STANDARD TERMS AND CONDITIONS
THIS IS A LEGAL AGREEMENT BETWEEN TRACTION SALES AND MARKETING INC. (“TRACTION”) AND YOU. THIS AGREEMENT GOVERNS YOUR USE OF THE APP. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU ARE NOT AUTHORIZED TO USE THE APP. YOUR USE OF THE APP SHALL CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS.
Traction has developed a software application that improves and enhances businesses’ visitor check-in experience, and reception management.
In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Traction and You agree as follows:
Definitions. Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:
“Affiliate” means, with respect to a party, any person, partnership, joint venture, corporation, or other entity, that directly or indirectly controls, is controlled by, or is under common control with such party.
“Agreement” means the agreement between Traction and You for the provision of the App and includes these terms and conditions.
“Anti-Spam Legislation” means all applicable legislation regulating use and misuse of electronic messages and marketing e-mails.
“App” means the provision of Traction’s software application currently described as Traction Guest, including any updates, upgrades, patches, technology, material, modifications, bug fixes, enhancements, data, features, and contents, as it may be added or removed by Traction from time to time and including all written information, documentation, and materials provided to You in respect of same.
“Fees” means the aggregate of all fees payable by You to Traction for the use of the App in accordance with this Agreement, plus all duties, levies, and taxes in association with such fees.
“Intellectual Property” means all systems, applications, software code (in any form, including source code, executable or object code), algorithms, tool-kits, technology, widgets, formulae, programs, concepts, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable), know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes.
“Intellectual Property Rights” means all copyrights, moral rights, rights associated with works of authorship, trademark rights, trade name rights, trade secret rights, patent and industrial property rights (whether registered or not), and other proprietary rights, in Intellectual Property.
"Personal Information" means any information about an identifiable individual, including, without limitation, data or information entered into the App by You or by your customers or clients, that has not been made publicly available.
“You” or “Your” means the party entering into this Agreement with Traction and includes the person, entity, or organization having control of the use of the App and any successor of same. The person agreeing to this Agreement represents and warrants that he / she is authorized to enter into this Agreement on behalf of the party, entity, or organization using the App.
Use and License. You may use the App only in and for Your own internal purposes and business operations. You may only use the App during the term of this Agreement. You may not use the App as a service for any third party. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the App, in whole or in part, is granted except as expressly provided by this Agreement. You shall not modify, copy, create derivative works from, reverse engineer, decompile or disassemble the App. Nothing in this Agreement will entitle You to access or use the source code of the App. You shall not download or use the App (and if downloaded You shall immediately uninstall and destroy the App ) if Your download, installation or use of the App is prohibited under applicable laws.
Your Responsibilities. You are responsible for all of Your use of the App. You shall:
take commercially reasonable actions to prevent unauthorized access to, or use of, the App, and notify Traction promptly of any such unauthorized access or use;
comply with all applicable local, state, provincial, federal and foreign laws in using the App, including without limitation all applicable privacy laws, laws for the protection of Personal Information, and the Anti-Spam Legislation;
not use the App to engage in any deceptive, misleading, illegal or unethical marketing activities or activities that otherwise may be detrimental to Traction;
not collect, use, or disclose any Personal Information in connection with the App, unless you have obtained all necessary consents under all applicable laws to do so;
not attempt to gain unauthorized access to the App;
not upload to, or store within, the App (and Personal Information shall not contain) any infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; and
be responsible for (1) all hardware devices needed to access or use the App, such as display devices, iPads, and the like; and (2) internet access to such devices.
Support. Traction will provide reasonable telephone, web-based, and / or e-mail technical support to You during normal business hours (Pacific Standard Time) on such terms and conditions as Traction reasonably determines. Traction will make reasonable efforts to respond to Your support queries within one business day of Traction’s receipt of a support query. In the event You request services that extend beyond support for the use of the App in its current form, including, without limitation, changes to the design, use, or functionality of the App or upgrades, improvements, modifications, features, changes, customizations, increased functionality, or additions to the App (collectively, “Extended Support”), Traction shall have the option, but not the obligation, to provide Extended Support and in such a case, the parties will enter into an Extended Support agreement on terms and conditions reasonably satisfactory to the parties. Such Extended Support agreement will include terms and conditions customary for Extended Support, including fees or method of calculating fees, specifications of Extended Support, exclusions (if any), and method and manner of providing Extended Support.
“Confidential Information” means any information that is of a confidential nature that is disclosed by one party to this Agreement (the “Disclosing Party”) to the other party to this Agreement (the “Receiving Party”), including, but not limited to the Disclosing Party’s business information, customer information, trade secrets (including all Intellectual Property contained within the App), and Personal Information. Confidential Information does not include any information that is disclosed by one party to another party if that information: (a) is at the time of disclosure in the possession of the Receiving Party or any of its Affiliates and was obtained without an obligation of confidence; (b) is independently developed by the Receiving Party or any of its Affiliates without any use of or reference to the Disclosing Party’s Confidential Information; (c) is or becomes publicly available without breach of any obligation of confidence; (d) is acquired by the Receiving Party from a third party who provided the information without breaking any express or implied obligations or duties to the Disclosing Party; or (e) is intentionally released for disclosure by the Disclosing Party or with the Disclosing Party’s prior written consent.
The Receiving Party will take all reasonable precautions necessary to safeguard the confidentiality of the Confidential Information. The Receiving Party will not make any unauthorized use of the Confidential Information or disclose, in whole or in part, any part of the Confidential Information to any individual or entity, except to those of the Receiving Party’s employees or consultants who require access for the proper operation of the App and only on the condition that such employees or consultants agree to comply with the use and nondisclosure restrictions applicable to the Confidential Information under this Agreement. The Receiving Party acknowledges that any unauthorized use or disclosure of Confidential Information may cause irreparable damage to the Disclosing Party. In all cases, the Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall the Receiving Party use less than a reasonable degree of care.
Notwithstanding the foregoing, You acknowledge and agree as follows:
(1) Traction may collect, analyze, and use metadata resulting from Your use of the App;
(2) certain information may be made available to DocuSign via the App, in accordance with the DocuSign Terms and Conditions and the disclosure of such information shall not constitute a breach of this section.; and
(3) if, but only to the extent that You authorize the use of the App in connection with Third Party Applications, You consent to Traction releasing to such Third Party Developers any Confidential Information entered into the App reasonably required by such Third Party Developers for the proper use of such Third Party Applications, and such Third Party Developer’s use of such Confidential Information shall be governed by your agreement with such Third Party.
6.1 Indemnification by You. You shall defend, indemnify, and hold Traction and its directors, officers, employees, and Affiliates harmless against any loss, damage, or cost (including reasonable attorneys’ fees) incurred in connection with a claim, demand, suit, or proceeding alleging that Your Use of the App has harmed a third party or infringes upon the privacy rights of a third party or is in violation or alleged violation of any Anti-Spam Legislation or does not comply with applicable local, state, provincial, federal and foreign laws, including without limitation all applicable laws and regulations in marketing activities, provided You are notified in writing by Traction as soon as reasonably practicable as to any such claim. Traction shall provide reasonable information, cooperation and assistance in defending any such claim.
6.2 Indemnification by Traction. Traction shall defend, indemnify, and hold You, your directors, officers, employees, and Affiliates harmless against any loss, damage, or cost, and any lawsuit to the extent based thereon, that is brought by a third party against You alleging that the App infringes any patent, trade secret, copyright or other Intellectual Property Rights (“Infringement Claim”), so long as Traction is notified in writing by You as soon as reasonably practicable as to any such claim. You shall provide reasonable information, cooperation and assistance in defending the Infringement Claim. Traction has no obligation with respect to any actual or claimed Infringement if the Infringement Claim is solely caused by Your data, use of the App other than as specified in any documentation provided by Traction, or Your combination of the App with any products, software, services, data or other materials not provided by, required by, or approved by Traction, unless such use is necessary in order to use the App.
Third Party Developers.
7.1 The App utilizes and incorporates Docusign, Inc.’s (“DocuSign”) on-demand electronic signature service (the “Docusign Service”). In addition to the terms contained herein, you agree to be bound by the DocuSign Terms and Conditions For Reseller Customers available at www.docusign.com/company/terms-and-conditions/reseller (the “DocuSign Terms and Conditions”). Without limiting the foregoing, Traction may be required to provide reasonable information regarding You, Your use of the DocuSign Service, and those parties authorized by You to use the App.
7.2 The App may include features that permit you to connect the App to third party applications (“Third Party Applications”) developed by third parties (“Third Party Developers”). You acknowledge and agree that: (1) Traction is not such Third Party Developers and is not an Affiliate of such Third Party Developers; and (2) Traction makes no representations or warranties regarding Third Party Developers, Third Party Applications, or their use of Confidential Information, to anyone, express, implied or statutory (including warranties of design, operation, or fitness for any use or purpose). No representation or warranty by such Third Party Developers is binding on Traction nor shall breach of such representation or warranty relieve You of your obligations to Traction. Third Party Developers may require You to enter into license agreements or pay license fees for the use of their Third Party Applications, which, unless expressly set out herein, are not included in the Fees.
Outage Policy. YOU ACKNOWLEDGE AND UNDERSTAND THAT TRACTION DOES NOT WARRANT THAT THE APP WILL BE UNINTERRUPTED OR ERROR FREE AND THAT TRACTION MAY OCCASIONALLY EXPERIENCE DISRUPTION DUE TO INTERNET DISRUPTIONS OR DISRUPTIONS THAT ARE NOT WITHIN TRACTION’S CONTROL. ANY SUCH DISRUPTION SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT.
Ownership. All Intellectual Property Rights in the App or made available or disclosed to You in the provision of the App are and shall remain the sole and exclusive property of Traction and except for the limited license to use the Intellectual Property as part of Your use of the App in accordance with this Agreement (the “License”), no right, title, or interest is granted in the Intellectual Property. Traction and its Affiliates shall own all rights, title and interest, including all Intellectual Property Rights, in and to any improvements to the App or any new programs, upgrades, modifications or enhancements thereto, even when such refinements and improvements result from Your requests or comments. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Traction or its Affiliates by virtue of this Agreement or otherwise, You hereby transfer and assign to Traction all rights, title, and interest which You may have to such refinements and improvements.
Fees and Payment Terms.
You shall pay all Fees in advance, promptly when due in accordance with the following:
All Fees will be billed monthly or yearly, based on a subscription model, on the first day of the month or the year, as applicable, of the subscription term;
Fees are based on the number of devices being used to access the App, based on the subscription package selected by You from the packages available, as they may be updated from time to time;
In the event you increase the number of devices with access to the App during a subscription term, you must promptly notify Traction and Traction may, at its discretion, increase the Fees based on its then current fee structure;
To the extent that Fees are billed and paid through a third party credit card processor, such third party’s standard terms and conditions shall apply;
Failure to pay Fees shall constitute a material breach of this Agreement;
All outstanding amounts owing under this Agreement will incur interest at a rate of 1.5 percent per month (or if such interest rate is not permitted by applicable law, then the maximum interest rate permitted by applicable law), commencing on the due date, calculated monthly, until such time as they are paid in full;
You are solely responsible for payment of any goods and services taxes, sales taxes, value added taxes, and excise taxes, as applicable (but excluding any taxes attributable to Traction’s income), resulting from your use of the App; and
Except where otherwise expressly provided, all monetary amounts in this Agreement are stated and shall be paid in U.S. Dollars (USD).
Term and Termination.
This Agreement shall commence on the earlier date of (a) Your acceptance of this Agreement; and (b) delivery or download or first use of the App (the “Commencement Date”), and shall continue for one year (the “Initial Term”) unless otherwise agreed to between the parties, in writing, or unless otherwise terminated earlier by either party pursuant to this Agreement. Subject to section 11(b), unless otherwise agreed to between the parties in writing, at the end of the Initial Term (and each renewal term thereafter), this Agreement will automatically renew for additional consecutive periods of same length as the Initial Term.
At the end of the Initial Term, either party may terminate this Agreement without cause upon providing no less than thirty (30) days written notice to the other. Notwithstanding the Initial Term: (a) Traction may also terminate this Agreement for any reason upon thirty (30) days’ written notice; or (b) in the event DocuSign reasonably objects to Your use of the DocuSign Service incorporated into the App, Traction may cease providing the App to You on the date that corresponds with the discontinuance of the DocuSign Service; however, in such a case, Traction will provide You a prorated refund of any prepaid Fees paid by You to Traction.
Either party may terminate this Agreement for cause immediately upon a material breach of this Agreement by the other party. Except in the case of termination by You for cause, termination under this part shall not relieve You of Your obligation to pay any Fees accrued or payable to Traction under the terms of this Agreement and You shall remain obligated to pay all Fees owed for the remainder of any subscription term(s) for the App, all of which Fees shall become immediately due and payable in full.
Upon the termination or expiration of this Agreement, You shall immediately discontinue use of the App on all devices and You shall delete or destroy all electronic and physical stand-alone copies of the App. Upon Your request, provided such request is made within 30 days of the date of termination of this Agreement, Traction will make available a CSV extract of Your data entered into the App, that is in Traction’s possession or control and at the end of that period, Traction will have no obligation to maintain or provide Your data, and Traction may, at its option, delete or destroy all copies of Your data in its possession or control.
Limitation of Liability and Disclaimers
Disclaimer Of Warranties. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN: (1) THE APP IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND; AND (2) TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRACTION AND ITS AFFILIATES EACH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE APP, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE APP, WHETHER MADE BY EMPLOYEES OF TRACTION OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY TRACTION FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF TRACTION WHATSOEVER. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, YOU SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE.
EXCEPT FOR (1) EACH PARTY’S INDEMNIFICATION OBLIGATIONS, AND (2) A BREACH OF YOUR LICENSE TO USE THE INTELLECTUAL PROPERTY AS SET OUT IN SECTION 9 OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL (i) EITHER PARTY OR IT’S AFFILIATES BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION; OR (ii) THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY YOU TO TRACTION UNDER THIS AGREEMENT IN THE YEAR IN WHICH THE CLAIM AROSE.
Changes. Traction reserves the right to modify these terms and conditions at any time. In the event of material changes to this Agreement, Traction will provide notice to you, either through the App, by way of an electronic (including e-mail) notification, or by other reasonable means prior to their enactment, and should you elect not to agree to such modified terms and conditions, your sole remedy shall be to terminate this Agreement in accordance with its terms. Your continued use of the App will be deemed acceptance thereof. In the event you have paid Fees for use of the App in advance, and Traction increases Fees for use of the App, such increase shall not commence until the end of the term for which you have paid Fees.
Trial Accounts. Traction may, but is not obligated to, provide a trial account to You, and this Agreement shall apply to your use of the App during such trial account period.
Proper Law. This Agreement shall be governed by and construed in accordance with the laws of the province of British Columbia and the parties agree to attorn to the exclusive jurisdiction of British Columbia.
Survival. Sections 2, 5, 6, 9, and 12 of this Agreement shall survive any expiration or termination of this Agreement for any reason.
Headings. The headings used in the Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement.
Assignment. This Agreement may not be transferred or assigned by either party without the prior written consent of the other party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may transfer or assign this Agreement (1) to an Affiliate; (2) in the event of a sale, merger or other transfer of substantially all of its business and assets; or (3) in the event of a sale or transfer by Traction of the App and substantially all Traction’s business components required to operate the App, without the other party’s consent. The terms and conditions of this Agreement shall enure to the benefit of and be enforceable by the parties hereto and their permitted successors and assigns
Notice. Any notice or communication from one party to the other required or permitted to be given hereunder shall be in writing and either personally delivered, sent by postal service, sent via courier (with evidence of delivery in any case), or, in the case of notice of changes to these terms and conditions, sent by e-mail or other electronic means. All notices shall be in English and shall be effective upon actual receipt, except for notices sent by e-mail or other electronic means, which shall be deemed to have been received the day after such notices are sent. Unless otherwise requested, all notices to Traction shall be sent to the attention of “Legal” and may be sent by registered mail or courier to #500 - 2700 Production Way, Burnaby, B.C. V5A 0C2. Unless otherwise requested, all notices to You shall be sent to the attention of “Legal” and may be sent by registered mail or courier to the address provided by You at the time of entering into this Agreement, or such other address as you may provide, in writing, to Traction.
Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to, earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, act of terrorism, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including Internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.
Waiver. The waiver by any party hereto of a breach or a default of any provision of this Agreement by another party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
Relationship. The Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of the Agreement. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in the Agreement.
Gender, Plural and Singular. In the Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, “or” is not exclusive” and “including” is not limiting, whether or not such non-limiting language (such as “without limitation” or “but not limited to”) is used with reference to it, and modifications to the provisions of the Agreement may be made accordingly as the context requires.
Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter herein. This Agreement supersedes all previous communications between the parties, whether written or oral, with respect to the subject matter herein.
U.N. Convention. The parties agree that the United Nations Convention on the International Sale of Goods shall not apply to these Terms and Conditions and shall not apply to any purchase order issued in connection herewith.
Last updated: July 5, 2016