DOPROCESS LP END USER AGREEMENT
Revised November 14, 2020
1. Program: The “Program” means the software program specified in the accompanying order form (the “Order Documentation”) or any other software provided to you by Do Process LP (“DoProcess”) not covered expressly by a different agreement and includes the software and all accompanying data files and documentation, any updates to the Programs that may be provided from time to time by DoProcess, and all copies of any of the foregoing.
2. Grant: Subject to payment of the applicable fees and the limitations and restrictions set forth in this agreement, DoProcess grants a non-exclusive license to use the Program to the firm or individual by whom or on whose behalf this copy of the Program was licensed, being the named licensee in the Program (the licensee is identified, among other places, in the About dialog) (“Licensee”) for the term of this agreement. Licensee will not use or permit the Program to be installed on more than one computer unless each copy so installed is a licensed copy of the Program. In the case of the network version of the Program, Licensee will not permit the Program to be accessed by more than the maximum number of users or workstations licensed, as set out in the About Dialog.
3. Software Key: The Program is copy-protected. Upon installation, a validation or id number (“Key”), as obtained from DoProcess, must be entered to activate various essential functions within the Program. This Key is valid only for the computer or disk drive for which it was originally provided. If the Program is to be transferred to another computer or disk drive, DoProcess may require verification (either in writing or by way of de-installation code number generated by the Program) that the original copy has been deactivated.
4. Ownership: DoProcess licenses but does not sell the Program. DoProcess retains title and all ownership rights (including all intellectual property rights) in and to the Program. This agreement in no way transfers any rights of ownership or license to the Program or any of the features or information in it, except as specifically stated. All bug reports, ideas for enhancement and other feedback provided by Licensee to DoProcess will be the property of DoProcess, and Licensee hereby assigns these items (including all intellectual property rights therein) to DoProcess, and DoProcess may use such information for any purpose it sees fit. All rights not expressly granted are reserved to DoProcess. Licensee must not remove, modify or obscure any copyright, trademark, patent or other proprietary rights notices that are contained in or on the Program or any part of it.
5. Pay-Per-Use Fees: Additional fees may apply in order to initiate certain transactions (including searches and purchase, sale, and mortgage transactions) or to create certain records (including estate, will, or corporate records) using the Program (each a “Paid Use”). These additional fees are not included in the license fee paid for the license granted under this agreement and are the responsibility of Licensee. These additional fees are subject to change from time to time at the discretion of DoProcess.
6. Paid Use Restrictions: Licensee will only use each Paid Use transaction or record in relation to the single transaction or entity for which it was originally purchased. Licensee is required to create a new Paid Use transaction for each search and purchase, sale, mortgage transaction, or similar transaction and a new Paid Use record for each estate, will or corporate record processed using the Program. Licensees that do not abide by this condition are subject to having their license suspended or terminated immediately by DoProcess.
7. Third Party Terms: Licensee acknowledges that Licensee may be required to agree to additional third party terms and conditions not set out in this agreement in order to take full advantage of certain features of the Program and certain services that may be facilitated by the Program.
8. Term: This agreement is effective until terminated. Licensee may terminate this agreement at any time but this agreement will terminate immediately if Licensee fails to comply with any term or condition herein, or if Licensee gives notice to DoProcess that Licensee wishes to terminate the purchase order during any evaluation period specified in the Order Documentation. DoProcess may terminate this agreement immediately if it ceases to have the necessary third party licenses to provide the Program or if a supplier threatens to terminate such a necessary license due to Licensee conduct or otherwise. Sections 4, 12, 13, 14 and 17A, and the obligation to pay transaction fees that were incurred prior to termination will survive termination of this agreement. Upon termination, Licensee will deliver to DoProcess all copies of the Program and any provided storage media, and Licensee will discontinue use of the Program and will cause it to be de-installed from all computers on which it had been installed.
9. Support: If Licensee has purchased support or is otherwise entitled to support as set out in the Order Documentation, then during the support period:
(a) DoProcess will provide Licensee, during DoProcess’ normal business hours, with a reasonable level of telephone hotline support and of online remote assistance support at no additional cost (excluding any third party connection charges), provided that Licensee has installed up to and including the most recently made available Program updates, such support is limited to troubleshooting and Program operation assistance and does not include customization, consulting, data conversion or correction, or other services, or assistance with problems not attributable to the Program. If in the course of providing such support DoProcess is required to access, collect, use, disclose, dispose of or otherwise handle information of or about individuals that is subject to privacy laws, DoProcess will do so: (i) for the purpose of providing Program support; and (ii) in accordance with privacy laws and the other terms of this agreement; and
(b) if DoProcess, at its sole discretion, releases commercially available updates to the Program (excluding new full version releases of the Program), the updates will be made available to Licensee, in a manner determined by DoProcess, at no additional cost (excluding any third party connection charges) and on the same terms herein (unless such other terms are provided to Licensee with the update).
10. Event Information: Licensee agrees that the Program may collect and send statistical information about the occurrence of certain events within the Program relating to Licensee’s use of the Program to DoProcess (“Event Information”) and that DoProcess may use this information for its internal business purposes, including for billing, to measure and understand the behaviour and preferences of our customers, to troubleshoot technical problems, to enforce this agreement, and to ensure proper functioning of the Program. Licensee warrants that Licensee will not interfere or attempt to interfere with the collection and transmission of such information.
11. Backups: Provided that a notice of copyright ownership of DoProcess is reproduced and included with any copy, Licensee may make archival copies of the Program for the sole purpose of backing up the Program to protect against damage to Program files, but Licensee may not otherwise reproduce, modify, transfer, store, transmit, sublicense, distribute, or sell the Program in any form or by any means and nor will Licensee decompile, disassemble or reverse engineer the Program or make any attempts in this regard, except to the extent that such activity is expressly permitted by law.
12. Program is Confidential Information and a Trade Secret: Licensee acknowledges that the Program is proprietary to, is the confidential information of, and a valuable trade secret of, DoProcess and is entrusted to Licensee only for the purpose set forth in this agreement. Licensee will treat the Program in the strictest confidence and will not: (i) disclose or provide access to anyone other than Licensee’s employees with a need for access to exercise the license rights conferred under this agreement; or (ii) reverse engineer, decompile or disassemble the Program or any portion of it.
13. Warranty and Disclaimer: DoProcess warrants that the Program will operate substantially in accordance with its documentation and Licensee’s sole remedy under this warranty is for DoProcess to either (at DoProcess’ sole discretion): (i) repair the Program to conform substantially in accordance with its documentation; or (ii) refund the Program’s license fee to Licensee.
14. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND DOPROCESS, ON BEHALF OF ITSELF AND ITS SUPPLIERS, DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM, INCLUDING ANY MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER DOPROCESS NOR ANY OF ITS SUPPLIERS REPRESENT OR WARRANT: THAT THE PROGRAM WILL MEET LICENSEE’S REQUIREMENTS; THAT THE OPERATION OF THE PROGRAM WILL BE UNINTERRUPTED AND ERROR-FREE; OR THE CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY CONTENT OR OTHER INFORMATION PROVIDED THROUGH THE PROGRAM. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM.
15. Limitation of Liability: DoProcess’s liability to Licensee with respect to this agreement and any other obligations related thereto will in all circumstances be limited to direct damages and will not, in the aggregate, exceed $500. In no event will DoProcess or its suppliers be liable for direct (except for DoProcess as set out in the prior sentence) indirect, consequential, exemplary, incidental, special, punitive, or aggravated damages, damages from loss of profits or revenues, failure to realize any expected savings, business interruption, loss of opportunity, or corruption or loss of data, or failure to transmit or receive any data, even if DoProcess has been advised of the possibility of such damages in advance. The limitations on liability in this paragraph will apply irrespective of the nature of the cause of action, demand or claim, including breach of contract (including fundamental breach), negligence, tort or any other legal theory, and will survive a fundamental breach or breaches of this agreement or of any remedy contained herein. For greater certainty, in no event will DoProcess be liable in respect of any third party claim.
16. Amendments: DoProcess reserves the right, at its sole discretion, from time to time, to modify, add, or delete portions of this agreement. DoProcess will notify Licensee (either, at DoProcess’ choice, by: (a) using the contact information provided to DoProcess; or (b) electronic display during use of the Program) of any such revision and Licensee hereby agrees that continued use of the Program after such notice will constitute acceptance and agreement to be bound by the revised agreement.
17. Governing Law: This agreement will be governed by and construed in accordance with the laws in effect in the Province of Ontario, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. Each of the parties irrevocably submits to the non-exclusive jurisdiction of the courts of Ontario for the purpose of any suit, action or other proceeding arising out of this agreement or the subject matter hereof brought by either party or their successors or assigns.
18. Laws. Licensee is responsible for compliance with local laws to the extent they are applicable and Licensee agrees to comply with all applicable laws with respect to its use of any of the program. Licensee is responsible for ensuring its use of any programs and any materials accessible by way of the programs complies with Canada’s Anti-Spam Law (“CASL”), as it may be amended from time to time, and with any other applicable rules and regulations of the Canadian Radio-television and Telecommunications Commission and any similar or replacement body with authority to administer and enforce CASL. DoProcess will hold the Licensee liable and will require Licensee to indemnify DoProcess, its affiliated entities, and any of their respective directors, officers, employees, consultants, agents and suppliers in accordance with the terms of this agreement, for any damage which they may suffer, sustain, pay or incur as a result of the failure of Licensee or by an entity for whom Licensee is responsible to comply with any applicable law, including without limitation, CASL.
21. Open Source Software. If there is any open source software in any program, that open source software is licensed under the terms of the license that accompanies such open source software. Nothing in this agreement limits the Licensee’s rights under, or grants Licensee rights that supersede, the license terms for such open source software.
22. Links. Some links on Programs may enable you to leave a Program and connect directly to other sites or applications. Such linked sites or applications are entirely independent of the Program and will have other terms and conditions applicable to the use of that site or application. DoProcess is not responsible for examining or evaluating, and it does not warrant the offerings of, any of these businesses or individuals or the content of these third party sites. DoProcess does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. DoProcess Is providing these links to you only as a convenience and the inclusion of any link does not imply endorsement of the linked site by DoProcess. You should carefully review privacy statements and other conditions of use of these third party sites. You acknowledge and agree that some of the content available through a Program may be supplied by third parties resident and/or operating outside the Province of Ontario and/or may be hosted on computers located outside of the Province of Ontario.
23. Transition Matters. In the near future, DoProcess will begin transitioning its users from the current software based version of The Conveyancer to a next generation cloud based conveyancing service (“Unity”). In order to give you the best experience possible from the first day you start using the new Unity, DoProcess needs to upload the master documents, configuration files and customer and contact information contained in your existing instance of The Conveyancer Program (“Content”) to your instance of Unity prior to your first use.
(a) Grant. You hereby grant DoProcess the right to access your Content, upload your Content to DoProcess’ servers; and take such steps as necessary to make the Content ready for your use by way of Unity (the “Limited Purpose”). Except as required by law, unless if receives your written permission, DoProcess will not use your Content other than as necessary to achieve the Limited Purpose. For clarity and without limiting the generality of the prior sentence, DoProcess confirms it will not use your Content or derive information from it for any advertising or similar commercial purposes.
(b) Confidentiality. DoProcess shall not disclose the Content to any person except to its affiliates, employees, internal contractors and agents (the “Representatives”) having both a need to know to accomplish the Limited Purpose and an obligation of confidentiality. The foregoing obligation of confidentiality and restrictions on use hereunder shall not apply to Content: (a) known to DoProcess before receipt from the Licensee, without a duty of confidentiality; (b) generally available to the public (or becomes so), unless due to a DoProcess breach; (c) received by DoProcess from a third party without a duty of confidentiality; or (d) is independently developed by or for DoProcess without any use of the Content. It shall not be considered a breach of this Agreement if DoProcess discloses Content as required by law; provided that DoProcess: (a) where permitted by law, gives Licensee written notice promptly upon receipt of a disclosure requirement and before the disclosure is made; (b) takes reasonable actions and provide reasonable assistance to the Licensee to secure confidential treatment of the Content; and (c) discloses only such Content as is required by law.
(c) Personal Information. Personal information that forms part of the Content will be stored by DoProcess in an encrypted manner and treated in accordance with all applicable Canadian and provincial privacy laws.
(d) Location. Your Content will be stored and backed-up at data centres located in Canada only.
(e) Security. DoProcess has implemented and will maintain and follow appropriate physical, technical and organizational measures intended to protect your Content against accidental, unauthorized or unlawful access or disclosure, including without limitation, operational security, encryption, access control, identity management, threat management, logging and network security. Your Content will only be made available to those limited people at DoProcess or its affiliates that need access in relation to the Limited Purpose. We will promptly notify you of any security incidents involving your Content.
(g) Ownership. As between the parties, you retain all right, title and interest in and to the Content, other than the rights specifically granted to DoProcess herein.
(h) Liability. Notwithstanding Section 15, DoProcess’s liability to Licensee in the event of DoProcess’ misuse of the Content is limited to direct damages and will not, in the aggregate, exceed the amount the Licensee actually paid DoProcess under this Agreement in relation to The Conveyancer Program during the 6 months preceding the claim.
(i) Amendments. Notwithstanding Section 16 of this Agreement, DoProcess will not unilaterally amend its commitments in Sections 23 (a) through (h) in a way that will result in greater Content use rights; a reduction of commitments or liability in relation to the Content; nor a change in Content ownership.
24. Supplemental Terms and Conditions: These supplemental license terms add to or modify the terms and conditions set out above in this agreement for the specific programs, services or components identified below:
A. Additional terms and conditions for use with the Transaction Data Exchange “TDX” Service
(a) Licensee represents and warrants that:
(i) Licensee has the right and authority to use and disclose any information that Licensee transmits using TDX, including that the information is not subject to any confidentiality obligations and that any information of or about individuals is only accessed, collected, used, or disclosed by Licensee in accordance with applicable privacy laws;
(ii) Licensee will not use TDX to create a database in electronic or other format or for the purposes of data aggregation or dissemination (otherwise than for Licensee’s internal archival use);
(iii) Licensee will not use TDX for the purpose of marketing, or resale of the data and information or components thereof transmitted using TDX;
(iv) Licensee will not tamper with TDX, including by translating, reverse engineering, decompiling, disassembling or modifying TDX or by merging TDX with any other system; and
(v) Licensee will only use information Licensee receives from a client of Licensee through TDX with the consent of such client, and solely for the purpose of completing a transaction or record using the Program related to such client.
(b) Licensee is responsible for any errors in information supplied: (i) by a client of Licensee through the TDX service; or (ii) by Licensee through the TDX service, and Licensee will defend, indemnify, and hold DoProcess, its affiliates and related entities, and any of their respective directors, officers, employees, agents, and contractors harmless from and against all claims, liability, and expenses, including legal fees and costs, arising out of a claim by a third party relying on information supplied pursuant to (i) or (ii).
(c) For certainty and without limiting Section 13, DoProcess does not warrant the contents of any information transmitted using TDX, including its accuracy, completeness, or usefulness, nor does DoProcess warrant that any information transmitted using TDX is actually received by any party or is accurately transmitted.
(d) Licensee agrees that the receipt of information using TDX does not in any way limit, reduce or replace any obligation a Licensee may have to: (i) meet with, verify the identity of, or otherwise know their client, (ii) comply with any anti-money laundering, fraud prevention, or other similar laws, or (iii) comply with professional or ethical requirements with respect to their clients.
B. Additional terms and conditions applicable to Teranet Connect Service
(a) Licensee represents and warrants that it will only use Teranet Connect and the Paid Use transaction records, information, reports and other content (“Content”) it receives therefrom for its own internal business purposes directly related to searches related to Ontario real estate transactions, including without limitation, disposition or acquisition of real estate in Ontario, and/or the preparation of any documents in connection with such a disposition, acquisition or transaction, and for no other purpose whatsoever.
(b) Licensee must accept and abide by the Teranet Connect terms and conditions and complete certain forms required by the third party providing Teranet Connect, being Teranet, and Licensee shall not be permitted to access Teranet Connect until same is completed. If there is a conflict between this agreement and any applicable Teranet Connect user terms, the Teranet Connect user terms shall take precedence in relation to the Teranet Connect services.
(c) For certainty and without limiting Section 13, DoProcess does not warrant the contents of any information transmitted using Teranet Connect, including its accuracy, completeness, or usefulness, nor does DoProcess warrant that any information transmitted using Teranet Connect is actually received by any party or is accurately transmitted. Provision of Teranet Connect or any of the databases and/or Content accessible via Teranet Connect may not be available under all circumstances or at all times and may be discontinued at any time.
(d) Further to and without limiting Section 5, for Teranet Connect transactions, Licensee will be responsible for paying the charges for the Content accessed through Teranet Connect directly to Teranet as set out in the Teranet Connect terms and conditions.
(e) DoProcess may disclose Event Information and personal information of the Licensee to Teranet for the purposes set out in Section 10 as well as for those purposes as applicable specifically to Teranet Connect and the Teranet Connect terms and conditions. Teranet may also disclose such information to the Province of Ontario, its ministries or agencies, for the purposes of Ministry or agency use, and to the Province of Ontario, its ministries or agencies and to any law enforcement authority or regulator having jurisdiction, or the Law Society of Upper Canada, in connection with any investigation by any of them relating to the Licensee’s use of Teranet Connect.
(f) Licensee acknowledges and agrees that the Content contains data from POLARIS, which data is the property of the Province of Ontario and Licensee does not acquire any right hereunder to modify or change said data in any way and all intellectual property rights in or to the content are and shall remain the sole and exclusive property of the Province of Ontario, Teranet or the applicable lawful third party owners.
(g) Licensee acknowledges that the Province of Ontario shall not be liable in any manner to Licensee for any loss of revenue or profit or savings, lost or damaged data, or other commercial or economic loss or any direct or indirect or incidental, special or consequential damages whatsoever even if the Province of Ontario has been advised of the possibility of such damages, or for claims of any nature by a third party. This Section shall apply whether or not the liability results from a breach of a fundamental term or condition or a fundamental breach. It is acknowledged that this Section is included for the benefit of and can be relied on by the Province of Ontario.
(g) Licensee shall comply with all applicable laws and regulations relating to Teranet Connect and, the databases and content access via Teranet Connect, including, without limitation, any laws relating to privacy, export or the use of POLARIS data as information obtained from the public and collected by the Province of Ontario and Teranet through its operation of the land registration system in the Province of Ontario.
C. Additional terms and conditions applicable to Conveyancer Online
(a) The terms and conditions in this Section 23 C supplement and, where applicable, replace the terms and conditions in the main body of this Agreement in respect of a Licensee’s use of online based Programs (“Conveyancer Online”). In the event of any conflict between the terms and conditions set out in rest of the agreement and this Section C, in respect of Conveyancer Online, the terms and conditions in this Section C shall govern.
(b) In the event that DoProcess provides you with a subscription to Conveyancer Online, in this agreement, the “Program”, as otherwise used in this Agreement, shall mean Conveyancer Online and all accompanying documentation that may be provided from time to time by DoProcess, and all copies of any of the foregoing. In lieu of a license to Conveyancer Online, DoProcess grants you a limited right to access and use to Conveyancer Online for such purposes as permitted for a software Program.
(c) Licensee will not permit Conveyancer Online to be accessed under its account by more than the maximum number of users as set out in the Order Documentation (“User(s)”). No Keys shall be provided in respect of Conveyancer Online. Upon DoProcess’s acceptance of an Order Documentation, a user name and password will be established for each User registered by Licensee, up to the permitted number of Users set out in the Order Documentation. Each User must be separately registered. Transferring, sharing or assignment of a password or user name to any person is strictly prohibited. DoProcess reserves the right to require users to reset their password from time to time
(d) License may not: (i) take any action that imposes, or may impose, in DoProcess’s sole discretion, an unreasonable or disproportionately large load on DoProcess’s infrastructure; bypass or circumvent measures employed to prevent or limit access to Conveyancer Online; (ii) modify, adapt or hack Conveyancer Online or otherwise attempt to gain unauthorized access to Conveyancer Online or related systems or networks; (iii) use Conveyancer Online in any unlawful manner, including but not limited to violation of any person’s privacy rights; (iv) use Conveyancer Online to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (v) use Conveyancer Online to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (vi) use Conveyancer Online in any manner that interferes with or disrupts the integrity or performance of Conveyancer Online and its components; or (vii) use Conveyancer Online to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.
(e) Licensee is solely responsible for all information and materials of any kind it or its Users post on, store in or make available through Conveyancer Online (“User Content”). DoProcess will not be responsible or liable in any manner for the User Content. Licensee shall not upload, transmit, use, store, or post on or in connection with Conveyancer Online, any User Content that (i) infringes upon or violates any third party’s rights of any sort; (ii) violates any applicable law, or (iii) that could otherwise create liability for or cause harm to DoProcess, its service providers or a third party. DoProcess will use reasonable efforts to backup User Content. DoProcess reserves the right to delete or block access to any User Content at any time in its sole discretion if it believes that such User Content may be in violation of these terms. Licensee shall make sure that the User Content does not exceed any specified storage limits and DoProcess reserves the right to charge Licensee for the storage used and Licensee will pay such sums when required by DoProcess. Licensee grants DoProcess a nonexclusive, non-transferable, royalty-free, worldwide license to reproduce, distribute, display, perform, and modify the User Content as necessary to provide Conveyancer Online to the Licensee. Except for the license granted to DoProcess herein, Licensee retains ownership of all right, title, and interest in and to all User Content.
(f) Further to the previous paragraph, DoProcess strongly discourages the inclusion by the Licensee of any credit card details or other highly confidential information in the User Content by the Licensee and strongly advises their exclusion or redaction. Licensee agrees to indemnify DoProcess in respect of any third party claims relating to any User Content, except where those claims arise due to DoProcess’s negligence or intentionally wrongful conduct.
(g) DoProcess will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of the User Content. DoProcess reserves the right (but has no obligation) to review any User Content and/or take such action against you as it deems necessary in its sole discretion, including without limitation removing or modifying User Content, terminating or suspending License’s account or access to Conveyancer Online, reporting Licensee to its governing body or law enforcement authorities if it violate this agreement or otherwise create liability for DoProcess or any third party. DoProcess also reserves the right to audit and electronically monitor the number of requests Licensee and its Users submit, and the frequency and duration of Licensee’s online activities.
(h) Licensee agrees that DoProcess and the service providers it uses to assist in providing Conveyancer Online shall have the right to access Licensee’s account and to use, modify, reproduce, distribute, display and disclose the User Content solely to the extent necessary to provide Conveyancer Online, including, without limitation, in response to Licensee support requests. Any third party service providers DoProcess uses will only be given access to the Licensee account’s and User Content as is reasonably necessary to provide Conveyancer Online. Licensee acknowledges that DoProcess or a third party service provider on DoProcess’ behalf (and not Microsoft or its suppliers) will provide technical support for any Microsoft products forming part of Conveyancer Online.
(i) DoProcess may, in its sole discretion, elect to temporarily suspend Licensee’s account and access to Conveyancer Online: (i) if DoProcess believes Licensee’s use of Conveyancer Online poses a security risk to Conveyancer Online or any third party or may adversely impact Conveyancer Online or may subject DoProcess, its affiliates or any third party to liability; (ii) if DoProcess suspects or detects any malicious software connected to Licensee’s account or use of Conveyancer Online by Licensee or its Users; (iii) during planned downtime for upgrades and maintenance to Conveyancer Online (of which DoProcess will use commercially reasonable efforts to notify Licensee in advance through the DoProcess forum page) (“Planned Downtime”); (iv) during any unavailability caused by circumstances beyond DoProcess’s reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond DoProcess’s reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (v) if DoProcess believes Licensee is using Conveyancer Online contrary to this agreement. DoProcess will use commercially reasonable efforts to schedule Planned Downtime for weekends and other off-peak hours. If DoProcess feels Licensee’s use of the Conveyancer Online is exceeding reasonable storage, bandwidth, access or other such limits, DoProcess reserve the right to cap Licensee usage of Conveyancer Online to limits DoProcess deems reasonable. For clarity, a suspension or capping hereunder does not constitute termination of this agreement and Licensee shall continue to be bound by this agreement during the period of such suspension or capping.
(j) Upon termination of this agreement, for any reason you will cease all use of Conveyancer Online. DoProcess will disable all Licensee user names and password; provided that for up to 30 days following the termination this agreement, upon request from Licensee, DoProcess shall provide you with a copy of your Data, at the Licensee’s expense, from Conveyancer Online. Following such 30 day period, DoProcess reserves the right to delete the Licensee’s account and all Data therein in the normal course of operation. Data cannot be recovered once an account is deleted and the aforementioned 30 day period has passed.
(k) You recognize and agree that: (i) the Internet is not a secure medium, and neither the privacy of your communications, nor use of Conveyancer Online can be guaranteed; (ii) the nature of Internet communications means that your communications may be susceptible to data corruption, unauthorized access, interception and delays. DoProcess shall not be responsible or liable for any loss of privacy, disclosure of information, harm, damage or loss that may result from your transmission of any information to us in any connection with Conveyancer Online. DoProcess does not warrant that: (a) Conveyancer Online will meet your requirements, will operate in an uninterrupted or error-free manner, or will be free of viruses, worms or other harmful components; or (b) that any defects in Conveyancer Online will be corrected.
(l) DoProcess shall use reasonable efforts to ensure that Conveyancer Online will be available 24x7x365 except during maintenance window periods as required from time to time. DoProcess will provide you with notice of planned maintenance activities in advance. The planned maintenance windows for the Conveyancer Online are: (i) Monday to Friday between 8:00 pm and 8:00 am EST and Saturdays, Sundays and statutory holidays between 5:00 pm and 8:00 am. Emergency and unplanned urgent maintenance activities will be performed as and when needed; provided that DoProcess will use reasonable efforts to provide you with advance notice of such maintenance and schedule such maintenance in a manner to minimize the impact to Conveyancer Online when required to be performed outside of the planned maintenance windows. Notwithstanding the foregoing, DoProcess makes no warranties as to the availability of Conveyancer Online.
(m) Licensee shall not use Conveyancer Online in any application or situation where Conveyancer Online’s failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). High Risk Use does not include utilization of Conveyancer Online for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Licensee agrees to indemnify and hold harmless DoProcess and its suppliers from any third-party claim arising out of Licensee’s use of Conveyancer Online in connection with any High Risk Use. (n) In respect of Conveyancer Online, Microsoft is a third party beneficiary of this agreement with the right to enforce the provision so of this agreement and to verify the compliance of the Licensee.
D. Additional Terms and Conditions for Use during the Evaluation Period
The Evaluation Period is considered the first 30 days from the installation date of the software.
(a) During the Evaluation Period, a licensed version of the software will be made available to the Licensee.
(b) The Licensee is required to add transaction credits to the software in order to create files.
(i) If the Licensee has chosen a credit card payment option, Licensee will be charged for transaction credits at the time of ordering credits.
(ii) If the Licensee has choose a cheque payment option, Licensee will, at the end of the Evaluation Period, be sent an invoice for any credits ordered during the Evaluation Period.
(c) At any point up to and including the end date of the Evaluation Period, the Licensee can cancel their agreement by sending a cancellation request, in writing, to firstname.lastname@example.org.
(d) On receipt of a cancellation notice, DoProcess agrees to reimburse any prepaid and unused licensing fees and transaction credits fees incurred during the Evaluation Period.
(e) The software license shall be deemed to have been accepted by the Licensee on the first day after the Evaluation Period end date, at which point the Licensee shall be billed for any/all licensing and transaction credits fees incurred and not paid for during the Evaluation Period.
E. Additional Terms and Conditions applicable to UnityC™
(a) UnityC is an online service that allows current and potential clients and other third parties (“Transaction Participants”) to share data, information, materials and documents (“Materials”) with the Licensee and the Licensee to share Materials with Transaction Participants.
(b) The Licensee is granted a non-exclusive right to access and use UnityC for internal use purpose consisting of: (a) referring current and potential clients; (b) sharing information in relation to and with Transaction Participants; and (c) providing services to the Licensee’s current or potential clients.
(c) The Licensee acknowledges that in order to use UnityC, Transaction Participants and the Licensee, as applicable, must first set up an account by providing us with the required registration information and designating a user id and password (“UnityC Credentials”) and that if DoProcess determines or reasonably suspects that UnityC Credentials have been compromise or use of UnityC poses a security risk to UnityC, DoProcess or its affiliated entities or a third party, DoProcess reserves the right to suspend such UnityC Credentials which will prevent the Transaction Participant or Licensee from accessing UnityC.
(d) The Licensee agrees it will not, nor assist any third party to: (a) use UnityC in a service bureau, bulk sales, computer service or timesharing business; (d) use UnityC to create a database in electronic or other format or for the purposes of data aggregation or dissemination; (c) resell or otherwise commercially exploit UnityC; (d) use UnityC Credentials or UnityC in connection with the commission of any criminal act or any act otherwise contrary to law or regulation; (e) take any action that imposes, or may impose an unreasonable or disproportionately large load on UnityC’s infrastructure; (f) attempt to gain unauthorized access to UnityC; (g) use UnityC to store or transmit content that infringes on any person’s intellectual property rights; (h) use UnityC in any manner that interferes with or disrupts the integrity or performance of Unity; or (i) use UnityC to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.
(e) DoProcess strongly discourages the inclusion of any credit card details or other highly confidential information in the Materials and strongly advises their exclusion or redaction. Licensee agrees to indemnify DoProcess in respect of any third party claims relating to any Materials, except where those claims arise due to DoProcess’s negligence or intentionally wrongful conduct.
(f) The Licensee represents and warrants that: (i) it has obtained meaningful consent from the applicable individual or entity for the collection, use and disclosure of Material consisting of personal information as defined in applicable Canadian and provincial privacy laws; (ii) Materials do not and will not infringe any copyright, patent, trade-mark, trade secret or other proprietary rights or rights of publicity or privacy; (iii) Materials do not and will not violate any law, statute, ordinance or regulation; (iv) Materials are not, and will not be, defamatory, trade libelous, obscene or pornographic; and (v) Materials have been are subjected to firewalls, password and other industry appropriate security measures to limit viruses and other harmful or deleterious programming routines.
(g) DoProcess reserves the right to remove (or have removed) from its servers any Materials which it believes, in its sole discretion, may damage or expose to liability DoProcess or its affiliated entities, and any of their respective directors, officers, employees, consultants, agents and suppliers (“DoProcess Group”), and the Licensee authorizes DoProcess and its authorized representatives to effect such removal and consent to such removal. The Licensee agrees that DoProcess shall not be liable for, and waive any claim arising from, any such Materials removal.
(h) The Licensee grants DoProcess and its affiliates the right to store Materials and use it to provide the Licensee and Transaction Participants with UnityC (the “Limited Purpose”). Except as required by law, unless it receives Licensee’s written permission, DoProcess will not use Licensee Materials other than as necessary to achieve the Limited Purpose. DoProcess shall not disclose the Materials to any person except to its affiliated entities, employees, internal contractors and agents (the “Representatives”) having both a need to know to accomplish the Limited Purpose and an obligation of confidentiality. The foregoing obligation of confidentiality and restrictions on use hereunder shall not apply to Material: (a) known to DoProcess before receipt from the Licensee, without a duty of confidentiality; (b) generally available to the public (or becomes so), unless due to a DoProcess breach; (c) received by DoProcess from a third party without a duty of confidentiality; or (d) is independently developed by or for DoProcess without any use of the Material. It shall not be considered a breach of this agreement if DoProcess discloses Material as required by law; provided that DoProcess: (a) where permitted by law, gives Licensee written notice promptly upon receipt of a disclosure requirement and before the disclosure is made; (b) takes reasonable actions and provide reasonable assistance to the Licensee to secure confidential treatment of the Material; and (c) discloses only such Material as is required by law.
(i) Materials will be stored and backed-up at data centres located in Canada only. DoProcess has implemented and will maintain and follow appropriate physical, technical and organizational measures intended to protect Materials against accidental, unauthorized or unlawful access or disclosure, including without limitation, operational security, encryption, access control, identity management, threat management, logging and network security. Personal information that forms part of the Materials will be stored by DoProcess in an encrypted manner and treated in accordance with all applicable Canadian and provincial privacy laws. While DoProcess is committed to protecting the security of UnityC, it cannot guarantee that unauthorized third parties will not be able to defeat its security measures. DoProcess will promptly notify the Licensee of any security incidents involving its Materials. DoProcess will logically separate Licensee Materials from its own data and the data of other DoProcess customers.
(j) The planned maintenance windows for Unity are: (i) Monday to Thursday 10pm to 6am ET and (ii) Friday 10 pm to Monday 6am and (iii) statutory holidays. Emergency and unplanned urgent maintenance activities will be performed as and when needed; provided that DoProcess will use reasonable efforts to provide the Licensee with advance notice of such maintenance and schedule such maintenance in a manner to minimize the impact to UnityC when required to be performed outside of the planned maintenance windows.
(k) Notwithstanding any provision of the agreement, DoProcess does not warrant the performance, availability or contents of UnityC, including its accuracy, completeness or usefulness or that all UnityC related issues with be resolved. Provision of UnityC and/or content accessible via UnityC may not be available under all circumstances or at all times and may be discontinued at any time.
(l) As between the parties, the Licensee retains all right, title and interest in and to the Materials, other than the rights specifically granted to DoProcess herein.
(m) The Licensee agrees that if it sends DoProcess suggestions, ideas or other information regarding UnityC, DoProcess is entitled to unrestricted use of the feedback for any purpose whatsoever, without compensation to the Licensee.
(o) The DoProcess Group’s liability to Licensee in the event of DoProcess’ misuse of the Materials is limited to direct damages and will not, in the aggregate, exceed the amount the Licensee actually paid DoProcess under this agreement in relation to Programs during the 6 months preceding the claim.
(p) DoProcess reserves the right to add, amend, remove or augment UnityC features at any time. Notwithstanding Section 16 of the main body of the agreement, DoProcess will not amend its commitments in Section h above in a way that will result in greater Material use rights; a reduction of commitments or liability in relation to the Material; nor a change in Material ownership without providing the Licensee at least 90 days prior notice.
(q) If the Licensee does not use UnityC for a period of 365 days, DoProcess may delete Licensee Materials; provided that deletion of Materials from all backup servers may not be completed until up to 45-days after the end of the 365 day period. At any time during the term of the agreement, the Licensee may request that its Materials be deleted and DoProcess will delete its Materials, including from all backup servers, within 45 days of Licensee request.
(s) These additional terms and conditions applicable to UnityC and the applicable terms in the main body of the agreement constitute the entire agreement between DoProcess and the Licensee with respect to the use of UnityC.