SOFTWARE END-USER LICENSE AGREEMENT
This Software End-User License Agreement (the “Agreement”) between YOU and SECURE EXCHANGES Inc., having its head office at 50 Rue du Mistral, Drummondville, Quebec, J2A 0G4 (“SECURE EXCHANGES”) governs the licensing and use of the Software and the Platform (as defined below).
BY PROVIDING YOUR CONSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, EITHER BY CLICKING ON THE “I AGREE” BUTTON OR BY USING A SIMILAR CONSENT MECHANISM PROVIDED BY SECURE EXCHANGES, YOU HEREBY ACKNOWLEDGES THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THAT YOU FULLY UNDERSTAND THEM, AND THAT YOU AGREE TO BE BOUND BY THEM. IF YOU DO NOT ACCEPT TO BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT, PLEASE CEASE ALL USE OF THE SOFTWARE AND THE PLATFORM.
IF YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT CORPORATION OR OTHER LEGAL ENTITY TO THIS AGREEMENT AND IN THIS CASE, “YOU” AND “YOUR” SHALL REFER TO THE COMPANY, CORPORATION OR OTHER LEGAL ENTITY.
This Agreement is effective as of the date YOU agree to the terms and conditions as set forth in this Agreement or from the moment YOU access the Platform or download and install the Software or any of its components on your workstation, central processing unit, server, personal computer, cellular phone or other similar device or system (“Hardware”) or YOU use any end-user documentation provided by SECURE EXCHANGES with the Software or the Platform (“User Documentation”), whichever occurs first (the “Effective Date”).
The right to use the Software and the Platform is conditional to YOU accepting the terms and conditions of this Agreement. If YOU has not accepted the terms and conditions of this Agreement prior to access, installation or use of the Software and/or the Platform, YOU are in breach of the intellectual property rights of SECURE EXCHANGES in and to the Software and the Platform.
Use of the Software and Platform and the content YOU provide. YOU represent that YOU will use the Software and Platform and your user account (once activated) for the purposes permitted by this Agreement and in accordance with all applicable laws. YOU declare that the content and information that YOU provide, disclose or make available under this Agreement, including information provided through your user account does not violate any law or third-party rights, including intellectual property rights. YOU also declare that all information entered into your user account is at all times true, accurate and complete. YOU hereby assume full responsibility for the content YOU transmit, download, modify or display during your use of the Software and the Platform and that SECURE EXCHANGES will not, under any circumstances, be liable to YOU or any third party as it relates to the above.
- “Affiliate” shall have the meaning given to that term in the Canada Business Corporations Act or any replacement or supplemental Law in effect from time to time, which meaning shall, mutatis mutandis, apply to partnerships, general partnerships and limited partnerships;
- “Agreement” has the meaning ascribed to it in the preamble and includes all schedules attached hereto;
- “Claim” or “Claims” means, as the case may be all loss, damage, cost, expense, disbursement, penalty, fine, claim, demand, action, proceeding, legal hypothec, encumbrance, statutory obligation, liability, suit, judgment, award, determination, adjudication, unpaid tax of any kind, cost of investigation and any type of fee (including reasonable legal fees and reasonable attorney costs);
- "Code” means any software code, whether object code or source code, provided by SECURE EXCHANGES and installed on your Hardware;
- “Confidential Information” means all information of a confidential nature, in any form or medium, which YOU or SECURE EXCHANGES, directly or indirectly, acquires from the other party to the Agreement, including any information concerning or relating to YOU or SECURE EXCHANGES, including information relating to such party’s business, affairs, financial position, assets, operations, activities, prospects or trade secrets, together with all analyses, evaluations, compilations, notes, studies or other documents prepared by YOU or SECURE EXCHANGES, as the case may be, or their respective Personnel, containing or based upon such information;
- “Event of Force Majeure” means an event or circumstance, not reasonably within the control of a party to the Agreement, which restrains or delays the performance by a party of its obligations under the Agreement and, which by the exercise of due diligence and planning, the party was, or is, unable to prevent or overcome;
- “Including” or “Includes” means “including (or includes) without limitation;
- “Law” or “Laws” means collectively all applicable federal, provincial, municipal and local regulations, orders, rules, and laws, decision by regulatory bodies and common law principles, as may apply now or in the future and any other governmental requirements, work practices and procedures prescribed by law and related to the Software or the Platform or otherwise to be performed pursuant to this Agreement;
- “License Term” shall be for the period as set out in Section 3 below;.
- “Order Forms” means the online form or any written proposal, purchase order or other document confirming an order association with the Software or the Platform and on which at least one of the following type of information is included: (i) the type of license purchased, including the type of package and the number of emails credited to the message store associated with Your user account; (ii) the applicable fees; (iii) the applicable maintenance fees and if applicable SECURE EXCHANGES technical support fees in relation to the Software and the Platform; and (iv) if pertinent, the description of the professional services that SECURE EXCHANGES will provide in relation to the Software and the Platform, including professional service related to the installation of the Software;
- “Personnel” means a party’s directors, officers, employees, contract personnel, representatives, advisors and agents, which meaning shall, mutatis mutandis, apply to Affiliates of a party;
- “Platform” means the secure technology platform for transmitting and receiving electronic messages, accessible from the Website, including all User Documentation provided by SECURE EXCHANGES in connection with the Platform;
- “Service Pack” means a fix for critical errors (e.g. V1.1.1 -> V1.1.2);
- “Software” means the Code of the Software known and designated as Secure Exchanges plug-in, which may be integrated with commercially available third-party software (including, for example, Office 365, Outlook and Keepass) to secure sending, transmitting and receiving of electronic messages and includes: (i) all User Documentation provided by SECURE EXCHANGES in connection with the Software and (ii) any Updates or Upgrades provided to YOU at the discretion of SECURE EXCHANGES, but excluding any Third Party Software;
- “Third Party Software” means software programs provided by a third party, with or without charge, which are sets of source or object code, and which are subject to the provisions of their own respective license agreements;
- “Update” means bug fixes, workarounds, patches, or maintenance updates in respect of the Software or the Platform;
- “Upgrade” means a periodic major release that may include new functionality and support of new platforms, such as new operating systems and new versions of the Software or the Platform and may collectively include previous Service Packs and Updates (e.g. V1.0 -> V2.0);
- “Website” means SECURE EXCHANGES website, accessible at secure-exchanges.com and any other website accessible through any URL link ending in the first/second level domain names *.secure-exchanges.com and their mobile link.
- License Grant. Subject to the terms and conditions of this Agreement, SECURE EXCHANGES hereby grants YOU, for the License Term as defined in Section 3 below, a non-exclusive and non-transferable right to: (1) install the Software allowing You to send secure emails from a maximum of three (3) separate sources (ex: Outlook, Office365, Website), or any other maximum number of sources agreed to at the time of your order; and (2) to access and use the Software and Platform in accordance with the provisions of this Agreement.
Except as specifically permitted in this Agreement, YOU shall have no right to copy, change, alter, amend, reverse engineer, decompile, disassemble, publish, disclose, display, rent, resell, lease, share, lend or otherwise make available the Software or Platform (in whole or in part) to third parties, including as part of offerings in the nature of software-as-a-service, time share or service bureau. YOU shall also ensure that your employees, consultants and other representatives comply with this Agreement. No title to any of the intellectual property rights in the Software or the Platform are transferred, in whole or in part, to YOU and SECURE EXCHANGES hereby retains title to all copyright, trademarks, trade names and other intellectual property rights in the Software and the Platform and shall continue to have the right to license the Software and the Platform as it sees fit. YOU shall not transfer, assign or pledge its rights and obligations hereunder without the written consent of SECURE EXCHANGES. YOU shall not remove or obscure any copyright notice or other proprietary or restrictive notice or legend contained or included in the Software and/or the Platform.
- License Term. The license granted herein is effective as of the Effective Date and will continue untill whichever of the following events occurs first (the “Term”):
- The end of your prepaid subscription period or your cancellation of an automatically renewable license (in particular by means of an automatic debit); or
- If your license does not automatically renew, the date on which the email message bank associated with your user account is empty; or
- The date YOU destroy any copy of the Software or YOU cease to use the Software or Platform; or
- The date that this Agreement is terminated in accordance with its terms, most notably due to a default of payment on your part.
- Third Party Software. YOU are solely responsible to pay for and obtain the necessary licenses for all Third Party Software required for the proper functioning of the Software and the Platform. The installation, access and use of such Third Party Software are subject to the terms and conditions prescribed by the relevant third parties. YOU are solely responsible to review and abide by the terms and conditions applicable to the use of Third Party Software. To the fullest extent permitted by applicable Laws: (i) SECURE EXCHANGES shall have no liability, regardless of the form of action, whether in contract, tort or otherwise, in connection with your installation, access or use of such Third Party Software; and (ii) SECURE EXCHANGES offers no warranty over such Third Party Software and all express or implied warranties are hereby disclaimed.
- Warranty. SECURE EXCHANGES warrants that at the time YOU first install the Software or at the time YOU first access the Platform, the Software and the Platform (excluding the performance of all Third Party Software) will substantially conform to the technical specifications set forth in the Order Form or in the User Documentation published by SECURE EXCHANGES. YOU will have forty-eight (48) hours from the first installation or first access to disclose to SECURE EXCHANGES any programming error affecting the Software or Platform. SECURE EXCHANGES entire liability and your exclusive remedy will be at the discretion of SECURE EXCHANGES, to attempt to correct or find solutions to errors or to refund the license fees YOU paid for the relevant license.
YOU HEREBY EXPRESSLY AGREES AND ACKNOWLEDGES THAT, EXCEPT AS PROVIDED IN SECTION 5, THE SOFTWARE AND PLATFORM ARE PROVIDED “AS IS” AND SECURE EXCHANGES MAKES NO REPRESENTATIONS OR WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, IN RESPECT OF THE SOFTWARE, THE PLATFORM OR ANY SERVICES PERFORMED BY SECURE EXCHANGES, ITS AFFILIATES, AGENTS OR PERSONNEL, INCLUDING STATUTORY OR IMPLIED WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED, PROVIDED THAT THIS DISCLAIMER OF LIABILITY AND EXCLUSION IS LIMITED SO AS NOT TO APPLY IN ANY JURISDICTION IN RELATION TO A WARRANTY WHICH IS LEGALLY INCAPABLE OF EXCLUSION IN SAID JURISDICTION.
- Security. Although the Software and Platform offer an encryption level that complies with industry recognized superior standards, in order to secure email exchanges, it remains your responsibility to protect your Hardware and your computer network, especially against bypassing security measures, loss of confidentiality, interruptions in communications links between Hardware components, and from other damage to your network and to systems which your network provides access to and caused by the perils to which networks are exposed. YOU are solely responsible for isolating the Software, Platform and data, for using anti-virus software and for taking measures to ensure that if the Software, Platform and data are contaminated or infected, they will not damage your data or your system.
- Termination. Either party may terminate this Agreement if: the other party is in default of any obligations hereunder and such default is not remedied within thirty (30) days of receipt of written notice thereof; (b) the other party is adjudicated bankrupt; (c) the other party makes any assignment for the benefit of creditors; (d) proceedings are instituted by the other party seeking relief, reorganization or rearrangement under any Laws relating to insolvency; (e) a receiver, liquidator or trustee is appointed in respect of any property or assets of the other party; or (f) an order is made for the liquidation, dissolution or winding up of the other party. Despite to foregoing, SECURE EXCHANGES may terminate this Agreement immediately if: (g) YOU are in default of any provision contained in Article 2; or (h) YOU are in default of any of your payment or confidentiality/non-disclosure obligations set forth in this Agreement and fail to cure said default within fifteen (15) days from service of notice of default.
- Effects of Expiration or Termination. In accordance with Section 3 and Section 7 of this Agreement, upon expiration or termination of the Agreement, YOU shall promptly eliminate or otherwise remove all electronic copies of the Software from all Hardware, all other copies of Software and User Documentation in your possession and discontinue all use of the Software and Platform. At SECURE EXCHANGES request, YOU must certify that the above actions have been performed. In addition, in the event of termination or expiration of this Agreement, no refund in accordance with Section 9 of this Agreement will be issued to YOU.
Notwithstanding the foregoing, in situations outlined in Sections 3(i) and 3(ii) or if YOU terminate the Agreement in accordance with Section 7, the Agreement will continue to produce it effects until whichever of the following events occurs first; i) the end of your prepaid subscription period (in particular by means of automatic debit); or (ii) in cases where the license is not automatically renewable, on the date where your email message bank associated with your user account becomes empty.
- Closing the Account. At the end of the Term of this Agreement, SECURE EXCHANGES will have the right to irrevocably terminate and delete your user account and remove any associated content.
- Payment. In consideration of the license granted in Article 2, YOU shall pay SECURE EXCHANGES the license fees set out in the Order Form. Unless otherwise indicated in the Order Form, all license fees designated in the Order Form are payable in Canadian Dollars (CAD) and are due at the time of the original purchase of the license or its renewal as the case may be. YOU are solely responsible for the payment of all sales, use, property, customs, excise, withholding or other taxes (excluding taxes on SECURE EXCHANGES net income), any other charge of any kind or nature that is levied or imposed by any governmental or regulatory authority on your license purchase; these fees are exclusive of the license fees. If applicable, Shipping and handling charges are also exclusive of the license fees and added to the invoice amount. Amounts not paid by YOU when due under any provision of the Agreement, shall bear interest from the date payment was originally due to and including the actual date of payment at the rate of five per cent (5%) per annum.
When the initial Order Form indicates that the license is automatically renewable, the message store associated with your user account will be automatically refilled, within a reasonable time frame and in accordance with the package chosen in the Order Form, when it is empty, and Payment will be automatically made using the payment method associated with your user account. As it relates to a limited free trial of the Platform offered by SECURE EXCHANGES and at its discretion, it is agreed that the license provided for in Section 2 is granted without monetary compensation and will expire upon the materialization of any of the following events; i) the number of free electronic messages included in the trial is exhausted; or ii) the expiration of the trial period. YOU understand and accept that your Internet service provider or wireless provider ‘s usual rates and charges will apply depending on your Hardware usage, including, for example, your data usage.
- Maintenance and Technical Support. SECURE EXCHANGES’ customer service department allows YOU to report to SECURE EXCHANGES any incidents related to the use and operation of the Software or Platform and to track technical support emails received by SECURE EXCHANGES. Technical Support Center representatives are trained to provide bilingual service (French and English) and are available from Monday to Friday, 9:00am to 5:00pm ET.
The technical support center can be reached by email at the following address: firstname.lastname@example.org
A customer service representative will respond as soon as possible when YOU submit a question or report an incident to SECURE EXCHANGES. SECURE EXCHANGES will make all commercially reasonable efforts to resolve the reported incidents as soon as possible. In certain cases, the resolution of an incident may require a modification of the Software and/or Platform and SECURE EXCHANGES, at its sole discretion, will issue an Update or Upgrade. Other than to correct programming errors recognized by SECURE EXCHANGES, SECURE EXCHANGES has no obligation to provide YOU with any Software or Platform Updates or Upgrades. In the event that SECURE EXCHANGES does provide YOU with an Update or Upgrade, YOU are responsible for its immediate installation to ensure the optimal and secure use of the Software and Platform.
- Misuse. Any warranties given hereunder will not apply to: (i) any programming interface provided by SECURE EXCHANGES; or (ii) if the Software or the Platform is not used in accordance with SECURE EXCHANGES instructions, User Documentation or in breach of the provisions of this Agreement; or (iii) if the Software has been altered, modified or converted by YOU or a third party without the prior written approval of SECURE EXCHANGES; or (iv) if the warranty claim relates to the Hardware on which the Software or Platform operated malfunctions; or (v) part or all of the Software or the Platform becomes inoperative as a result of an Event of Force Majeure.
- Limitation of Liability. The total and aggregate liability for Claims, which YOU may have against SECURE EXCHANGES or its Affiliates, agents and Personnel, under this Agreement or in any way related to the Software or Platform, whether these Claims arise in contract, tort, negligence or under any other theory of liability, shall be limited, notwithstanding any other provision of the Agreement, to the license fees paid hereunder for the Software license during the previous twelve (12) months.
- Indirect, Consequential and Similar Damages. In no event shall SECURE EXCHANGES or its Affiliates, agents and Personnel be liable for indirect, exemplary or punitive damages or damages for losses of profits, revenue, business, reputation, financing or lost opportunity, whether these damages are considered direct or indirect.
- Confidential Information. Any and all Confidential Information received by a party to the Agreement shall be received in the strictest confidence and shall not be: (i) disclosed to any third party; or (ii) used in any manner whatsoever directly or indirectly, for any purpose other than for the purposes of this Agreement, except with the prior consent of the party who provided the Confidential Information, which consent may be arbitrarily withheld. For clarity, YOU acknowledge that the Software and Platform constitutes Confidential Information owned and controlled by SECURE EXCHANGES.
- Export Restrictions. This Agreement is expressly made subject to any Laws related to export of the Software and of the Platform whether in force in Canada or in any other jurisdiction. Notwithstanding anything contained in this Agreement to the contrary, YOU shall not export or re-export, directly or indirectly the Software or the Platform to any country to which such export or re-export is restricted or prohibited by Law, or as to which any government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval.
- License Keys and Control Mechanisms. SECURE EXCHANGES reserves the right to use a hardware lock device, license administration software, and/or a license authorization key to control access to the Software and the Platform.
- Notices. Notices sent to SECURE EXCHANGES shall be given in writing and shall be addressed to the address set forth in the preamble of this Agreement or by email to: email@example.com. Notices may be delivered in person, by courier or email.
With respect to notices sent to YOU, YOU consent that SECURE EXCHANGES can communicate with YOU in any of the following manners: (i) through your user account; (ii) by email addressed to the email address YOU provided to SECURE EXCHANGES and which is associated with your user account; or (iii) though the cell phone number that YOU provided to SECURE EXCHANGES and which is associated with your account.
- Survival. In addition to the provisions of the Agreement which by their nature survive the termination or expiry of the Agreement, the following Articles shall survive termination or expiration of the Agreement: Articles 1 (for interpretation purposes), 4, 5, 11, 12, 13, 14, 16, 17, 18, 19 and 20.
- Governing Law.
21.1 Governing Law and Jurisdiction. The Agreement shall be governed by and construed in accordance with the Laws of the province of Quebec. The parties agree to accept and submit to the exclusive jurisdiction of the courts of the province of Quebec, district of Montreal. The Convention of Contracts for the International Sale of Goods shall not apply to this Agreement nor to any dispute arising therefrom.
21.2 Forum. The parties waive any objection based on venue or forum non conveniens with respect to any Claim arising under the Agreement or in any way connected to or related to or incidental to your obligations and the obligations of SECURE EXCHANGES in respect of the Agreement or any related transactions, in each case whether now existing or hereafter arising and whether in contract, tort, civil liability, or other legal theories or specific Laws.
- General Matters.
22.1 Assignment. Neither party may assign the Agreement without the prior written consent of the other party, which consent may not be unreasonably withheld. Notwithstanding the foregoing, SECURE EXCHANGES may assign the Agreement, without having to obtain your consent to any of its Affiliates or to any third party that amalgamates or merges with SECURE EXCHANGES or which acquires all or substantially all of the assets of SECURE EXCHANGES. Subject to the foregoing, the Agreement shall enure to the benefit of and be binding upon the parties and their respective successors and, in the case of SECURE EXCHANGES, its assigns.
22.2 Severability. If any term, covenant or condition of this Agreement, to any extent, is invalid or unenforceable, the remainder of this Agreement, other than those provisions held invalid or unenforceable, shall not be affected and each remaining term, covenant or condition of this Agreement shall be separately valid and shall be enforceable to the fullest extent permitted by Law.
22.3 Entire Agreement. The Agreement constitutes the entire agreement between the parties and shall supersede and replace any and all prior agreements between the parties with respect to its subject matter.
22.4 Amendments. No amendment to the Agreement shall be binding on the parties unless made in writing and duly accepted by the authorized representatives of both parties. SECURE EXCHANGES reserves the right to modify the terms of this Agreement at any time and all modifications will be brought to your attention by means of a notice sent in accordance with the terms of section 17. If YOU are not in agreement with the modifications, YOU may terminate this Agreement prior the modifications coming into force.
22.5 No Waiver. A party’s failure to insist on performance of any term, condition or instruction or failure to exercise any right or privilege, or its waiver of any breach or default shall not thereafter waive any such term, condition, instruction, right or privilege.
22.6 Exclusions. All request for proposals, purchase order, tender documents or other such similar documents that YOU issue to SECURE EXCHANGES are expressly rejected and shall not form part of the Agreement..
22.7 Event of Force Majeure. If, due to an Event of Force Majeure, either party cannot fulfill its obligations under the Agreement, then that party’s obligations shall be suspended during the period of time and to the extent that the Event of Force Majeure continues to prevent the performance of its obligations.
22.8 Independent Contractor. SECURE EXCHANGES is an independent contractor and no your agent unless otherwise provided in the Agreement.
22.9 Software Audit. SECURE EXCHANGES shall have the right to visit your place of business during business hours upon reasonable prior notice in order to verify that the Software and Platform are being used in compliance with this Agreement.