costs incurred in connection with the expiring Licenses. If the licenses expired, their reinstatement shall be subject to and conditioned upon License payment of (i) a reinstatement fee equal to 20% of the annual license fee and (ii) 100% of the license fees that would have been payable for the license(s) which expired for the entire period between the date of expiry and the next renewal date.
10. Open Source Software. riger® may contain open-source software components, each of which has its own copyright notice requirements and own applicable license conditions. These components are subject to the terms of third-party open source licenses, and not the terms of this agreement.
11. Confidentiality. Each party shall preserve the confidentiality of the other party’s Confidential Information and treat such Confidential Information with at least a reasonable standard of care. Either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
12. Indemnification by Licensee. The Licensee shall indemnify, defend, and hold harmless BelcaSoft (and its officers, directors, employees, and agents) from and against any and all claims, suits, liability, damages, losses, costs, or expenses (including reasonable attorneys’ fees) which result from claims that any modifications the Licensee makes to riger® or any combination of riger® with software or other items not approved by BelcaSoft infringes or violation of any third party intellectual property right. In case any action or proceeding is brought against BelcaSoft by reason of any such claim, demand, action, damage, loss, liability, cost, or expense, the Licensee’s duty to defend shall begin upon receipt of written notice identifying the allegations that give rise to this duty to defend and shall be coextensive with the Licensee’s indemnification obligation.
BelcaSoft shall have no liability under the foregoing indemnity for any Claim of infringement to the extent it arises from:
- Any unauthorized modification to Software, Services or Documentation made by Licensee or its agents;
- The unauthorized combination or use of Software, Services or Documentation with other items where the Software, Services or Documentation alone would not be infringing; or
- Any Claim that Software, Services or Documentation infringe any Intellectual Property Right in which Licensee or Affiliate has an ownership interest.
14. No Warranties. BelcaSoft makes no representation as to the compatibility of riger® with any specific operating environments or computing device. BelcaSoft licenses riger® to licensee on an “as is” basis without any express or implied warranties or representations of any kind, whether oral or written, whether express, implied, or arising by statute, custom, course of dealing, or trade usage. To the maximum extent permissible by applicable law, BelcaSoft disclaims any and all implied warranties or conditions of title, merchantability, fitness for a particular purpose, and non-infringement, with regard to riger®. The licensee acknowledges that the operation of riger® may not be uninterrupted or error-free, and that errors may not be corrected. BelcaSoft is not responsible in any way for any interference, errors, or prevention of the licensee’s access to or use of riger®. BelcaSoft is not your accountant and use of riger® does not constitute the receipt of accounting advice. It is your sole responsibility to determine that riger® meets the needs of your business and is suitable for the purposes for which it is used. You remain solely responsible for complying with all applicable accounting, tax, and other laws. It is your responsibility to check that the storage of and access to your data via riger® and the website will comply with the laws applicable to you and your business (including any laws requiring you to retain records).
15. Backup of Data. The Licensee shall maintain copies of all data and information inputted by the Licensee into riger®. BelcaSoft shall follow its archival procedures, such as performing scheduled backups, routine daily data recovery or archiving, for Licensee Data, but does not make any guarantees that there will be no loss of data or information. BelcaSoft expressly excludes and disclaims any liability for any loss of the Licensee’s data and information, no matter how such loss was caused.
16. Privacy and Data Security. BelcaSoft agrees that it shall use best efforts to (i) keep and maintain information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure; and (ii) use and disclose information solely and exclusively for the purposes for which the information, or access to it, is provided pursuant to the terms and conditions of this agreement and not use, sell, rent, transfer, distribute, or otherwise disclose or make available information for BelcaSoft’s own purposes or for the benefit of anyone other than the Licensee, in each case, without the Licensee’s prior written consent.
17. No Unlawful or Prohibited Use. As a condition of riger® use, Licensee warrants that they will not use riger® for any purpose that is unlawful or prohibited by this agreement. Licensee may not use riger® in any manner which could damage, disable, overburden, or impair riger® or interfere with any other party’s use of riger®. Licensee may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through riger®.
18. Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
19. Injunctive Relief. The Licensee understands and agrees that its breach of this agreement may cause BelcaSoft irreparable damage for which recovery of money damages would be inadequate, and that BelcaSoft shall therefore be entitled to obtain timely injunctive relief to protect BelcaSoft’s rights under this agreement in addition to any and all remedies available at law, without the necessity of a bond.
20. Copyright and Trademark Notices. All trademarks are owned by BelcaSoft and its affiliates. The content, organization, graphics, design, compilation, magnetic translation, digital conversion, and other matters related to riger® are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. Other than as expressly permitted in the “LICENSE” section above, the copying, redistribution, use or publication by Licensee of any such matters or any part of riger®, is strictly prohibited. Licensee do not acquire ownership rights to any article, document or other materials viewed through riger®. The posting of information or materials on riger® does not constitute a waiver of any right in such information and materials. Some of the content on riger® may be the copyrighted work of third parties. Nothing contained in riger® should be understood as granting Licensee a license to use any of the trademarks, service marks, or logos owned by BelcaSoft or any third party.
21. Changes to This Agreement. Due to changing technological and marketing demands, BelcaSoft reserves the right to revise, amend, or modify this Agreement from time to time. Notice of any revision, amendment, or modification will be posted on the website, and/or software client through which the Licensee accesses riger®, and will be effective on the date noted in the posting. This agreement may not be amended or modified by the Licensee except by means of a written document signed by both the Licensee and an authorized representative of BelcaSoft. By continuing to use riger® after the amendments are effective, the Licensee accepts and agrees to abide by them.
22. General Provisions. This agreement is governed by and shall be construed in accordance with the federal laws of Canada. This agreement is the entire agreement between the parties on the subject matter hereof and supersedes all prior communications or agreements, written or oral. The relationship of the parties hereunder is that of independent contractors, and this agreement will not be construed to imply that either party is the agent, employee, or joint ventures of the other. If any provision of this agreement is held to be unenforceable, this agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. The Licensee may not assign or transfer this agreement (by operation of law or otherwise) without the prior written consent of BelcaSoft and any prohibited assignment or transfer will be null and void, but BelcaSoft may freely assign or transfer this agreement. This Agreement will be binding upon and will inure to the benefit of the parties’ permitted successors and/or assignees. A waiver by either party of a breach of any provision of this agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.