SAGE 300 ERP ONLINE SUBSCRIPTION AGREEMENT – TERMS AND CONDITIONS
THANK YOU FOR YOUR INTEREST IN SAGE 300 ERP ONLINE (THE "SERVICE"). PLEASE READ CAREFULLY THE FOLLOWING SAGE 300 ERP ONLINE SUBSCRIPTION AGREEMENT TERMS AND CONDITIONS (THE “AGREEMENT") BEFORE SUBMITTING YOUR APPLICATION FOR THE SERVICE AND CONCLUDING THE ONLINE REGISTRATION PROCESS.
BY SUBMITTING YOUR APPLICATION AND USING THE SERVICE, YOU AGREE TO COMPLY WITH ALL OF THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT. THESE TERMS AND CONDITIONS ARE A LEGAL CONTRACT BETWEEN YOU AND SAGE FOR USE OF SAGE 300 ERP ONLINE.
BY CLICKING ON THE "I AGREE TO TERMS AND CONDITIONS" OR OTHER SIMILAR BUTTON ON THIS REGISTRATION PAGE OR BY USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THESE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THIS AGREEMENT AND THESE TERMS AND CONDITIONS, DO NOT CLICK THE "I AGREE TO TERMS AND CONDITIONS" BUTTON, IN WHICH CASE YOU SHALL NOT USE OR OTHERWISE ACCESS THE SERVICE.
TERMS AND CONDITIONS
(1) "Agreement" means this Sage 300 ERP Online Subscription Agreement.
(2) “Authorized User” has the meaning set forth in Section B(2).
(3) "Client Software" means Sage software that allows a Device to access or utilize the Service or functionality provided by the Service.
(4) "Device" means a computer, workstation terminal, handheld PC, pager, telephone, "smart phone," or other electronic device that can be used to access the Internet.
(5) "Effective Date" means the date that You complete the online application process.
(6) “Force Majeure” has the meaning set out in Section T(7).
(7) "Authorized User" means each of Your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user IDs and passwords by You or by Sage at Your request.
(8) "Sage" means the Sage Entity from which You or Your authorized Sage Reseller purchased a license to the Software. Sage may also be referred to as "we," "us" or "our."
(9) "Sage Entity" means any individual, partnership, corporation, limited liability company, trust or other entity that controls, is controlled by or is under common control, directly or indirectly, with Sage Software, Inc. including its worldwide affiliates.
(10) "Sage Reseller" means an independent third party authorized by Sage to act as a reseller or distributor of the Software.
(11) “Sage System” means the information system on which the Software resides, including hosting servers that process Your data and the internal network components that connect these servers to the Internet backbone, but excludes the Internet backbone itself and the network from which You connect to the Internet backbone.
(12) "Service(s)" means the specific edition of Sage 300 ERP, customer relationship and related services and Software embodied therein identified during Sage’s online application process.
(13) "Software" means collectively Sage 300 ERP software, Client Software and any other software that Sage makes available to You as part of the Service.
(14) "Subscription Term" means the Initial Term and all Renewal Terms of Your subscription as described in Section D.
(15) “Updated Version” has the meaning set forth in Section K.
(16) "Your Content" means the data and other materials You input for processing onto the Service.
B. LICENSE GRANT AND SOFTWARE-SPECIFIC TERMS
(1) License Grant. Subject to the payment of all applicable Fees and Your compliance with the terms and conditions of this Agreement, Sage hereby grants to You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Software in accordance with the instructions and in connection with the application services provided to You by Sage, solely for Your internal use. Except for certain Client Software that may be installed on Your Devices, You are only authorized to access the functionality of the Software remotely as expressly authorized by Sage. Other than such Client Software, You may not install any other components of the Software on Your Devices.
(2) The Software. The Software is designed to perform general business accounting functions. The following additional terms apply to Your use of or access to the Software: (a) You will receive a user ID and password for each Authorized User (as defined below), and each Authorized User may access the Service only using his or her issued user ID and password; (b) You may register any number of Authorized Users but only that number of permitted concurrent users may access the Service concurrently; (c) the licenses granted herein are personal and specific to Authorized Users, and no person or entity other than an Authorized User shall access or use the Service without the prior written consent of Sage; (d) You may change Authorized Users or access privileges for Authorized Users only pursuant to the procedures established by Sage from time to time; and (e) each Authorized User may install the Client Software only on a Device used by or for such Authorized User, and each shall erase or destroy such Client Software upon the earlier of (i) termination of this Agreement, (ii) notice from Sage, or (iii) cessation of use of the Device by such Authorized User. As used herein, "Authorized User" means any individual(s) authorized by You to access and use the Service pursuant to this Agreement.
C. SUBSCRIPTION SERVICE
During the online application, You selected from the available Support and Service options, pricing and service plan(s) to which You wish to subscribe. Your application for Service will be deemed accepted by Sage unless Sage notifies You to the contrary within fifteen (15) days from the Effective Date. Subject to the payment of a prorated refund where applicable, Sage reserves the right to remove all or part of the Software from the Service in its sole discretion if the Software is or in the opinion of Sage may become (i) the subject of any claim or suit for infringement, or (ii) unsuitable for hosting. If Sage's removal of any part of the Software from the Service substantially impairs Your use and enjoyment of the Service, You may terminate this Agreement and receive a pro-rated refund of any prepaid and unused fees. Sage also reserves the right to interrupt access to the Service to perform regular and emergency maintenance as provided in Section U.
D. SUBSCRIPTION TERM
(1) The Agreement is effective as of the Effective Date. Once You have completed the Sage 300 ERP Online application process, Sage will process Your account and set up Your Service. You will have access to Your Service within 2-5 days after the Effective Date.
(2) Your subscription shall begin on the Effective Date and run for the initial term specified in the online application (the “Initial Term”). Your subscription will automatically renew on each anniversary of the Effective Date for additional and consecutive terms as specific at the time of renewal (each a “Renewal Term”) unless (i) You or Sage terminate this Agreement as described in Section R, or (ii) You fail to pay all applicable Fees when due. Together, the Initial Term and each Renewal Term make up Your Subscription Term.
(3) Regardless of the location of the Software, You are responsible for strict compliance with this Agreement. If You fail to comply with any of the limitations or other requirements described herein, Sage may in its sole discretion, following delivery of notice and an opportunity to cure if required under Section R, terminate this Agreement and Your access to the Service and Software. Such termination shall be in addition to and not in lieu of any criminal, civil or other remedies available to Sage. If this Agreement terminates for any reason, You must immediately cease all use of the Software and destroy all copies of the Software You and Your Authorized Users possess or control.
E. SUBSCRIPTION FEES
Fees for the Service You selected include the Monthly Subscription Fee which may include, but is not limited to, a named or concurrent user fee, data transfer fees, connect time fees, application use and storage fees and other variable fees as may be indicated by Sage ("Fees"). You agree to pay all applicable Fees. Sage shall not change Your Fees prior to the end of Your Initial Term or a Renewal Term, as defined in Section D, above, and shall provide You with thirty (30) days prior written notice of such change.
(1) By providing a credit card account number, checking account number, ACH account number or other account number permitting electronic charge, debit or transfer of funds (collectively "Electronic Payment Method"), You authorize Sage to charge the account number You specify for all Fees applicable to Your Subscription Term. Payment may be made by a method other than the Electronic Payment Method only with Sage's prior written consent and will be subject to and include appropriate processing fees.
(2) You hereby agree to pay Sage the (i) First Month's Subscription Fee, which equals the Total Activation Fee Due, (ii) the Monthly Variable Fee, which shall be set forth in the "Service" section of the online registration process, and (iii) applicable Variable Fees as set forth in the "Service" section of the online registration process or as otherwise agreed between You and Sage. You will pay Sage all such Fees including Monthly Subscription Fees in advance of Your monthly use of the Services. You will pay Sage all Monthly Variable Fees following the end of the month in which they were incurred (or earlier in the case of prepaid fees.) Sage will generate monthly invoices on or after the first day of each calendar month for the current and/or previous calendar month of Service, as applicable. Concurrently with the generation of each invoice, Sage will (i) charge the amount of such invoice to You by Electronic Payment Method or, (ii) in the case of payment other than by Electronic Payment Method, deliver such invoice to You for payment in accordance with alternative payment terms approved in advance by Sage. Fees for any partial month(s) will be prorated.
(3) If You prepay fees and the Total Monthly Fees exceed the Discounted Prepaid Monthly Fees in any month, You will pay such excess amount to Sage (i) concurrently with the generation of the invoice to You by Electronic Payment Method or, (ii) in the case of payment other than by Electronic Payment Method, upon delivery of such invoice to You for payment in accordance with alternative payment terms approved in advance by Sage. Sage earns the prepaid Fees upon payment and they are nonrefundable for any reason whatsoever, including without limitation, in the event of early termination or in the event that the Total Monthly Subscription Fees for any month are less than the Discounted Monthly Fees for such month.
(4) You will pay and guarantee the payment of all Fees as required herein, plus any applicable late fees or penalties in the event that Your bank or financial institution for any reason does not honor any check or electronic charge, debit or transfer. You are obligated to pay all Fees irrespective of whether You received an invoice. Unless otherwise indicated, all Fees are due in the currency specified in the online registration process. Late payments will accrue interest at the higher of one and one-half percent (1½%) per month or at the highest rate permitted by law. All payments required by this Agreement are exclusive of applicable taxes and shipping charges. If applicable to Your subscription application, You may increase Your number of Authorized Users at any time. You may reduce Your number of Authorized Users by a maximum of 25% in any 3-month billing period. Administrative change fees apply to both the addition and deletion of Authorized Users. If the Monthly Subscription Fee is based on a subscribed number of Authorized Users, it will be calculated based on Your highest number of Authorized Users during the term of this Agreement. In the event of termination by You as described in Section R, You will owe the Monthly Subscription Fee until the effective termination date, which is the date the Service will cease completely.
G. RULES AND REGULATIONS REGARDING YOUR CONDUCT
(1) You agree to comply with this Agreement when using the Service and Software. Sage may modify this Agreement in its sole discretion from time to time by delivery of thirty (30) days notice to You in accordance with Section T(10). When You register for the Service, Sage will provide You with a user ID and a password. You shall use the Services or modify Your information, data and content only through such user ID and password. You are solely responsible for maintaining the confidentiality of Your user ID and password. You are solely responsible for any and all activities that occur under Your user ID and password and those of Your Authorized Users unless password confidentiality is breached by Sage's own negligence. You agree to notify Sage immediately of any unauthorized use of Your account or any other breach of security known to You.
(2) You must comply with all applicable laws and this Agreement when using the Service. Sage reserves the right to suspend or terminate Your Service if You engage in one or more of the activities prohibited herein. In addition, You may be charged for any costs incurred by Sage or any related Sage entity in connection with Your breach of this section, including costs incurred to enforce Your compliance. Sage cannot monitor, has no control over and is not responsible for Your hardware, the content of Your hard drive and/or any other equipment You use for the Service. Sage provides You with 1GB of server storage (i:\Drive) as part of Your Service subscription. If You exceed the 1GB server storage limit, Sage will charge and bill You for use of additional GB as part of Your Fees using Sage’s then-current GB overage rates. Sage reserves the right to restrict, change, suspend or terminate Your Service by any means if Your access, use or connection to the Service is impairing or adversely affecting Service operation, including use of the Service by others. If Your conduct fails to conform to this Section Sage may, in its sole discretion and upon delivery of notice and an opportunity to cure if required under Section R, terminate this Agreement for breach and/or Your access to the Service.
H. OWNERSHIP RIGHTS
The Software and Service are protected by United States copyright laws and international treaty provisions. As between You and Sage (i) You own the content or data (including without limitation, text, data elements, etc.) supplied by You for processing ("Your Content"), and (ii) Sage, its affiliates and/or its licensors own all right, title, and interest in and to (a) the Service; (b) the technology and software available on the Service; and (c) all content (including without limitation, any images, text, software, music, sound, photographs, video, graphics, and "applets" incorporated into the Software) and all copyright, trade secret, patent, trademark and other intellectual property rights therein but excluding Your Content (collectively the “Sage Technology”). Your possession, installation or use of the Software or Service does not transfer to You any ownership, title, or registrable interest of any kind to the intellectual property in the Software or Service and that You will not acquire any rights to the Software except as expressly set forth in this Agreement. Any use of the Sage Technology other than to process Your Content within the scope of the Service is not licensed and strictly prohibited. You shall not download, transmit, reproduce, distribute or in any way exploit any Sage Technology obtained through the Services without Sage’s prior express written permission. This Agreement does not grant either You or Sage the right to use the other’s trade names, service marks or any other trade insignia. Any use of any of the other’s trade names, services marks or any other trade insignia requires the other’s prior written consent.
You may not make copies of the Software except that You may install the Client Software on Devices used by You and Authorized Users expressly authorized by Sage. You must erase or destroy such Client Software immediately upon termination of Your Agreement with Sage, upon notice from Sage or upon cessation of use of the Device by You or any Authorized User. You may not copy any printed materials that may accompany the Software or Service.
You may not rent, lease, sublicense, loan, sell, distribute, market or commercialize any portion of the Software, its components or the Service. You shall only install and use the Client Software (a) on hardware under Your exclusive control and, in the case of hardware performing any server functions, located at premises where You normally conduct day-to-day business operations; (b) on a server located at premises under the exclusive or primary control of an authorized Sage hosting partner or its agent; or (c) on a server not owned by You so long as You are the only party with access to it on such server. You shall not permit any parent, affiliate, subsidiary or any other third party to benefit from the use or functionality of the Software or Service, either directly or via a facility management, timesharing, service bureau or any other arrangement except that You may use the Software, as provided herein, to process the data of an affiliate or subsidiary of which You own more than fifty percent (50%) only if Your use of the Software is limited to a single dataset. You shall not use the Software as part of a facility management, timesharing, or service bureau arrangement. You shall not transfer any right granted to You under this Agreement. To the maximum extent permitted by applicable law, You may not rename files of, modify, translate, localize, decompile, disassemble, decrypt, reverse engineer, attempt to derive source code from, remove any proprietary notices or Sage’s name from, or create derivative works based upon the Software or Service, in whole or in part. You may not duplicate or copy any portion of the Service, Software or related documentation unless otherwise set forth herein. Sage reserves all rights not expressly set forth hereunder. Sage reserves the right to periodically audit Your compliance with the terms of this Agreement upon advance written notice.
K. SUPPORT AND UPGRADES
(1) Sage shall provide live telephone support to address connectivity issues twenty-four (24) hours per day, seven (7) days per week. A "connectivity issue" is any issue within the Sage System or caused by Sage that results in Your inability to log in to the Sage System and access the Service. You may purchase a Sage Business Care support plan covering “how to” questions on use of the Software from Sage or Your Sage Reseller for an additional fee. Sage does not provide support for Microsoft products used in conjunction with the Service but it may be available from Microsoft or Your Sage Reseller for an additional fee. To be eligible for Sage support and upgrades, You must be using (a) the most current version or upgrade of the Software released by Sage and made available to You (the "Updated Version") or (b) at least one of the two versions immediately preceding the Updated Version or Sage may decline to provide Support. Sage will notify You of an Updated Version release. Additionally, You must remain current on payment of all Fees to receive support. Sage will not provide support and may suspend Service if any payment on Your account is thirty (30) days or more overdue.
(2) You have the option to trade-in Your Service in exchange for a credit of up to 50% of Your Service subscription monthly payments (up to a maximum of 12 months) for use towards the purchase of on-premise licenses for the same number of Authorized Users You select/purchase for Your online Service. Please contact Your Regional account manager for details.
L. LIMITED WARRANTIES
Sage will use reasonable commercial efforts to ensure that the Sage System will be accessible to connection from the Internet as more fully set out in Section U. In the event of a claim for breach of the above warranty (the "Limited Warranty"), Sage's sole obligation and Your sole remedy shall be as set forth in Section U. There are no warranties, liabilities or remedies provided by Sage's suppliers or any other third party regarding the Software, the Services or the Sage System.
(1) WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET FORTH IN SECTION L ARE PROVIDED IN LIEU OF AND TO THE EXCLUSION OF ANY OTHER IMPLIED, EXPRESS OR STATUTORY WARRANTY AND THE SOFTWARE (AND ACCOMPANYING DOCUMENTATION) AND SERVICE ARE OTHERWISE PROVIDED ON AN "AS IS" BASIS. WITHOUT LIMITING THE FOREGOING, YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND SOLE RESPONSIBILITY FOR THE INSTALLATION AND USE OF, AND RESULTS OBTAINED FROM, THE SOFTWARE. SAGE MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS FREE, OR, EXCEPT AS SET FORTH IN SECTION L, FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL SATISFY YOUR SPECIFIC REQUIREMENTS. EXCEPT AS PROVIDED IN SECTION L AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAGE AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, OF LACK OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, AND LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE SERVICES, SOFTWARE AND ASSOCIATED DOCUMENTATION. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NONINFRINGEMENT WITH REGARD TO THE SOFTWARE. THE ENTIRE RISK OF THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE AND THE SERVICE, IF ANY, REMAINS SOLELY WITH YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(2) DATA DISCLAIMER. YOU ACKNOWLEDGE THAT ANY DATA ENTRY, CONVERSION OR STORAGE IS SUBJECT TO THE LIKELIHOOD OF HUMAN AND MACHINE ERRORS, MALICIOUS MANIPULATION, OMISSIONS, DELAYS, AND LOSSES, INCLUDING BUT NOT LIMITED TO INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA THAT MAY RESULT IN LOSS OR DAMAGE TO YOU, YOUR PROPERTY AND/OR YOUR CONTENT. EXCEPT AS PROVIDED IN SECTION L, SAGE SHALL NOT BE LIABLE FOR ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES. YOU ARE RESPONSIBLE FOR ADOPTING REASONABLE MEASURES TO LIMIT THE IMPACT OF SUCH PROBLEMS, INCLUDING BACKING UP YOUR CONTENT AND DATA, ADOPTING PROCEDURES TO ENSURE THE ACCURACY OF DATA INPUT, EXAMINING AND CONFIRMING RESULTS PRIOR TO USE, ADOPTING PROCEDURES TO IDENTIFY AND CORRECT ERRORS AND OMISSIONS, REPLACING LOST OR DAMAGED MEDIA, AND RECONSTRUCTING DATA. YOU ARE ALSO RESPONSIBLE FOR COMPLYING WITH ALL LOCAL, STATE, AND FEDERAL LAWS PERTAINING TO THE USE AND DISCLOSURE OF ANY DATA. IF YOU ARE LICENSING SOFTWARE OR SERVICES FOR EVALUATION PURPOSES (AN "EVALUATION PRODUCT"), YOU ACKNOWLEDGE AND UNDERSTAND (I) THAT THE EVALUATION PRODUCT MAY BE USED FOR EVALUATION PURPOSES ONLY, (II) THAT THE EVALUATION PRODUCT SHALL BE OPERABLE ONLY FOR A LIMITED TIME AND (III) THAT, UPON EXPIRATION OF THE EVALUATION PERIOD, ANY DATA OR OTHER INFORMATION USED WITH, PROCESSED BY AND/OR STORED IN CONJUNCTION WITH THE EVALUATION PRODUCT MAY BE IRRETRIEVABLE, UNRECOVERABLE AND/OR OTHERWISE UNUSABLE.
(3) DISCLAIMER CONCERNING SAGE RESELLERS AND CERTIFIED CONSULTANTS. ANY AUTHORIZED SAGE RESELLER, CERTIFIED CONSULTANT, INSTALLER OR CONSULTANT IS NOT AFFILIATED WITH SAGE IN ANY CAPACITY OTHER THAN AS A RESELLER, INSTALLER OR CONSULTANT OF SAGE'S PRODUCTS AND HAS NO AUTHORITY TO BIND SAGE OR MODIFY ANY AGREEMENT, LICENSE OR WARRANTY. SAGE MAKES NO REPRESENTATIONS, WARRANTY, ENDORSEMENT OR GUARANTEE REGARDING THE SKILLS OR QUALIFICATIONS OF ANY AUTHORIZED SAGE RESELLER, CERTIFIED CONSULTANT, INSTALLER OR CONSULTANT AND YOUR ARE RESPONSIBLE FOR INDEPENDENTLY INVESTIGATING THE SKILLS AND QUALIFICATIONS OF ANY AUTHORIZED SAGE RESELLER, CERTIFIED CONSULTANT, INSTALLER OR CONSULTANT WITH WHOM YOU ASSOCIATE.
N. LIMITATION ON LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER TORT, CONTRACT OR OTHERWISE) SHALL SAGE OR ITS SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, FOR PERSONAL INJURY, LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING A DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE (WHETHER ACTIVE OR PASSIVE), AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE OR THE SERVICE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, AND STRICT LIABILITY), BREACH OF CONTRACT OR BREACH OF WARRANTY BY SAGE, AND EVEN IF SAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SAGE BE LIABLE FOR ANY DAMAGE IN EXCESS OF THE REMEDY SET FORTH IN SECTION U AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO YOUR USE OF THE SOFTWARE OR SERVICE SHALL BE AS PROVIDED IN SECTION U. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. THE FOREGOING SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND ANY PORTION NOT ENFORCEABLE IGNORED, LEAVING ALL ENFORCEABLE PROVISIONS IN EFFECT.
(1) You agree to defend, indemnify, and hold Sage harmless from and against any and all claims and liabilities, including reasonable attorneys' and experts' fees, related to or arising from (i) any breach of Your obligations and covenants under this Agreement, (ii) Your use of the Service, (iii) all conduct and activities occurring under Your and Your Authorized Users’ user ID and password, (iv) any item or service sold or advertised in connection with Your Content or Your information and data, (v) any defamatory, libelous or illegal material contained within Your Content or Your information and data, (vi) any claim or contention that Your Content or Your information or data infringes any third party's patent, copyright or other intellectual property rights or violates any third party's rights of privacy or publicity, and (vii) any third party's access or use of Your Content or Your information and data. Sage reserves the right at its own expense to participate in the defense of any matter otherwise subject to indemnification from You but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of Sage, which Sage shall not unreasonably withhold.
(2) If You receive notice of any claim that Your use of any part of the Software or Service infringes any third party’s intellectual property right in a US patent, US copyright, or US trade secret (an “Infringement”), Sage shall defend, and shall indemnify and hold You harmless by paying any resulting costs and damages finally awarded by a court with respect to any such claim provided that You (a) notify Sage in writing promptly upon becoming aware of the claim, (b) at Sage’s request and expense, give Sage such information and assistance as is reasonable under the circumstances, and (c) give Sage the right to settle the claim in Sage’s sole discretion and at Sage’s expense. This indemnification does not extend to any claim based upon any alleged Infringement arising from the combination of the Software or Service with other elements not under Sage’s sole control, or arising from any part of the Software or Service that You or a third-party modify, or that incorporates specifications, designs or formulas that You provide. If You are prevented from using the Software or Service because of an actual or claimed Infringement, then at Sage’s option, Sage shall promptly either obtain for You the right to continue using the affected part of the Software or Service, replace or modify the affected part of the Software or Service so that it becomes non-infringing, or if none of the foregoing alternatives are possible after Sage exercises commercially reasonable efforts, You may terminate this Agreement and Sage shall ensure that You receive a refund of, or credit for the month in which this Agreement is terminated.
(3) The foregoing constitutes Sage's entire obligation and Your exclusive remedy in the event of any claim for infringement.
(1) If, and only if, Sage hosts Your Web site as part of the Service, You hereby expressly agree that Sage may distribute information regarding Your products and services and personally identifiable public information available on Your Web site to the Sage site's search engine and various other comparative shopping and search services partners, and create a database of public information about You or Your business and make that database available to our partners. Public information means information available to the public on Your Web site and may include the following: information about the products or services You offer through Your Web site, Your operating hours, Your business address, Your URL, Your business contact information and other similar information. In no event, however, will Sage disclose Your Confidential Information as defined in Section Q(2) below.
(1) Sage Confidential Information. For the purposes hereof, "Sage Confidential Information" shall mean any proprietary or confidential information owned or controlled by or licensed to Sage at any time during Your Subscription Term, including without limitation, the Service, the Software and all other computer software developed by or licensed to Sage (including all documentation, source and object code, screen shots and displays, graphical user interfaces, algorithms, formulae, data structures, scripts, application programming interfaces and protocols), inventions (whether patentable or not), patents, patent applications, know-how, ideas, discoveries, compositions, products, schematics, databases, drawings, designs, proposals, photographs, samples, models, processes, procedures, data, information, manuals, reports, correspondence, notes, any item marked "confidential" or "proprietary," trade secrets, vendors, customers (including without limitation the identity of Sage's clients and their employees) and markets of Sage, business plans, opportunities, forecasts and strategies, pricing and costing information, finances and all other proprietary or confidential information related to the business or affairs of Sage. Sage Confidential Information shall not be disclosed or disseminated to any third party except for information that (a) is known to You at the time of Sage’s disclosure, (b) has become publicly known except through Your wrongful act, (c) You have rightfully received from a third party not subject to restrictions on disclosure and without breach of any agreement with Sage, (d) You have independently developed without the use of Sage Confidential Information as evidenced by appropriate documentation, (e) Sage has approved for release in writing at its sole discretion, or (f) You are required to disclose pursuant to a court order or similar mandate, provided that You first give Sage the opportunity to seek a protective order protecting the Sage Confidential Information from disclosure. Notwithstanding anything herein to the contrary, any Sage Confidential Information that is disclosed or disseminated to any third party shall nevertheless remain Sage Confidential Information.
(2) You may be provided, receive or have access to Sage Confidential Information. You shall preserve and protect the confidentiality of the Sage Confidential Information and all physical forms thereof, whether it is disclosed to You before or after the Effective Date. You shall not disclose or disseminate Sage Confidential Information to any third party without Sage’s express written consent and You shall not use the Sage Confidential Information for Your own benefit or for the benefit of any third party, except to the minimum extent necessary to exercise Your rights under this Agreement. Upon Sage's request, You shall return to Sage all copies of the Sage Confidential Information in Your or Your Authorized Users’ possession or control.
(3) Your Confidential Information. For the purposes hereof, "Your Confidential Information" shall mean any proprietary or confidential information owned or controlled by You during the term hereof and stored or processed in the Sage System, including without limitation, all data, text, content, information, manuals, reports, correspondence and notes. Sage shall implement commercially reasonable security measures designed to prevent the disclosure or dissemination of Your Confidential Information to any third party, except for information that (a) is known to Sage at the time of Your disclosure, (b) becomes publicly known except through Sage’s wrongful act, (c) Sage has rightfully received from a third party under no restriction on disclosure and without breach of any agreement with You; (d) Sage has independently developed without the use of Your Confidential Information as evidenced by appropriate documentation, (e) You have approved for release in writing at Your sole discretion; or (f) Sage is required to disclose pursuant to a court order or similar mandate, provided that Sage first gives You the opportunity to seek a protective order protecting Your Confidential Information from disclosure. Notwithstanding anything herein to the contrary, Your Confidential Information that is disclosed or disseminated to any third party shall nevertheless remain Your Confidential Information.
(4) Sage may be provided, receive or have access to Your Confidential Information. Sage shall implement commercially reasonable security measures designed to preserve and protect the confidentiality of Your Confidential Information and all physical forms thereof. Sage shall implement commercially reasonable security measures designed to prevent the disclosure or dissemination of Your Confidential Information to any third party without Your written consent and shall not use Your Confidential Information for Sage's own benefit or for the benefit of any third party.
(1) You may terminate this Agreement and Your Subscription Term at the end of Your Initial Term or any Renewal Term by providing Sage a written notice of termination at least thirty (30) days before the end of Your Initial Term or Renewal Term. You may also terminate this Agreement for Sage’s breach if Sage has not cured the breach within thirty (30) days after You deliver notice of the breach to Sage.
(2) Sage may terminate this Agreement for convenience by providing You a written notice of termination at least thirty (30) days' prior to the expiration of Your Initial Term or any Renewal Term, in which case this Agreement will be deemed terminated as of the end of such term. If You breach this Agreement by engaging in conduct that is criminal, tortious, fraudulent, malicious, or which infringes Sage or a third party’s right of privacy or an intellectual property right, Sage may in its sole discretion terminate this Agreement and/or Your access to the Service immediately without notice to You and without any opportunity to cure such breach. If You breach this Agreement in any other manner, Sage may terminate this Agreement and/or Your access to the Service if You fail to cure the breach within thirty (30) days after Your receipt of Sage’s written notice that a breach has occurred. However, upon Your second breach, Sage may terminate this Agreement and/or Your access to Service immediately without notice or an opportunity to cure.
(3) Any termination of this Agreement will terminate Your access to the Service, however termination does not relieve You of Your obligation to pay Fees that become due before or after the date of termination. Neither party is liable to the other for any damages, costs, losses or expenses resulting from a termination made according to the terms of this Agreement. Upon termination, (i) You and Your Authorized Users must immediately cease all use of the Software and destroy all copies of the Software under Your or Your Authorized Users’ possession or control, and (ii) provisions of this Agreement which by their nature would be expected to survive termination shall survive and remain in full force and effect according to their terms.
(4) Sage will maintain copies of Your data files and records for archival purposes only as part of Sage’s routine data back-up practices, which may include deletion. If this Agreement or Your Subscription Term ends or if Sage ends Services for any reason, You shall have thirty (30) calendar days to provide Sage a written request to transmit copies of Your data files to You, subject to applicable fees.
S. NOT FAULT TOLERANT
The Software and Services may contain technology, including support for programs written in JAVA that is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software or Service could lead directly to death, personal injury or severe physical or property damage (collectively, "High Risk Activities"). Sage expressly disclaims any express or implied warranty of fitness for High Risk Activities.
(1) Export Control Compliance. You agree to abide by U.S. and other applicable export control laws and shall not transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization.
(2) Independent Contractors. This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between You and Sage. Neither party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its affiliates, whether express or implied, or to bind the other party or its affiliates in any respect whatsoever.
(3) Non-Solicitation. To the extent allowed by law, neither party will solicit the employees of the other party during the term of this Agreement or for a period of one year thereafter.
(4) No Assignment. Your rights and obligations under this Agreement shall not be transferred or assigned directly or indirectly without the prior written consent of Sage, whether by merger, acquisition or otherwise.
(5) Severability. If any provision of this Agreement or portion thereof is determined by a court of competent jurisdiction, or declared under any law, rule or regulation of any government having jurisdiction over the parties hereto to be invalid, illegal or otherwise unenforceable, then such provision will, to the extent permitted by the court or government not be voided but will instead be construed to give effect to its intent to the maximum extent permissible under applicable law and the remainder of this Agreement will remain in full force and effect according to its terms.
(6) Applicable Law, Jurisdictional Matters. Except as otherwise agreed to in writing by the parties, this Agreement shall be exclusively governed by and construed in accordance with the laws of the local jurisdiction in which Sage is located, without giving effect to its conflict of laws principles. The Federal, State or Provincial courts in this local jurisdiction shall have exclusive jurisdiction for disputes arising out of this Agreement. You expressly consent to (i) the jurisdiction of such courts; and (ii) service of process being effected upon You by a nationally known courier sent to the address You provide Sage in conjunction with Your subscription for Service, as may be changed from time to time by written notice actually received by Sage. Unless prohibited by the law of Your jurisdiction, You waive any requirement that service of process or of any documents be made upon You pursuant to the provisions of the Hague Convention. The official language of this Agreement shall be English and all reports, notices and communications shall be in the English language. For Quebéc, les Parties conviennent et exigent expressément que ce Contrat et tous les documents qui s’y rapportent soient rédigés en anglais.
(7) Force Majeure. Except for payments due hereunder, neither party is responsible for any failure to perform due to causes beyond its reasonable control (each a "Force Majeure") including, but not limited to, acts of God (such as fire, flood, storm, earthquake), wars, hostilities, acts of terrorism and/or other intentional, malicious acts, revolutions, riots, civil commotion, national emergency, embargoes, epidemics, force of nature, explosion, any law, proclamation, regulation, ordinance or other act or order of any civil or military authorities, accidents, breakdown of equipment or network components not under the control or responsibility of the party asserting Force Majeure, shortages of materials, fuel or energy crises, labor disputes, or denial of or delays in processing of export license applications. The time for performance will be extended for a period equal to the duration of the Force Majeure, but in no event longer than sixty (60) days.
(8) Waiver. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver, or continuing waiver, of such rights. Rights may only be waived hereunder in a writing signed by both parties.
(9) Entire Agreement; Amendment. This Agreement and its Exhibits or Addenda, if any, are the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersede and replace any and all prior or contemporaneous agreements, communications, representations and understandings (both written and oral) regarding such subject matter. Except as expressly provided herein, this Agreement shall only be modified by a written document executed by both parties.
(10) Notices and Electronic Communications. All notices permitted or required under this Agreement may be sent by e-mail, fax, express mail, mail, or registered mail to the e-mail address, fax number, or address most recently provided and will be effective upon transmission. Evidence of successful transmission shall be retained.
U. SERVICE LEVEL GUIDELINES
(1) Capitalized Terms. Capitalized terms in this Section U have the meanings set forth in Section U(6) below or, if not defined below, the meanings set forth in Sections A through T, above.
(2) Efforts to Ensure the Sage System is Operative. Sage shall use reasonable commercial efforts to ensure that the Sage System is Operative. In the event the Sage System becomes inoperative, Sage will exert reasonable commercial efforts to restore Service as quickly as possible, including utilizing other data centers available to Sage if possible. Sage has no responsibility for matters within Your control which may impair Your ability to access the Services or the Sage System, including without limitation (a) Your hardware, network components and infrastructure, (b) any software running on Your hardware (other than the Client Software), and (c) Your connection to the Internet.
(3) System and Application Program Updates. As part of normal operations and in its sole discretion, Sage will perform necessary upgrades, service pack implementations and fixes to both system and application programs as they become available. Where possible and within reasonable limits, You will have the opportunity to determine the time and date to upgrade Your Software. Sage strongly advises You to upgrade Your Software to an Updated Version to ensure You have the latest technology in place. Support for the Software is only available if Your Software is an Updated Version or a supported prior version as described in Section K.
(4) Performance Shortfall. If a Performance Shortfall occurs, You will be eligible for a credit against Your Monthly Subscription Fee in the amount set forth in the table below. You may claim this credit in writing or by email within seven (7) days after the end of the Month during which the Performance Shortfall occurs. Your right to claim a credit expires at the end of the seven-day period.
|90.0% - 97.9%
|85.0% - 89.9%
|84.9% or less
(5) Backups. As part of Sage System procedures, Sage performs daily backups to tape or other available devices and may be stored in on-site or off-site locations.
"Emergency Downtime" means a cessation of Your access to the Sage System caused by the execution of emergency maintenance on the Sage System for an urgent and unexpected condition. Notwithstanding the exercise of commercially reasonable precautions, "Emergency Downtime" may include without limitation preventing (a) the imminent loss of data, or (b) the introduction or reproduction of a virus, worm or other malicious application. The hours associated with this "Emergency Downtime" shall not be counted as "Unscheduled Downtime" so long as they occur between the hours of 8:00 PM to 5:00 AM PST.
"Hours of Operation" means the total number of hours in any Month. For example, in a 31-day Month, Hours of Operation would be 744 (31 X 24).
"Month" means Your monthly billing cycle under the Subscription Agreement. The Billing Date of the Subscription Agreement is the first day of each calendar month, and each calendar month is considered a Month hereunder.
"Monthly Unscheduled Downtime" means the total amount of hours of "Unscheduled Downtime" during any Month.
"Monthly Uptime" means the percentage calculated as 100% less the ratio (expressed as a percentage) of Monthly Unscheduled Downtime to Hours of Operation, rounded to the nearest one-tenth percent (0.1%). For example, if Monthly Unscheduled Downtime is 12 hours and Hours of Operation is 744 hours, Monthly Uptime would be 98.4% (100% - (12 / 744)).
"Scheduled Downtime" means a cessation of Your access to the Sage System for reasonable purposes of software installation by Sage or its agents, or changes or maintenance to operating systems or hardware platforms by Sage or its agents. Sage shall notify You of "Scheduled Downtime" not less than 5 days prior to the start of any "Scheduled Downtime". The hours associated with "Scheduled Downtime" shall not be counted as "Unscheduled Downtime" so long as they occur between the hours of 8:00 PM to 5:00 AM PST.
"Operative" refers to the state of the Sage System when delivering Services in accordance with these Service Level Guidelines, subject to Scheduled Downtime, Emergency Downtime, and Force Majeure.
“Performance Shortfall" means Monthly Uptime falling below 98% during any Month.
"Unscheduled Downtime" means the hours of Downtime excluding "Emergency Downtime" and "Scheduled Downtime" executed during their prescribed time periods.
V. SAGE CUSTOMER CONTACT
If You have any questions concerning this Agreement, please call 800-253-1372 or write to us at: Sage Software Canada, Ltd., 13888 Wireless Way, Suite 120, Richmond, British Columbia, Canada, V6V 0A3.
Copyright ® 2012 Sage Software, Inc. All rights reserved. (060111/42968-3)