END USER LICENSE AGREEMENT
SOFTWARE

Please read this END USER LICENSE AGREEMENT (this “Agreement”) carefully.

This Agreement is a legally binding agreement between you (“You” or “you”) and ARC Business Solutions Inc. (“Licensor”), and contains important terms and conditions relating to matters such as proprietary rights, indemnities, and liability. 

In order to use the Software (defined below), you must accept this Agreement.  By using the Software, you acknowledge having read, understood and agreed to all of the terms, conditions, obligations and limitations of this Agreement, and you agree that it governs your use of the Software.

If you are not willing to be bound by each and every term or condition, you must not use the Software and you must decline this Agreement.

BACKGROUND:

A.                Licensor is the owner of “CommuniBee”, a mobile app for community leagues (the “Software”).

B.                 You wish to obtain a license to use the Software, including for the use of your authorized end users, and Licensor wishes to allow you and your end users to use the Software, in accordance with the terms and conditions of this Agreement.

NOW THEREFORE, in consideration of the mutual rights, obligations and premises hereunder and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the parties), the parties agree as follows:

1.                  License.  Subject to the terms and conditions of this Agreement, Licensor hereby grants to you and your End Users (as defined in Section 4) a personal, non-exclusive, non-transferable, revocable, limited license during the term of this Agreement (the “License”) to use the Software.

2.                  Changes. Licensor reserves the right to change this Agreement at any time, and the changes will be effective when posted on our website for the Software or when we notify you by other means. We may also change or discontinue the Software, in whole or in part. Your continued use of the Software indicates your agreement to the changes.  If the modified terms are not acceptable to you, your only recourse is to cease using the Software.

3.                  No Sale.  You acknowledge and agree that nothing in this Agreement constitutes a sale of the Software to you, and further that this Agreement does not convey to you, any End User or any other third party, any ownership right, interest or title in or to the Software, or to any Intellectual Property Rights therein, other than those expressly set out in this Agreement.  In this Agreement, “Intellectual Property Rights” means any and all (i) proprietary rights provided under patent law, copyright law, trade-mark law, design patent or industrial design law, semi-conductor chip or mask work law, or any other applicable statutory provision or otherwise arising at law or in equity anywhere in the world, including, without limitation, trade secret law, that may provide a right in works, software, source code, object code, marks, ideas, formulae, algorithms, concepts, methodologies, techniques, inventions, or know-how, or the expression or use thereof, (ii) applications, registrations, licenses, sublicenses, agreements, or any other evidence of a right in any of the foregoing, and (iii) past, present, and future causes of action, rights of recovery, and claims for damage, accounting for profits, royalties, or other relief relating, referring, or pertaining to any of the foregoing.

4.                  End User’s Access to Software.  Your authorized end users of the Software (the “End Users”) will be able to access and use the Software by downloading it at either the Apple Store or Google Play websites.  Instructions for downloading the Software will be provided by the Licensor to you at your request. You and your End Users are responsible for complying with the terms and conditions of the Apple Store or Google Play websites.

5.                  Annual Fees.  In consideration of your payment of the Annual Fees, Licensor grants you the License.  The Licensor has the right to change fees at any time and will provide you with 90 days written notice of any changes to its Annual Fees.

6.                  Software License, Hosting and Support.   In consideration of your payment of Annual Fees, Licensor provides the following:

·         Software license

·         Defect resolution

·         Database maintenance

·         Access to Software enhancements

·         App related support questions

·         Cloud Hosting – includes Annual Cap budgeted at $100 for bandwidth usage

·         App available on iTunes and Google Play stores and web version hosted by ARC

7.                  Acceptable Use.  In using the Software, you will

(a)               be responsible for your and your End Users’ compliance with this Agreement,

(b)               use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify Licensor promptly of any such unauthorized access or use,

(c)               use the Software only in accordance with all applicable laws and regulations, including all applicable local, provincial, state, national and foreign laws, treaties and regulations as well as orders of courts or laws, regulations, by-laws or ordinances of applicable governmental agencies (collectively, “Applicable Laws”), and

(d)               immediately notify Licensor any time you become aware of any violation, by any person, of this Agreement and provide Licensor with assistance, as requested, to stop or remedy such violation.

8.                  Prohibitions.  In using the Software, you will not, and you will also not permit any End User or other person to, directly or indirectly,

(a)               make the Software available to anyone, or permit anyone to access the Software, other than End Users licensed hereunder, and, unless otherwise expressly permitted by written agreement with Licensor, you will not license, sublicense, sell, resell, publish, republish, transfer, assign, distribute, rent, lease, time-share, copy or otherwise commercially exploit the Software in any way except as expressly set out in this Agreement,

(b)               use the Software in any manner or for any purpose (i) not permitted by the License, including purposes other than the Purpose, (ii) that contravenes, facilitates the violation of, or violates any, Applicable Law, or (iii) that extracts, gathers, collects, or store personal information about individuals without their express consent or that involves data mining, robots or similar data gathering or extraction methods on others’ data without their express consent,

(c)               use the Software to post, upload, reproduce, distribute or otherwise transmit (i) unauthorized or unsolicited commercial e-mail, junk or bulk e-mail, chain letters or other “spam” or any other duplicative or unsolicited messages, surveys, contests or pyramid schemes, (ii) any “Malicious Code”, being viruses, cancelbots, worms, time bombs, Trojan horses and other harmful, disruptive, surreptitious or malicious components, code, files, scripts, agents or programs, (iii) defamatory, infringing, indecent or unlawful software, materials or information, (iv) inappropriate, profane, or obscene software, materials or information without suitable or lawfully-required access controls, (v) software, materials or information where such activity gives rise to civil liability, or otherwise violates the rights or assists others to violate the rights of Licensor or any third party; such violations including copyright infringement, invasion of privacy, trademark infringement and defamation, or (vi) software, materials or information where such activity constitutes a criminal offence, or otherwise engage in or assist others to engage in any criminal offence, including communicating hatred, pyramid selling, unauthorized use of a computer, mischief in relation to data, fraud, obscenity and child pornography,

(d)               alter, modify, reverse engineer, decompile, or disassemble, translate or otherwise attempt to extract the source code from the Software or any part thereof, nor create derivative works based on the Software or works containing a substantial part of the Software,

(e)               make or install copies of the Software in excess of the maximum number permitted hereunder,

(f)                disable or circumvent any access control or related process or procedure established with respect to the Software, or remove any copyright or other proprietary notices or labels on or in the Software or any part thereof,

(g)               remove any copyright or other proprietary or Intellectual Property Rights notices or labels on or in the Software or any part, copy or report generated therefrom or thereof,

(h)               scan or probe another computer system, obstruct or bypass computer identification procedures or engage in unauthorized computer or network trespass without the express permission of the owners of such computer systems,

(i)                 access the Software in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Software, or

(j)                 forge headers or otherwise manipulate any protocols or identifiers used in any system or protocol in such a manner to disguise the origin of any data transmitted using the Software.

9.                  Termination.

This Agreement, and the License granted under this Agreement, may be terminated or suspended by Licensor immediately and without notice if you fail to comply with any terms of this Agreement. Either party may terminate this Agreement upon providing 30 days written notice to the other party.  Upon termination, you and your End Users must immediately cease using the Software. Any termination of this Agreement shall not affect Licensor’s rights hereunder. 

10.              Proprietary Rights.

(a)               Software and Related Content—All right, title and interest (including all Intellectual Property Rights) in and to the Software (and any documentation, content or other materials provided through it or with it) is and will at all times be fully vested in Licensor and its third party licensors and sponsors of sponsored ads that appear on the mobile app, except as otherwise expressly set out in this Agreement.  

(b)               Customer Feedback—From time to time during the term of this Agreement, you or your End Users may provide Licensor with comments, suggestions, ideas and impressions of the Software, its functionality or its design (collectively, “Feedback”).  You acknowledge and agree that, by disclosing such Feedback to Licensor, you will be deemed to have assigned same to Licensor and waived any moral rights in or to same, and you will require your End Users to do the same.  You acknowledge and agree that the opportunity to use the Software is good and sufficient consideration for any contributions, through the Feedback or otherwise, to the design, improvement, or functionality of the Software.

(c)               Your Data—Licensor does not claim ownership of, and assumes no responsibility with respect to, any information, materials, data entered or inputted into the Software by or on behalf of you or your End Users (collectively, “Your Data”).  All right, title and interest (including Intellectual Property Rights) in and to Your Data will at all times be fully vested in you. You hereby grant to Licensor a personal, non-exclusive and non-transferable license during the term of this Agreement to use Your Data for performing data analytics on a non-personally identifiable basis.

(d)               Privacy—you acknowledge and agree that Your Data may contain personal information protected by Applicable Laws, and, in connection therewith,

(i)                 you (and Licensor, to the extent that any of Your Data is provided to Licensor) will adhere to all Applicable Laws with respect to the collection, use or disclosure of such personal information as it is contained in Your Data, and

(ii)              you acknowledge and agree that your use of the Software, and that of your End Users, may utilize, in whole or in part, the public Internet and third party networks to transmit communications, which transmissions may be intercepted by other parties or stored, cached, routed, transmitted or received in jurisdictions outside of Canada or the United States.

11.              No Warranties.

The Software is provided on an “as-is” and “as-available” basis, and the conditions, representations and warranties expressly set out herein are in lieu of, and Licensor expressly disclaims, all conditions, warranties and representations, express, implied or statutory, including implied conditions, warranties or representations in respect of quality, conduct, performance, reliability, availability, merchantability or fitness for a particular purpose, whether arising by usage of trade, by course of dealing, by course of performance, at law, in equity, by statute or otherwise howsoever, to the maximum extent permitted by Applicable Law.

12.              Liability.

(a)               Exclusion and Limit of Liability

(i)                 Licensor is not liable to you for any indirect, incidental, special or consequential Claims of any kind whatsoever and however caused, whether arising under contract, tort (including negligence) or otherwise, including (without limitation) loss of production, loss of or corruption to data, loss of profits or of contracts, loss of business, loss of management or operation time and loss of goodwill or anticipated savings, even if ARC has been notified of the possibility thereof or could have foreseen such Claims, and

(ii)              Licensor’s aggregate liability for direct damages in respect of this Agreement will be limited to the amount of fees paid by you to the Licensor for the month preceding the Claim.  The term “Claim” means any and all liabilities, actions, proceedings, claims, demands, losses, damages and costs, including reasonable legal fees and expenses on a solicitor and own client basis.

13.              General Limitations.  You acknowledge and agree that you and your End Users’ use of the Software will utilize, in whole or in part, third party networks to transmit communications, which transmissions may be intercepted by other parties or stored, cached, routed, transmitted or received in any jurisdiction, and Licensor cannot guarantee any minimum level regarding actual performance, speed, reliability, availability, use or consistency based on factors depending on the Internet.

14.              General.

(a)               Assignments, etc.—This Agreement, and any rights and licenses granted hereunder (including the License) may not be assigned by you without the prior written approval of Licensor but may be assigned without your consent by Licensor to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of its assets, (iii) a successor by merger or amalgamation. Any purported assignment in violation of this section shall be void.

(b)               Entire Agreement—This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, without affecting the validity or enforceability of any separate agreement in writing between you and Licensor.  Except as otherwise agreed in writing, neither party has relied on any representations or warranties that are not made in this Agreement.

(c)               Non-Waiver—None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Licensor, and such waiver may only be effected by an instrument in writing signed by an authorized officer of Licensor.  No waiver of any provision of this Agreement shall constitute a waiver of any other provisions or of the same provision on another occasion.

(d)               Notices—Any notice, consent, waiver, approval, authorization or other communication to be delivered in connection with this Agreement must be in writing.

(e)               Jurisdiction and Governing Law.  If you are a resident of Canada or any other country other than the United States, this Agreement shall be construed and governed by the laws of the Province of Ontario and the laws of Canada applicable therein without reference to its conflicts of law principles.  The parties agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario.

If you are a resident of the United States, this Agreement shall be construed and governed by the laws of the State of New York and the federal laws of the United States applicable therein without reference to its conflicts of law principles.  The parties agree to submit to the exclusive jurisdiction of the courts of the State of New York.

(f)                Severability— If any of the provisions of this Agreement or any part thereof shall be or held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provisions or parts thereof, and the rights and obligations of the parties shall be construed and enforced accordingly, with the invalid or unenforceable provisions or parts modified so as to be limited and enforced to the fullest extent possible.