Software as a Service (SaaS) End User License Agreement
IMPORTANT – READ CAREFULLY
THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE (“YOU”) AND Process Fusion Inc. (“PFI” or “We”). BY DOWNLOADING, INSTALLING AND USING THE SOFTWARE (“Software” or “SaaS”), YOU ACCEPT THE SOFTWARE AND AGREE TO THE TERMS OF THIS AGREEMENT. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE PROMPTLY EXIT THIS AGREEMENT WITHOUT TRYING TO INSTALL THE SOFTWARE. THIS AGREEMENT SHALL APPLY ONLY TO THE APPLICATION SUPPLIED BY PFI HEREWITH, REGARDLESS OF WHETHER OTHER APPLICATIONS ARE REFERRED TO OR DESCRIBED HEREIN.
“Process Fusion Inc.” or “PFI” or “We” means Process Fusion Inc. registered at 3250 Bloor Street West, Suite 1000, East Tower, Toronto, Ontario M8X 2X9 Canada.
“Licensor” means Process Fusion Inc.
“Software” or “SaaS”, means Software as a Service that is licensed on a subscription basis (based on a user account or a system process) and is centrally hosted by PFI.
“A license” means the user account or a system process that uses the Software.
“A user” or “An end user” or “Customer” or “You” means whoever accesses or uses the SaaS related services (based on a user account or a system process) with or without paying the service fee.
“Parties” means both Customer and PFI.
“Service” means any services provided by Process Fusion Inc. to you.
“Try”, “Proof of Concept” or “Pilot” means using the service, with the purpose of evaluating, for free or with a nominal fee. PFI reserves the rights to limit the features as needed.
“Intellectual Property” means the Confidential Information, and any trade secrets, copyrights, inventions, works, Trade-marks, logos, designs, distinctive names, commercial symbols, domain names, materials (including but not limited to User Documentation, books, pamphlets, manuals, questionnaires, checklists, bulletins, technical bulletins, memoranda, administration bulletins, business processes and best practices, presentation templates, training materials, memoranda, videos, tapes, charts, letters, notices or other publications or documents prepared by or for Process Fusion Inc., as may be modified from time to time) and insignia developed, owned, or provided by Process Fusion Inc. in connection with this Agreement.
Limitation of Liability
PFI and its affiliates, (collectively, the “Licensor”) make no representations or warranties with respect to the Software and specifically disclaim any express or implied warranties of merchantability, title, or fitness for a particular purpose. Licensor will not be responsible for any data loss that might result from Implementing the Software including but not limited to any special, indirect or consequential damages whatsoever resulting from the loss of use, data or profits, arising out of or in connection with the use or performance of the Software. Licensor strongly recommends a backup of your system be made before installing and/or using the Software. You accept all responsibility for damages, direct or indirect, resulting from, but not limited to, the use of the Software. In any case, Licensor’s entire liability under any provision of this EULA shall be limited to the amount actually paid by you for the Software.
The Software is protected by copyright laws and international copyright treaties and other laws regarding trade secrets and other intellectual property rights. Licensor retains all copyrights and other intellectual property rights to the Software.
Grant of License
Subject to the terms and conditions of this Agreement, Process Fusion Inc. grants to you and you accept, a non-exclusive, non-transferable, limited license to use of the Software. The license for the Software may not be shared or used concurrently.
General Use of Services
You agree not to use the service to rent use the service for service bureau or time-sharing purpose or in any other way allow third parties to exploit the service. You agree not to charge a fee to any party to for access to or use of the service.
You shall not assign, transfer or sub-license your rights under this Agreement except as provided for under this Agreement.
You agree that the services are to be provided on an “as is” and “as available” basis. You use the services at your own risk. To the fullest extent permissible pursuant to applicable law, PFI disclaims all warranties of any kinds, whether express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose or non-infringement.
You agree to use the service only for lawful purposes and not for unauthorized copying, duplication, distribution, display or modification of any material or information protected by copyright or trademark or otherwise lawfully restricted. You will not use the services for any purpose that is contrary to applicable laws, or which is a nuisance. You agree not to transmit any material that is unwanted, threatening, abusive, obscene, discriminatory (including, without limitation, “hate” literature directed at any identifiable group) or in contravention of any law. You agree not to undertake mass-mail broadcasts of electronic mail (e-mail) or other means of electronic communications with the intent of sending unsolicited advertising to other users of the Internet.
You will be responsible for the actions and activities of any party who uses the Services whether or not such person used the identification and password with the User’s consent or knowledge.
A waiver by either party of any term or condition of this Agreement will not be deemed a waiver of the term for the future, or of any subsequent breach of it.
The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision. Such invalid or unenforceable provision shall be deemed to be severed from this Agreement and the Agreement shall be construed as if such provision was never inserted into it.
PFI will provide the services using currently available technology and will avoid using any hardware, software or methods known to threaten User security. Beyond that, PFI makes no warranties of any kind, whether expressed or implied, in relation to the accuracy, safety or quality of the services except for those outlined in this agreement. PFI implements reasonable administrative, technical, and physical measures designed to protect the security, confidentiality, and integrity of Customer Data. However, the parties acknowledge that no security measures are 100% effective, and that security threats and risks may emerge from time to time. The Customer shall be solely responsible for the content and accuracy of the data and shall ensure that it complies with all applicable laws, regulations, and industry standards. PFI shall not be liable for any unauthorized access, disclosure, alteration, or destruction of the data to the extent caused by the customer’s acts or omissions. The Customer acknowledges and agrees that it is solely responsible for the use of the service and for implementing any additional security measures, backups, or redundancy arrangements that it deems necessary or appropriate for its business operations. PFI may assist the Customer in complying with its security obligations under this Agreement, but such assistance shall not relieve the Customer of its responsibilities hereunder. The parties acknowledge that the allocation of responsibilities and risks set forth in this section represents a reasonable and fair balance of their interests and reflects the essential basis of the bargain between them. The Customer agrees to indemnify and hold harmless PFI, their subsidiaries, successions, assigns, officers, directors, employees and agents from any and all claims resulting or arising from this Agreement, the User’s use of the Services and any breach of this Agreement by the User whether or not caused by the negligence or omission of PFI or those for whom it is responsible at law.
Other Restrictions and Limitations
Customer is not entitled to reverse-engineer, disassemble or decompile the Software or in any other way attempt to investigate and discover the source code or the structural framework of the Software except and only to the extent as provided for by applicable law. Customer is not entitled to sell, assign, distribute, license, rent, lease, lend out or in any other way transfer the Software or any rights granted hereto or to disclose the Software to a third party without the prior written consent of PFI. Customer agrees that unless otherwise agreed upon by PFI in writing, PFI shall have no responsibility for any services with respect to the Software, whether in the nature of training, education, media conversion, installation, modification, support or otherwise.
In the event of Customer’s material breach of this EULA, PFI is entitled to immediately terminate this EULA. Customer may at any time terminate this EULA by informing PFI in writing of Customer’s decision. In case of termination, Customer is under the obligation to stop using the service PFI will delete all data related to the customer from their system upon termination of the contract.
This EULA shall be governed by the laws of the Province of Ontario, Canada and the laws of Canada applicable therein. This EULA is intended to be for the benefit of PFI and its successors and assigns and, therefore, may be enforced directly by said entity, its successors and assigns. Any dispute pertaining to or arising out of this EULA shall be settled by a Court of competent jurisdiction selected by PFI.
The Fair Usage Policy (FUP)
PFI SaaS products offer a multi-tenant service. This means that our service is used concurrently by a number of subscribers. If a single customer places very high demands on the service, it may affect the experience for other users.
The vast majority of our customers use their service considerately and their usage levels during peak hours don’t disproportionately affect the shared network and service capacity. Even though only a very small number of our customers may use the service inappropriately, their activity has the potential to affect the service for others. Our Fair Use Policy manages the inappropriate use and makes sure the service can be used fairly by everyone.
Usage of SaaS is monitored on an ongoing basis. PFI reserves the right to determine what constitutes excessive or unreasonable use, and to make appropriate changes to this policy from time to time. PFI may monitor usage levels of our services to ensure compliance with this policy and may contact customers who exceed reasonable usage limits to discuss appropriate measures.
PFI understands that customers will occasionally have very high volumes of traffic outside of normal usage patterns. In those cases where this traffic can be predicted PFI requests to be informed with as much notice as possible to ensure that service delivery remains consistently high.
It is the express wish of the parties that the agreement and all related documents be drafted in the English language.