Terms of Service and Software License Agreement

SOFTWARE LICENSE AGREEMENT

Read this document carefully. This is a legal agreement between you (the “Licensee”) and Visitor Bay Inc.(the “Licensor”). This Agreement governs your use of the software provided by the Licensor (the “Software”). By clicking “Accept”, copying, installing or using the Software, you are agreeing to be bound by all of the terms of this Agreement. If you do not agree with any of the terms of this Agreement, click “Cancel”, do not use, copy, or install the Software and immediately destroy any copies of the Software you have made. By using the Software, the Licensee agrees to be bound by the terms and conditions of this Agreement, including the limitations on the grant of license and the disclaimer of warranties.

You agree that your use of the Software acknowledges that you have read this Agreement, that you understand it, and that you agree to be bound by its terms and conditions. This Agreement gives you certain rights as a user of the Software only. You may not distribute, sell, transfer, or commercially exploit this Software or any products developed using this Software.

If the Licensee wishes to use the Software on a device other than the Licensed Platform, then the Licensee must obtain additional licenses and pay additional fees in advance of such installation. The Licensee must contact the Licensor for additional information.

1. GRANT OF LICENSE

a. The Licensor grants and the Licensee accepts a non-transferable and non-exclusive license with respect to the Software and the accompanying documentation (the “Documentation”) as follows: the Licensee may
- i. install, execute or run the Software on a single computer or tablet device, under the price, terms, and conditions specified in this Agreement (the “Licensed Platform”);
- ii. install, execute or run the Software on a second computer or tablet device provided the first and second computers are not used simultaneously; and
- iii. make one copy of the Software only for back-up purposes and provided that such copy contains all of the original Software’s proprietary notices.
Any rights not expressly granted are reserved for the Licensor. Source code as well as any other information pertaining to the logic, design, or structure of the Software is specifically excluded from the License. Title to the Software and all copies thereof which the Licensee is permitted to make under this Agreement will at all times remain with the Licensor and all Intellectual Property Rights of whatever nature will be and remain the exclusive property of the Licensor.

b. The Licensee acknowledges and agrees that the Software is cloud based, and that certain infrastructure hosting and certain third party software are required in order run the Software. The Licensee acknowledges and agrees that the Licensor makes no representations or warranties of such infrastructure hosting or third party software. The Licensee acknowledges and agrees that it will be bound by the terms and conditions of this Agreement, including all scheduled payments of fees and interest, regardless of issues relating to such infrastructure hosting or third party software which made impede or impair the Licensee’s use of the Software.
c. The Software and the Documentation is the sole and exclusive property of the Licensor and the Licensor’s licensors. The Licensor and its licensors retain all rights with respect to the Software and the Documentation, including copyright, patent and other proprietary rights, except the right to use the Software as specifically granted in this Agreement. Any copy of the Software or the Documentation is subject to the terms and conditions of this Agreement. The Software is licensed, not sold. Title, ownership rights, and all intellectual property rights in the Software (including without limitation the related source code, object code, updates, upgrades, enhancements and Documentation) will remain exclusively in the Licensor and its licensors. The Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with the Licensor’s or its licensors’ ownership of, or right with respect to, the Software. The Software and Documentation is protected by copyright and other intellectual property laws and by international treaties.

2. USE OF SOFTWARE – RESTRICTIONS AND LIMITATIONS

a. The license granted in this Agreement does not permit the Licensee to, and the Licensee agrees that it will not:
- i. distribute, sell, transfer, market, or otherwise commercially exploit the Software;
- ii. assign, sublicense, lease, distribute, or transfer in any way the rights granted in this Agreement, without the prior written consent of the Licensor which may be arbitrarily withheld;
- iii. use the Software for any use or in any manner other than as set out in the Documentation or this Agreement;
- iv. copy the Software or the Documentation except for back-up purposes;
- v. remove any proprietary notices or labels on the Software or the Documentation;
- vi. provide, lease, lend, use for timesharing, application service provider or service bureau purposes, or otherwise use or allow others to use the Software for their own benefit or for the benefit of third parties;
- vii. modify, alter, decompile, dissemble, or reverse engineer the Software or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying uses interface techniques or algorithms of the Software by any means whatever.
- This license does not grant you any right to any improvement, enhancement or update.

b. The Licensee agrees:

i. to use the Software only for own private use;
ii. not to use the Software in any way to provide, or as part of, any commercial service or application; and
iii. to use the Software only in a manner the complies with all applicable laws, including without limitation applicable restrictions concerning copyright and other intellectual property rights, laws or regulations relating to privacy and privacy rights and laws or regulations relating to unsolicited electronic commercial messages.

Any use of the Software in violation of any of the restrictions contained in this Agreement will immediately terminate this Agreement and any right of the Licensee to use the Software.

c. The Licensee agrees to defend, indemnify and hold the Licensor harmless from and against any and all costs, liability and expenses arising out of any claim that is related to:
- i. the Licensee’s use of the Software in any manner not contemplated by the Documentation or this Agreement;
- ii. the Licensee’s use of the Software in connection with any activity that is illegal, offensive or immoral or that infringes on the rights of privacy or publicity, or any intellectual or proprietary rights of any third party; or
- iii. any breach by the Licensee of its obligations under this Agreement.

3. FEES AND PAYMENT

a. The Licensee will pay to the Licensor the license fees for the Software as indicated on the Licensor’s subscription form. The Licensee is responsible for the payment of all applicable taxes. Fees are payable by the Licensee in the form and on the terms specified on the Licensor’s subscription form. Late payments will be subject to a late payment charge of one per cent (1%) per month, compounded monthly. All fees will be payable in Canadian dollars.

4. PROPRIETARY RIGHTST

a. The Licensee agrees to notify the Licensor immediately of any unauthorized possession or use of the Software. The Licensee will promptly furnish full details of such unauthorized possession or use to the Licensor, will assist in preventing the recurrence of such possession or use, and will cooperate, at the Licensee’s expense, with the Licensor to protect the Licensor’s proprietary rights, including any intellectual property rights. The Licensee’s compliance with this provision will not be construed as a waiver of any right of the Licensor to recover damages from, or obtain other relief against, the Licensee.
b. The Licensee acknowledges and agrees that the Software is of an extraordinary and unique character and that the injury which would be suffered by the Licensor in the event of a breach by the Licensee of any of its obligations under this Agreement would be irreparable and otherwise of a character which would not be fully compensated for solely by the recovery of monetary damages. Accordingly, the Licensee agrees that, without in any way limiting the other rights or remedies of the Licensor, the Licensor will be entitled to apply to obtain equitable relief, restraining order, injunction, decree, or remedy, as may be appropriate to restrain any breach or threatened breach of the Agreement.

5. TRANSFER OR ASSIGNMENT OF RIGHTS

a. The Licensor may assign its rights and obligations set out in this Agreement and upon such assignment will be released from all liabilities and obligations hereunder. The assignee will then assume the rights and obligations of the Licensor hereunder and become the Licensor under this Agreement.

6. TERM; TERMINATION OF LICENSE

a. This Agreement is effective until terminated. This Agreement will automatically terminate if the Licensee fails to comply with any term of this Agreement. No notice from the Licensor will be required to effect such termination. The Licensee may terminate this Agreement at any time by written notice to the Licensor.
b. Upon any termination of this Agreement for any reason whatsoever, the Licensee’s license and any rights under this Agreement will terminate and the Licensee agrees to:
- i. immediately discontinue using the Software; and
- ii. destroy all Software including copies and portions thereof.
In no event may any of the Software be used by the Licensee for any purpose, including development, following termination of this Agreement. In the event of the termination of this Agreement for any reason, the provisions of those sections which are reasonably intended to survive termination of this Agreement will survive such termination and continue to be valid and binding.
c. In the event that this Agreement is terminated, the Licensee will pay to the Licensor all fees and interest accrued up to the date of termination. The Licensee will provide such payment within ten (10) days of the date of termination.

7. LIMITED WARRANTY, LIMITED LIABILITY AND INDEMNITY

a. The Software and Documentation is provided as is without any warranty of any kind. To the maximum extent permitted by law, the Licensor disclaims any representations, warranties, or conditions, express, statutory or implied, with respect to the Software or the Documentation. The Licensor expressly disclaims all other representations, warranties or conditions, including without limitation any implied or statutory warranties or conditions of merchantability, title, non-infringement or fitness for a particular purpose. The Licensor does not warrant that the Software will meet the Licensee’s requirements or that it will function uninterrupted, error free or that defects will be corrected. The Licensee assumes the entire risk as to the operation, results and performance of the Software. The Licensor has no obligation to remedy any non-conformance or defect in the Software.The Licensor is not responsible for the results of the Licensee’s use of the Software or for any action taken by the Licensee or third parties on the basis thereof.
b. In no event whatsoever will the Licensor be liable for any special, punitive, indirect, incidental or consequential damages, arising out of this Agreement or in connection with the use or inability to use the Software, whether based in breach of contract, tort, negligence, product liability or otherwise, and whether or not the Licensor has been advised of the possibility of such damages. The Licensee assumes the entire risk as to the quality and performance of the Software. In any event, the total liability of the Licensor for all damages whatsoever will not exceed the sum of one thousand ($1,000) dollars. The Licensee agrees that these limitations are reasonable in scope and reasonably necessary in order for the Licensor to protect its considerable investment in the Software. In no event whatsoever will the Licensor be liable, under any circumstances, regardless of the type or cause of action, for
- i. any lost profits, lost revenue or lost business;
- ii. any loss or damage to software or data; or
- iii. any incidental, indirect, punitive, consequential or special damages,
even if the Licensor has been advised of the possibility of such liability or damages.No action or proceeding relating to this Agreement may be commenced by the Licensee more than one (1) year after the cause of action arises.
c. The Licensee agrees to indemnify, defend, and hold harmless the Licensor from and against any and all losses, costs, expenses, claims, or damages arising out of any claim, suit, action, or judgment brought against the Licensor by a third party as a result of the use by the Licensee of the Software, the performance, non-performance, or improper performance of the Software.

8. GENERAL PROVISIONS

a. The headings in this Agreement are for convenience of reference only and will not be considered in the interpretation of this Agreement.
b. This Agreement will be governed by and construed in accordance with the laws of the Province of Alberta, and any dispute stemming from this Agreement will be exclusively submitted to the jurisdiction of the courts of the Province of Alberta. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
c. The Licensor will not be liable to the Licensee for non-performance or delay in performance caused by anything beyond its reasonably control, including without limitation acts of God, acts or omissions of the Licensee, acts of government, war, strikes, lockouts, embargoes, failure of communication networks, or denial of service/access attacks.
d. Termination of this Agreement, for any reason, will not prejudice or affect the accrued rights, claims, and liability of either party.
e. The Licensee acknowledges that the Software will not be exported except as authorized by the laws of the jurisdiction in which the Software was obtained.
f. This Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter of this Agreement. The terms and conditions of this Agreement will prevail exclusively over any written instrument submitted by the Licensee, and the Licensee disclaims any terms therein. If any provision of this Agreement is hold illegal or unenforceable by a court having jurisdiction, such provision will be modified to the extend necessary to render it unenforceable without losing its intent, or severed from this Agreement if no such modification is possible, and the other provisions of this Agreement will remain in full force and effect.
g. This Agreement may be amended only by written instrument signed by a duly authorized representative of the Licensor. A wavier of grant of extension by either party with respect to any term or condition of this Agreement, or any breach of this Agreement, will not constitute a waiver or operate as a grant of extension with respect to any subsequent event or breach, nor constitute a waiver or operate as a grant of extension with respect to any other term, condition or breach.
h. The Licensee may not transfer or assign this Agreement or any rights or obligations in this Agreement without the prior written consent of the Licensor, which may be arbitrarily withheld. Notwithstanding the foregoing, this Agreement will be binding upon and will enure to the benefit of the parties, their successors, and permitted assigns.

Agreement to be Bound. By clicking “Accept” or by using the Software, the Licensee acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions. The Licensee agrees that this Agreement constitutes the complete and exclusive agreement between it and the Licensor with respect to the subject matter of this Agreement and that this Agreement supersedes any proposal or prior agreement, oral or written, and any other communication between the Licensee and the Licensor.

Terms of Service__