For: ACCEO Smart Vendor Customers
By: ACCEO Smart Vendor
|Document Owner:||ACCEO Smart Vendor|
This Software and Service License Agreement along with all materials referenced herein (“Agreement”) is a legal agreement between an entity (“Customer”) and ACCEO Solutions Inc. (“ACCEO”) permitting Customer to access and use, subject to the terms of this Agreement, (i) ACCEO’s software identified on the license agreement page.
1. Definitions – The following terms, when used in the Agreement, shall have the following meanings:
(a)‘alteration’ shall mean any change made to the physical-mechanical or electrical arrangement of the equipment whether or not additional devices or parts are required.
(b)‘attachment’ shall mean the mechanical, electronic interconnection of equipment marketed by others.
(c)‘charges’ shall mean the stated purchase price, service charges and other amounts to be paid pursuant to this Agreement including all applicable customs duties, use taxes, and sales tax.
(d)‘implementing’ shall mean configuring a system to perform specified functions and installation of the appropriate components to achieve that result.
(e)‘installation services’ shall mean installation and operational training and assistance.
(f)‘program’ shall mean instructions to achieve a certain result, whether denominated software or firmware, wherever resident and on whatever media and all related documentation furnished to Customer.
(g)‘system’ shall mean an integrated group of units of equipment and software supplied by ACCEO and the ACCEO furnished programs utilized with it pursuant to any other agreement.
2. Delivery – Customer agrees to accept delivery of the equipment and software products at the installation address indicated above on the scheduled delivery date or scheduled deliver dates thereof, or so soon thereafter as ACCEO shall have the equipment and software products in a deliverable state. The customer agrees not to remove equipment from the designated location without the prior written consent to ACCEO.
3. Payment Condition. The Customer hereby agrees that this contract is conditional upon either:
(a) Customer paying all charges by certified cheque or money order on or before delivery; or
(b) Customer being accepted by a reputable leasing company for the lease of the equipment and software products, and Customer agreeing to sign the said leasing company’s standard lease. Customer agrees to sign the said leasing company’s standard lease and to be bound by its terms and conditions. The parties hereby agree that this section is for the benefit of ACCEO and that it can be waived or modified by ACCEO in writing, in its sole discretion.
4. Taxes. The charges to be paid pursuant to this Agreement include all applicable customs duties and federal sales taxes but do not include other taxes, however designated, imposed by any duly constituted authority, whether levied on ACCEO or Customer. Any such additional sales, use or other taxes, amounts in lieu thereof, and interest therein if not due to ACCEO. ACCEO’s delay, required to be paid by ACCEO shall be added to the invoice to Customer. Customer shall pay all taxes on personal or moveable property assessed after invoicing in respect of any equipment, part, product or service. Any taxes to be paid by Customer but in fact paid by ACCEO shall be reimbursed to ACCEO.
5. Supplies. Charges for the equipment and software products do not include furnishings of supplies or other expendable items unless otherwise indicated.
6. Patents, Copyrights, Trade Marks and Trade Secrets Indemnity – Customer shall be entitled to any patents, copyright, trade marks, and trade secrets indemnity offered by the various manufactures of the equipment; and agrees not to hold ACCEO liable for the costs or damages in settlement or awarded as a result of any action brought against the Customer based on the allegation that the equipment or any unit of part thereof delivered by ACCEO infringes a Canadian patent, copyright, trade mart or trade secret.
7. All software products sold herein are licensed pursuant to license agreements and said license agreements are incorporated by reference into this agreement.
8. Ownership of Equipment and Risk of Loss – Title to and ownership of the equipment and software products shall remain in ACCEO and shall only pass to Customer upon ACCEO’s receipt of payment of the full purchase price balance. At the time of transfer of title and ownership, ACCEO warrants title to the equipment to be clear, free and unencumbered. ACCEO reserves, and Customer hereby grants to ACCEO, a purchase money security interest by way of retention of title to and ownership of each unit of the equipment and software products, present and future, purchased by Customer pursuant to this Agreement and any agreement amending this Agreement, and any proceeds therefrom as security for payment of the amount of its purchase price, and such security interest shall be satisfied by payment of the purchase price balance in full. ACCEO may file a financing statement or other prescribe documentation with appropriate authorities in order to perfect ACCEO’s security interest or to protect ACCEO’s reservation of title. Customer agrees to execute any and all documents, including financing statements, as ACCEO or its assigns may request in order to perfect or mature this security interest. Any such filing shall not constitute acceptance of this Agreement by ACCEO. Upon full payment, ACCEO will, upon request, provide Customer with a duly executed discharge statement.
9. Excused Performance. Neither ACCEO nor Customer shall be deemed to be in default of any provision hereof or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from acts of God, civil disturbance, war, strikes, fires, other catastrophes, or other force majeure beyond its reasonable control. Failure of Customer to pay charges with due shall, so long as Customer continues to fail to pay such charges, excuse ACCEO from its obligations under this Agreement.
10. System Capability – Any proposal or recommendation by ACCEO for the equipment ordered respecting the capability of the system to perform applications of, or produce certain results for Customer is based on ACCEO’s best efforts to provide an operation system for Customer. It shall constitute a commitment on the part of ACCEO only if it is specifically incorporated by reference in this Agreement, and Customer cannot itself verify system capability in advance of accepting delivery of the equipment. CUSTOMER ACKNOWLEDGES ITS OBLIGATION TO ACCEO TO VERIFY SYSTEM CAPABILITY IN ADVANCE OF DELIVERY WHENEVER REASONABLY POSSIBLE.
11. Warranties and Disclaimers – Customer and affiliates agree that all equipment is sold under respective manufacturer warranty and Customer and affiliates shall be only entitled to any warranties offered by equipment manufactures. Customer agrees to complete all necessary forms, applications and contracts with equipment manufactures to be entitled to manufacturer warranties. ACCEO DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DAMAGES TO EITHER PARTY HEREUNDER SHALL BE LIMITED TO THE FAIR MARKET VALUE OF PRODUCTS ACTUALLY PURCHASED. NO PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND SAVINGS, EVEN IF THERE HAS BEEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
12. Termination and Default – The following constitute Events of Default under the Agreement: (a) the failure by Customer to pay when due any required payments; (b) the failure by Customer to observe any condition or term or obligation to which Customer is bound hereunder of this agreement; (c) the Customer having recourse or being subject to any federal or provincial legislation respecting bankruptcy, insolvency, or winding-up; (d) the subjection of the Equipment or software products to any lien, privilege, seizure or attachment, or (e) the equipment being in the reasonable opinion of ACCEO at any time in danger of loss, damage or destruction or in fact lost, damaged or destroyed. Upon the occurrence of any Events of Default, ACCEO shall be entitled to enter upon the premises of the Customer to render inoperable and/or to take possession of the equipment without demand, notice or court order, Customer hereby waiving any and all damages occasioned by such entry taking of possession, and all without prejudice to ACCEO’s other rights and remedies under this agreement or otherwise. If, notwithstanding the foregoing, applicable law requires the giving of notice or the making of a demand of ACCEO prior to taking possession, it is agreed that written notice of not less than 3 days shall be considered reasonable. Upon the occurrence of any Event of Default, ACCEO may, in its discretion, whether or not it has taken possession of the equipment, declare the sums secured hereby, immediately due and payable. Whether permitted or required by applicable law, ACCEO may make repairs, improvements or modifications as are commercially reasonably for making a provident disposition of the Equipment and software products. ACCEO may dispose of the Equipment and software products on such terms and, to such person, by public or private sale with or without advertisement, as ACCEO deems appropriate, subject to giving any written notice to the Customer as may be required by applicable law. ACCEO shall apply the proceeds of disposition to the costs of repossession and disposition, including reasonable legal fees, and to the retirement of the indebtedness of the Customer. ACCEO shall account to the Customer for any surplus and the Customer shall pay ACCEO the amount of any deficiency.
13.Subscription-based services are available only through an automatic credit card payment option, automatic debit, or preauthorized banking services charged monthly. If your monthly charges fail (e.g., due to a decline response from the issuing bank or organization), the respective services will be suspended until the payment is made. There is a 24-month term commitment, and if canceled prematurely, you will be subjected to pay the remaining balance of the 24-month term.
14.This agreement shall constitute the entire agreement of the parties relating to the equipment and services and shall supersede all prior agreements, arrangements and understandings relating to same whether oral or written, and all negotiations, letter, other papers and proposal relating to same, except as specifically incorporated by reference in this agreement.
15.Any notice or other communications required or authorized to be given shall be in writing and shall be deemed to be given when mailed by certified or register mail, postage prepaid or send by telecopy to the party’s last known address.
16.If any provision of this Agreement is illegal, invalid or void under any applicable law, such provision shall be considered severable, remaining provisions shall not be impaired and this agreement shall be interpreted as far as possible so as to give effect to its stated purpose.
17.Limitation Period – No action or arbitration proceeding, regardless of form, arising out of this agreement may be brought by either party more than 2 years after the cause of action has arisen, or in the case of nonpayment, more than 2 years from the date of the last payment.
18.Governing Law – This agreement shall be construed, interpreted and governed in accordance with the laws of the province of Ontario.
19.Customer consents and agrees that all legal proceedings relating to the subject matter of this Agreement shall be maintained in courts sitting within the Province of Ontario, and Customer consents and agrees that jurisdiction and venue for such proceedings shall lie exclusively with such courts. Service of process in any such proceeding may be made by certified mail, return receipt requested, directed to the respective party at the address at which it is to receive notice as provided herein.
20.Waiver – No waiver shall be effective unless expressly set forth in writing.
21.Assignment. It is understood and agreed upon between the parties hereto that this agreement is personal to the Customer and may not under any circumstances be transferred or assigned by the Customer to any other person, firm or corporation without the written consent of ACCEO. However, ACCEO has full rights to assign this agreement without the consent of Customer, and in the event of such assignment ACCEO’s assignee shall succeed to all of ACCEO’s rights hereunder.
22.Customer’s printed order, purchase or contract form is binding only to the extent that it does not conflict or vary with the terms and conditions of this agreement.