Terms and Conditions – Canada

Please click the text to expand the Terms and Conditions

By installing or using GeoTime® software (“Software”) of PENLINK CANADAPENLINK CANADA INC. (“PENLINK CANADA”) you are agreeing to be bound by the following terms and conditions (“Terms of Service”). The Software offered by PENLINK CANADA under the Terms of Service includes computer programs, products, resources and services to help users quickly see what their data has to say to gain greater advantage from that data without overwhelming them. Any new features or tools which are added to the Software shall be also subject to the Terms of Service. You can review the current version of the Terms of Service at any time at https://www.geotime.com/terms-canada. PENLINK CANADA reserves the right to update and change the Terms of Service by posting updates and changes to the GeoTime® website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you.You must read, agree with and accept all of the terms and conditions contained in this Terms of Service agreement and PENLINK CANADA’s Privacy Policy before you may become a Software user. You further agree that this agreement is the complete and exclusive statement of the rights and liabilities of the parties related to the subject matter therein.Notwithstanding any other agreements written or oral, the terms and conditions contained in this Terms of Service govern all aspects of this Software and the rights and obligations of the Licensee and PENLINK CANADA with respect to the Software. These terms and conditions cannot be altered except through written amendment signed by the parties.By using the Software you are agreeing to these terms. Be sure to occasionally check back for updates.

  1. Software License Terms
    1. PENLINK CANADA INC. (PENLINK CANADA) has proprietary rights in GeoTime Desktop, GeoTime Offline Map Pack, GeoTime Glimpse, GeoTime Glimpse Offline, GeoTime Enterprise, GeoTime Live and GeoTime CRT (SOFTWARE), GeoTime® and PENLINK CANADA® are trademarks of PENLINK CANADAPENLINK CANADA INC. Ownership of and title to all Software and all copies thereof, including associated intellectual property rights and copyrights, are and shall remain with PENLINK CANADA.
    2. Use of Software License:
      1. PENLINK CANADA grants you limited rights to use the Software solely for your internal business purposes. Any other use of the Software is not permitted.
      2. No unauthorized copying of the Software, making the Software available to third parties, or attempting to commercialize the Software is permitted.
      3. You may not use, modify, copy or transfer the program, in whole or in part, except as expressly permitted by these Terms of Service. Reverse engineering, decompiling, disassembling the object code, and creating derivative works based on the Software are prohibited.
      4. You may not derive a replacement for the Software, including but not limited to the reproduction of the functionality and look of the user interface nor will you allow anyone else to do so.
      5. You acknowledge that the Software, and elements thereof, constitute valuable trade secrets, proprietary methods and other property of PENLINK CANADA and that the unauthorized use or disclosure of confidential or proprietary information may cause irreparable damage to PENLINK CANADA, who may seek injunctive and other relief as permitted by law.
      6. You hereby grant and assign to PENLINK CANADA all Intellectual Property rights you may now or hereafter possess in the Software, Documentation and Confidential Information, and all derivative works thereof and agree to execute all documents, and take all actions, that may be necessary to confirm such rights.
      7. If this License is terminated for any reason, you agree to return or destroy all copies of the Software and associated documentation, to erase all Software from your systems, and to certify compliance upon request.
      8. You agree that your rights under this Agreement are personal and non- exclusive and may not be assigned or otherwise transferred.
      9. PENLINK CANADA retains the right to audit your use of the Software including but not limited to verifying the number of copies of the Software.
      10. Any breach or violation of any term in the Terms of Service as determined in the sole discretion of PENLINK CANADA will result in an immediate termination of your License(s). Upon such breach, you agree to destroy all copies of the Software and discontinue use thereof.
  2. License Activation
    1. The person installing or using the Software will be the contracting party (“Licensee”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding account we may provide to the Licensee in connection with the Service.
    2. If you are installing or using the Software on behalf of your employer, your employer shall be the Licensee. If you are signing up for the Software on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to our Terms of Service.
  3. General Conditions
    1. Technical support is only provided to active Licensee on a fee for service basis.
    2. For Licensee corporations or Licensee individuals domiciled in the United States this agreement shall be construed in accordance with and governed by the laws of the State of Delaware. For Licensee corporations headquartered or Licensee individuals domiciled in Canada or jurisdictions other than the United States this agreement shall be construed and governed by the laws of the Province of Ontario, Canada. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with the Terms of Service. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service and is hereby expressly excluded.
    3. You acknowledge and agree that PENLINK CANADA may amend these Terms of Service at any time by http://www.geotime.com/legal/terms and such amendments to the Terms of Service are effective as of the date of posting. Your continued use of the Software after the amended Terms of Service are posted to GeoTime® website constitutes your agreement to, and acceptance of, the amended Terms of Service. If you do not agree to any changes to the Terms of Service, do not continue to use the Software.
    4. You may not use the Software for any illegal or unauthorized purpose nor may you, in the use of the Software, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer’s jurisdiction, or the laws of Canada and the Province of Ontario. You will comply with all applicable laws, rules and regulations in your use of the Software.
    5. Publications and Promotion
      1. All materials which contain content created with PENLINK CANADA GeoTime®, such as screenshots and videos, must include the following acknowledgement: “PENLINK CANADA GeoTime® software used courtesy of PENLINK CANADAPENLINK CANADA INC. All rights reserved.”
      2. The Licensee consents to the use of their organization’s name as part of the PENLINK CANADA customer list on PENLINK CANADA and GeoTime® web sites and company presentations.
    6. Customer Responsibilities. You acknowledge that use is not intended for use with protected health information (PHI) under HIPAA, credit card numbers, financial account numbers, or other similarly sensitive personal information, and that You assume all risk arising from use of any such sensitive information, including the risk of any inadvertent disclosure or unauthorized access thereto. You are responsible for ensuring that Your users’ use of the PENLINK CANADA Service is in compliance with all applicable laws and governmental regulations and You acknowledge that You assumes all risk arising from any such use that is not compliant with applicable laws. You confirm that you have the necessary authorization(s) to possess, collect and use the data being hosted on the PENLINK CANADA Service.
      1. “PHI” means (i) “protected health information” as defined in 45 CFR § 160.103, and (ii) any other patient or health information protected by the Health Insurance Portability and Accountability Act of 1996, as it may be amended from time to time (“HIPAA”), including the regulatory revisions implemented pursuant to the Health Information Technology for Economic and Clinical Health Act (the “HITECH ACT”).
    7. Questions about the Terms of Service should be sent to [email protected].
    8. You acknowledge and agree that your use of the Software, including information transmitted to or stored by PENLINK CANADA, is governed by its privacy policy at http://www.geotime.com
    9. The parties have required that the Terms of Service and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents que s’y rattachent soient rédigés en anglais.
    10. Customers using a concurrent license server are not authorized or licensed to use any undocumented, unsupported or experimental capabilities found within the software. PENLINK CANADA reserves the right to charge additional fees for new capabilities once they are officially supported. Customers will be notified when such capabilities are supported.
    11. With respect to the Glimpse service, we will use our best efforts to detect breaches to the system. We will inform Customers as soon as reasonably possible of discovering a breach of security.
      1. Updates: PENLINK CANADA shall deliver updates to the latest version of the PENLINK CANADA Service without prior notice. From time to time, new components or features may be released. Only those updates that apply to the latest version will be delivered automatically. PENLINK CANADA makes no representations with respect to the availability of legacy features or legacy formats.
  4. Software Rights
    1. We reserve the right to modify the Software for any reason, without notice at any time.
    2. We reserve the right to refuse Software to anyone for any reason at any time.
    3. We reserve the right to provide our software and services to any customer and you acknowledge that such software and services are provided on a non-exclusive basis.
    4. In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm the Licensee Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc.
  5. Limitation of Liability
    1. You expressly understand and agree that PENLINK CANADA (including herein is affiliates) shall in no event not liable to you or to any other person or entity for any direct, indirect, economic, incidental, special, tort or consequential damages or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses arising out of the provision of the products, software, or services or in any way arising out of this agreement, whether in an action arising out of breach of contract, breach of warranty, delay, negligence, strict tort liability, or any other theory. PENLINK CANADA total aggregate liability for damages stemming from this agreement irrespective of their nature is limited to $100.00.
    2. You agree to indemnify and hold us and (as applicable) our subsidiaries, affiliates, PENLINK CANADA partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
    3. Your use of the Software is at your sole risk. The Software is provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
    4. PENLINK CANADA does not warrant that the Software will be uninterrupted, timely, secure, or error-free. PENLINK CANADA, its agents, affiliates, contractors, and suppliers do not make any express or implied warranties, including, without limitation, implied warranties of merchantability, quality, or fitness for a particular purpose or noninfringement.
    5. PENLINK CANADA does not warrant that the results that may be obtained from the use of the Software will be accurate or reliable.
    6. PENLINK CANADA does not warrant that the quality of any products, services, information, or other material purchased or obtained by you through the Software will meet your expectations, or that any errors in the Software will be corrected.
  6. Waiver and Complete Agreement
    1. The failure of PENLINK CANADA to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and PENLINK CANADA and govern your use of the Service, superseding any prior agreements between you and PENLINK CANADA (including, but not limited to, any prior versions of the Terms of Service).
  7. Intellectual Property and Customer Content
    1. We will not disclose your confidential information to third parties, except as required in the course of providing our services. Confidential information includes any materials or information provided by you to us which is not publicly known. Confidential information does not include information that: (a) was in the public domain at the time we received it; (b) comes into the public domain after we received it through no fault of ours; (c) we received from someone other than you without breach of our or their confidentiality obligations; or (d) we are required by law to disclose.
  8. Orders, Fees, and Delivery
    1. Prices are in U.S. Dollars and are subject to change without notice unless otherwise stipulated in the quote.
    2. Prices quoted are based upon fulfillment of the entire order. Any changes are subject to a revised quotation. Quotes are valid for 120 days.
    3. All software and licenses are fulfilled via electronic download. Physical DVD media is also available for an additional fee.
    4. All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”). Where applicable, Taxes and duties are in addition to fees quoted. You are responsible for payment of all applicable taxes, unless otherwise agreed upon and stated in writing.
    5.  Annual maintenance is required in the first year. Customers under maintenance subscription receive new releases of the product that include enhancements, optimizations, and defect fixes. If maintenance is declined in later years and then subsequently requested, all skipped maintenance periods must be paid in full in order to receive new releases and to incorporate maintenance support.
    6. User and technical support is provided on a fee for service basis.
    7. License transfers within an organization are subject to an additional fee.
    8. For floating licenses, customer is responsible for providing and maintaining the Windows license server machine and for network connectivity from each user to the GeoTime® license manager server on the Windows license server.
    9. Integration services are provided on a fee for service basis.
    10. End user training is provided via web service on a fee per training group basis. On-site training is available for an additional fee.
    11. The GeoTime® Call Record Tool (CRT) is a software product of PENLINK CANADA sold separately. The CRT product is licensed annually and is provided co-terminus with GeoTime maintenance. CRT is updated regularly for changes in Telco call detail record formats. Due to constantly changing call detail record formats PENLINK CANADA does not warrant that the product is current for a particular specific call detail record at any point in time. Customers should regularly update the software prior to creating reports. The CRT software product expires every four months due to these constantly changing call detail record formats. After expiry, the CRT software product will not function and Customers must perform a new download to again use the product. Customers are required to renew GeoTime maintenance and CRT to continue to use the CRT software product in succeeding years.
    12. Invoice payment terms: net 30 days.
    13. PENLINK CANADA does not provide refunds.
  9. Cancellation and Termination
    1. You may cancel your License at any time by emailing[email protected] and then following the specific instructions indicated to you in PENLINK CANADA’s response.
    2. Upon termination of the Services by either party for any reason:
      1. unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any Fees, pro rata or otherwise;
      2. any outstanding balance owed to PENLINK CANADA for your use of the Software through the effective date of such termination will immediately become due and payable in full; and
    3. If at the date of termination of the Service, there are any outstanding Fees owing by you, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.
    4. We reserve the right to modify or terminate the PENLINK CANADA Service or your License for any reason, without notice at any time.
    5. Fraud: Without limiting any other remedies, PENLINK CANADA may suspend or terminate your License if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Software.
  10. Modifications to the Service and Prices
    1.  Prices for the Software are subject to change upon 30 days’ notice from PENLINK CANADA. Such notice may be provided at any time by posting the changes to the GeoTime® Site (www.geotime.com).
    2. PENLINK CANADA reserves the right at any time, and from time to time, to modify or discontinue, the Service (or any part thereof) with or without notice.
    3. PENLINK CANADA shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.

PENLINK CANADA INC.
Toronto, Ontario
Canada

  1. Terminology
    • Pen-Link Software. Pen-Link Software is software developed and manufactured by Penlink Canada, Inc.
    • Pen-Link Customer (also “Customer”). A Pen-Link Customer, or Customer, is any agency or other entity that has one or more current, valid Licenses for Pen-Link Software purchased from or through Penlink Canada, Inc.
    • Basic Technical Support Package. Entitles our customers to normal business hours telephone support at Penlink Canada, Inc.’s published number and/or assistance via e-mail.
    • Standard Maintenance and Support. Standard Maintenance is a Maintenance option that includes Software Updates, Software Upgrades, and Basic Technical Support as defined herein.
    • Premium Maintenance and Support. Premium Maintenance is a Maintenance option that includes Software Updates, Software Upgrades, and Premium Technical Support as defined herein.
    • Software Update. A Software Update is an enhancement including additions, changes, and bug fixes to Pen-Link Software that is already in the applicable commercial market. Software Updates occur within the same major version number of an existing software product. For example, replacing Pen-Link v8.1.29.0 with Pen-Link v8.1.30.0 would constitute a Software Update. Such an update is often referred to as a New Build of the Pen-Link Software.
    • Software Upgrade. A Software Upgrade is the replacement of an older major version of an existing Pen-Link Software product or products, with a newer major version of a Pen-Link Software product or products, to the extent required to maintain the same operational functionality that was supported by the Pen-Link Software prior to the upgrade. For example, upgrading from Pen-Link Version 7 to Pen-Link Version 8 (where 8 is the newer major version) would constitute a Software Upgrade, so long as the installation of the newer version of the PenLink Software supported at least the same operational functionality that the Customer had under Pen-Link version 7. Upgrades do not apply to new software products that Penlink Canada, Inc. may release to the commercial market from time to time in the future.
    • Basic Technical Support (also “Basic Support”). Basic Technical Support is a Support option that includes telephone-based Technical Support for the Pen-Link Software licensed by the Customer. Basic Technical Support also includes assistance via email or other automated processes such that Penlink Canada, Inc. may deem fit to offer. Basic Technical Support may be obtained by contacting Penlink Canada, Inc.  via its published, main telephone number (currently 402-421-8857), its general support email account ([email protected]), or its World Wide Web site (www.penlink.com). Basic Technical Support is available Monday through Friday, from 8:00 AM to 5:00 PM Central time, except for holidays.
    • Premium Technical Support (also “Premium Support”). Premium Technical Support is a Support option that includes all of the support services offered with Basic Technical Support (Section 1.8), plus Emergency After-Hours support for live communication interception and collection operations. Emergency After-Hours support services may be accessed through methods, including telephone access, that are provided to the customer at the time of purchase. Emergency After-Hours support services are available Monday through Friday, from 5:01 PM – 7:59 AM Central time and all-day Saturday & Sunday, including holidays.
    • Maintenance and Support Agreement (“Agreement”). This Maintenance and Support Agreement is the Agreement between Penlink Canada, Inc. and the Customer regarding the terms and conditions under which the Maintenance and Support Services described in this document are purchased and provided.
  1. Software
    • Maintenance is an optional service offered by Penlink Canada, Inc.. to augment a purchase of Pen-Link Software.  Maintenance may be purchased by a Pen-Link Customer along with, or subsequent to, the purchase of Pen-Link Software.
    • Maintenance is offered only pursuant to a Maintenance and Support Agreement between the Customer and Penlink Canada, Inc.
    • Penlink Canada, Inc. offers two levels of Maintenance that a Customer may purchase: Standard Maintenance and Premium Maintenance, as defined in Sections 1.4 and 1.5 respectively.
    • Maintenance applies only to software developed and manufactured by Penlink Canada, Inc. Maintenance does not apply to software developed and manufactured by companies other than Penlink Canada, Inc.  Unless otherwise specified in a separate, written agreement between Penlink Canada, Inc.  and the Customer, to which Penlink Canada, Inc.  is a signatory party, Maintenance does not include updates, upgrades, or bug fixes to, or new releases of, any third-party software or hardware purchased through Penlink Canada, Inc.  or with the assistance of Penlink Canada, Inc.  Support for third party software and hardware products bundled with Penlink Canada, Inc.  licensed Pen-Link Software is available only according to the third-party manufacturer’s support policies.
    • All Maintenance deliveries are subject to the terms and conditions of the applicable End User License Agreement EULA for the Licensed Software.
  1. Technical Support (“Support”)
    • Technical Support is an optional service offered by Penlink Canada, Inc. to support a Customer in the authorized use of licensed PenLink Software.
    • Support is offered only pursuant to a Maintenance and Support Agreement between the Customer and Penlink Canada, Inc.
    • Penlink Canada, Inc. offers two levels of Technical Support: Basic Technical Support and Premium Technical Support, as defined in Sections 1.8 and 1.9 respectively.
    • Penlink Canada, Inc. will make every reasonable attempt to answer a Customers Support questions and address a Customer’s Support concerns. However, Support is offered on a good faith, diligent effort basis only, and Penlink Canada, Inc.  may not be able to resolve every request for Support.
    • Technical Support is provided for ongoing, operational use of the licensed Pen-Link Software; Support is not intended to be a substitute for training or professional services necessary for the implementation or system redesign of the licensed Pen-Link Software, which are outside the scope of this agreement. All such services, including without limitation, training, on-site assistance, consultation, custom programming and other software customizations, network design, and database and network administration, may be provided pursuant to separate agreements with and by Penlink Canada, Inc.
    • Unless otherwise specified in a separate, written agreement between Penlink Canada, Inc. and the Customer, to which Penlink Canada, Inc.  is a signatory party, Support is available only for the current and immediately preceding version of the licensed Pen-Link Software. Support for a previous version of Pen-Link Software is provided up to a maximum of eighteen (18) months after the release of the current version of software, provided that the Customer and Penlink Canada, Inc.  are parties to a current Maintenance and Support Agreement.
    • Unless otherwise specified in a separate, written agreement between Penlink Canada, Inc. and the Customer, to which Penlink Canada, Inc.  is a signatory party, Support does not include any of the following:
      • Support for database products or so-called DBMS or Database Management Systems, including without limitations, setup and alteration and/or configuration of such products, and resolution of errors related directly to such products.
      • Resolving network, workstation, or other environmental errors not directly related to the licensed Pen-Link Software.
      • Support for any licensed Pen-Link Software working on or with any version of any database, Database Management System, operating system, or other hardware or software product or system that is not specifically identified as interoperable and compatible with the specific version of the license Pen-Link Software being used.
      • Support for any alpha, beta, or other preproduction release of any software, including Pen-Link Software.
      • Support for any changes to Pen-Link Software made outside of the product s scope by a customer or by any third party.
      • Support for any licensed Pen-Link Software that is used for a purpose, or in a manner, for which it was not designed.
  1. Terms and Conditions
    • Maintenance and Support Agreements are options made available by Penlink Canada, Inc. for a Customer to purchase.
    • Maintenance and Support Agreements are offered on an annual basis.
    • Unless otherwise specified in a separate, written agreement between Penlink Canada, Inc. and the Customer, to which Penlink Canada, Inc.  is a signatory party, Maintenance and Support Agreements will renew automatically at the end of each annual term, provided that the Customer pays the applicable renewal fees.
    • Unless otherwise specified in a separate, written agreement between Penlink Canada, Inc. and the Customer, to which Penlink Canada, Inc.  is a signatory party, a Customer’s Maintenance and Support Agreement is to be paid at the start of each annual term.
    • The Customer will be invoiced prior to any annual Maintenance and Support term (initial or renewal terms). The Customer agrees to make payment to Penlink Canada, Inc. no later than thirty (30) days from the date of the invoice, unless otherwise agreed upon in writing. Unless otherwise instructed, the Customer will make payment directly to Penlink Canada, Inc.
    • Penlink Canada, Inc.’s obligations hereunder are subject to the Customer s timely payment for Maintenance and Support. Failure of the Customer to pay fees in a timely manner for any term of Maintenance and Support may, at the sole discretion of Penlink Canada, Inc. , result in the termination or suspension of Maintenance and Support services.
    • Lapses and Reinstatement. If a Customer s Maintenance and Support agreement terminates as a result of expiration or otherwise pursuant to this Agreement, and the Customer decides to reinstate the Agreement, the Customer will be required to pay the applicable Maintenance and Support fees for the lapsed period (the time elapsed between the Agreement expiring and subsequently being reinstated), plus a reinstatement fee equal to 10% of the fees for the lapsed period.
    • The Customer is responsible for payment of all applicable taxes, value added taxes, or other taxes (however designated) related to the Maintenance and Support of the Licensed Software, unless otherwise agreed upon and stated in writing.
    • This Agreement will automatically terminate for each Licensed Pen-Link Software product upon termination of the EULA corresponding to such Pen-Link Software product.
    • The Customer may terminate this Agreement for Convenience, but the Customer will not be entitled to a refund of any paid fees in such an event.
    • Additional Orders. Orders by the Customer for additional Pen-Link Software products or additional licenses of Pen-Link Software products will increase the Customers Maintenance and Support fees under this Agreement.
    • We reserve the right to impose a convenience fee of 2.0% for credit card processing on amounts over $10,000.
  1. Warranty and Liability Disclaimer
    • Penlink Canada, Inc. warrants that the Maintenance and Support services provided to the Customer under this Agreement shall be performed with due care, and in a professional and workmanlike manner. Penlink Canada, Inc.  does not otherwise warrant the accuracy or completeness of any services provided pursuant this Agreement. PENLINK CANADA, INC.  DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, IN CONNECTION WITH THE SUBJECT OF THIS AGREEMENT. IN NO EVENT, UNDER ANY THEORY OF LAW, SHALL EITHER PARTY AND/OR ITS AFFILIATES BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS AND/OR ITS AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PENLINK CANADA, INC.’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE PREPAID AND UNUSED PORTION OF THE CUSTOMER S MAINTENANCE AND SUPPORT FEES PAID TO PENLINK CANADA, INC.  PENLINK CANADA, INC.  SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY SERVICES PROVIDED BY ANY PARTNER OR ANY OTHER THIRD PARTY.
    • It is the sole responsibility of the Customer to make and maintain adequate backup copies of software and data.
    • In no event will Penlink Canada, Inc. be responsible for lost data.
  1. Miscellaneous
    • Entire Agreement. This Agreement constitutes the entire Agreement between the Customer and Penlink Canada, Inc. related to the subject matter hereof, and additions or modifications shall be binding upon the parties only if the same shall be in writing and duly executed by the Customer and a duly authorized officer of Penlink Canada, Inc.  The Licensed Pen-Link Software is licensed under a separate End User License Agreement (EULA) and professional services, if any, are provided under a separate professional services agreement. The terms and conditions of any Customer purchase order are only binding on Penlink Canada, Inc.  if they are agreed to in writing by an authorized Penlink Canada, Inc.  officer and in a document other than the purchase order.
    • The waiver or failure of either party to exercise in any respect any right shall not be deemed a waiver of any further or future right.
    • The Customer may assign this Agreement only in connection with a proper and valid assignment of the corresponding EULA to the extent permitted there under; provided that the Customer gives written notice of such assignment to Penlink Canada, Inc. Penlink Canada, Inc.  may freely assign this Agreement to a purchaser of that portion of Penlink Canada, Inc.  business to which this Agreement relates, to the surviving corporation in the event of a merger, and to any affiliate or third-party whom Pen-Link authorizes to provide Maintenance and Support for the Licensed Pen-Link Software of the nature contemplated hereby.
  1.  Proprietary and confidential information
    1. Nothing in this Proposal shall be deemed to grant to the Customer and/or End User any rights in patents, copyrights, proprietary information and trade secrets in the hardware, licensed software, documentation and services (collectively, the Deliverables). Customer and/or the End User shall retain and shall not remove or destroy any copyright, trademark, logos or other intellectual property rights legends or notices placed or contained in the Deliverables.
    2. The Terms of this Proposal are confidential and may only be disclosed on a need to know basis, and in any event, may not be disclosed to any third party. Customer and End Users are prohibited from disclosing use of the Deliverables, names of Penlink Canada, Inc. .’s tools and technologies, the existence of this agreement or the relationship between Customers and End Users and Penlink Canada, Inc. to any third party, without the prior written consent of Penlink Canada, Inc. .. Customers and End Users affirm that they will not reference Penlink Canada, Inc. (including any Penlink Canada, Inc. tool or technology) or use the output of the Deliverables in any judicial, regulatory or other government proceeding or disclose such information publicly in any forum, without Penlink Canada, Inc. .’s prior written consent. In addition, Customers and End Users shall refrain from referencing Penlink Canada, Inc. and any Penlink Canada, Inc. tool or technology in using the Deliverables electronically.
  2. Product and software licenses
    1. The Deliverables, including the licensed software and the documentation are owned by Penlink Canada, Inc. and/or its affiliates and/or its suppliers and are protected by patent, trade secrets, trademarks, and copyright laws and international treaty provisions. Penlink Canada, Inc. will grant to the End User a limited, non-transferable and non-exclusive license to the extent required to use and operate the licensed software pursuant to the Terms of this Proposal. The grant for this license is included in the proposed price.
    2. Restrictions On Use: Neither the Customer nor the End Users shall, without Penlink Canada, Inc. .’s prior written permission (i) use or permit the use of the licensed software and/or the documentation for any purpose or use other than the operation of the product supplied by Penlink Canada, Inc. in accordance with its intended use; (ii) transfer, export, resell, ship or divert the licensed software and/or the documentation to any third party; (iii) reverse engineer, disassemble, or decompile the licensed software in any form or by any means or modify the licensed software or (iv) copy the licensed software and/or the documentation.
    3. All products are provided with a 90-day temporary license. A perpetual license key shall be provided to the End User upon completion of payments, and subject to compliance with the Terms of this proposal.
  3.   Taxes
    1. The prices in this Proposal do not include any customs, duties, value added tax or any other assessments which may be levied by the relevant authorities. Any such amounts, whether withheld at source or otherwise, will be paid by the Customer/End Users. In order to avoid any doubt, in the event that taxes are withheld, then such withholding taxes shall be added to the payment due Penlink Canada, Inc. ., and the Proposal price shall be grossed up to include such taxes.
  4.   Limitation of liability
    1. PENLINK CANADA, INC. makes, and Customer and End User receive, no warranties or conditions of any kind, express, implied or statutory, related to or arising in any way out of this Agreement, the Services and Deliverables provided pursuant to it. PENLINK CANADA, INC. specifically disclaims any implied warranty of merchantability, fitness for a particular purpose and non- infringement of any third party rights. In no event shall PENLINK CANADA, INC. be liable for indirect, consequential or incidental damages (including damages for loss of profits, revenue, data or use) arising out of this Agreement or incurred by any Customer or End User, whether in an action in contract or tort, even if PENLINK CANADA, INC. has been advised of the possibility of such damages. PENLINK CANADA, INC. maximum amount of liability for damages hereunder shall in no event exceed the amount paid by the Customer or End User directly to PENLINK CANADA, INC. and nothing else.
  5. Operation – product and software
    1. Use of the Deliverables shall be in accordance with applicable laws and shall be the exclusive province and responsibility of Customer and the End Users. Penlink Canada, Inc. will not engage in operation or use of Deliverables on behalf of Customer or End Users. Customer and/or End Users shall indemnify Penlink Canada, Inc. and its suppliers for any claims made against Penlink Canada, Inc. and/or its suppliers in this regard. To the extent that use of certain aspects of the Deliverables, require use of an account and password, Customer and End Users are solely responsible for maintaining the confidentiality of the account and password and for restricting access to computers, and agree to accept responsibility for all activities that occur under any account or password. Customer may be liable for losses incurred by Penlink Canada, Inc. or others due to any unauthorized use of the Deliverables, including any software, services or account.
  6. Permits
    1. It should be the exclusive responsibility of the Customer to obtain any, and all, applicable permits, including but not limited to, marketing and export permits, as may be required under applicable export control law.
  7.  Data Access and Privacy Policy
    1. Customers and End Users may choose to allow the Deliverables to automatically retrieve data from your system(s) or third-party systems, accounts or web sources or services or to call the servers of other websites or services solely at the direction of and as a convenience to Customers and End Users (individually or collectively “Third Party Sites“), on your behalf and/or you may use the Deliverables to do so, at your direction. Customer and End Users agree that all actions taken through the Deliverables are the acts of the Customer and its End Users and not Penlink Canada, Inc. In order to connect the Deliverables to access or retrieve data from any third-party system, services or Third Party Sites, Customer and End Users hereby agree that such connection, access or retrieval shall be done at their sole direction and control.
    2. Customer and End Users represent and warrant that they have all valid, relevant legal authority to carry out search activities and online access of your systems or Third-Party Sites, online accounts or other web sources, pursuant to relevant law governing their law enforcement or similar governmental role and pursuant to the relevant law governing the jurisdiction(s) in which they operate. Customer and End Users represent and warrant that they have permission, authority and rights to use the Deliverables to access Third Party Sites, online accounts or other web sources and/or to allow automatic access to such system(s), services, Third Party Sites, online accounts or other web sources and retrieve data therefrom by indicating the same within the user interface of the Deliverables. Customers and End Users represent and warrant that their use of the Deliverables will not violate any relevant terms of service, privacy policy, other agreements governing such Third-Party Sites, accounts or web sources, or any express or implied communication, request or demand from any third party. Customers and End Users represent and warrant that they have the right to access Third Party Sites, online accounts or other web sources pursuant to relevant terms of service or other agreements governing such accounts or web sources, or other valid sources of legal authority. Any action performed in the Deliverables by the Customer or End Users and/or data storage and/or any possible
    3. violation of a Third-Party Site’s, online account’s or other web source’s policies or terms are the sole responsibility of Customer and its End Users and are acts carried out by Customer and its End Users. Penlink Canada, Inc. disclaims any and all liability associated with accessing and retrieving data from such system(s), services, Third Party Sites, accounts or web sources. IF AT ANY TIME CUSTOMER DOES NOT HAVE THE RIGHT AND AUTHORITY TO USE THE DELIVERABLES TO ACCESS, RETRIEVE DATA OR CONNECT TO OR TO AUTOMATICALLY ACCESS, RETRIEVE DATA OR CONNECT TO SUCH SYSTEM(S), SERVICE(S), THIRD PARTY SITES, ACCOUNTS OR WEB SOURCES, THEN CUSTOMER AND END USERS HEREBY AGREE TO IMMEDIATELY CEASE USE OF THE DELIVERABLES AND CEASE ACCESS TO SUCH RESOURCES.
    4. Restrictions on use: Neither the Customer nor the End Users shall, without Penlink Canada, Inc.’s written permission (i) use or permit the use of the Deliverables, including the licensed software and/or the documentation, for any purpose or use other than the operation of the product supplied by Penlink Canada, Inc. in accordance with its intended use; (ii) divert the Deliverables, including the licensed software and/or the documentation, to any third party; (iii) reverse engineer or decompile the licensed software in any form or by any means or modify the licensed software or (iv) copy the Deliverables, including the licensed software and/or the documentation.
    5. The Deliverables enable effective searches of open source information from the web. As a policy, Penlink Canada, Inc. doesn’t intentionally collect or store personal information in its databases for any usage.
    6. Customer and End Users represent, warrant, and agree that: (a) they have obtained data lawfully, and such data does not and will not violate any applicable laws or any person or entity’s rights, including such person’s privacy, proprietary or intellectual property or moral rights; (b) the data is free of all viruses, Trojan horses, and other elements that could interrupt or harm the systems or software of Penlink Canada, Inc.; (c) Customer and End Users are solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to data accessed, collected and/or stored hereunder; and (d) the data complies with the terms of these Terms. For purposes of clarity, Penlink Canada, Inc. takes no responsibility and assumes no liability for any data, and Customer and End Users will be solely responsible for their data and the consequences of access, collecting, storing, sharing or disclosing it hereunder. Penlink Canada, Inc. will not be responsible for any backup, recovery or other steps required to ensure that data is recoverable in the case of data loss. Customer and End Users are solely responsible for backing up their data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of their data.
  8. Product and software licenses
    1. The licensed software and the documentation are owned by Penlink Canada, Inc. and/or its affiliates and/or its suppliers and are protected by patent, trade secrets, trademarks, and copyright laws and international treaty provisions. Penlink Canada, Inc. will grant to the Customer and its End Users a limited, non-transferable and non-exclusive license to the extent required to use and operate it pursuant to the Terms of this Proposal. The grant for this license is included in the proposed price.
  9.  Indemnity
    1. Customer and End User agree to defend, indemnify and hold harmless PENLINK CANADA, INC. (as defined in ¶4.4) from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) Customer’s and/or End Users’ modification or misuse of and/or improper granting of access to the Deliverables; (b) Customer’s or End Users’ violation of any of the terms of this Agreement including without limitation, breach of any of the representations and warranties above; (c) Customer’s and/or End Users’ violation of or data violating any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) Customer’s and/or End Users’ violation of any law, rule or regulation of the United States or any other country; (e) any claim for damages that arise as a result of any of Customer’s and/or End Users’ data or any other data that are collected or submitted through use of the Deliverables; or (f) any other party’s access and use of the Deliverables provided by Customer and/or End Users.
    2. Penlink Canada, Inc. will have the right to control the defense, settlement, adjustment or compromise of any such claims, actions or proceedings by using counsel selected by Penlink Canada, Inc. .. Penlink Canada, Inc. will use reasonable efforts to notify Customer of any such claims, actions, or proceedings upon becoming aware of the same.
  10. Miscellaneous
    1. Notice and Modifications. Penlink Canada, Inc. may provide Customer and End Users with notices, including those regarding changes to Penlink Canada, Inc. terms and conditions, by email, regular mail, or postings on a service through the Deliverables. Notice will be deemed given twenty-four (24) hours after email is sent, unless Penlink Canada, Inc. is notified that the email address is invalid. Alternatively, Penlink Canada, Inc. may give Customer legal notice by mail to a postal address, if provided by Customer. In such case, notice will be deemed given three days after the date of mailing. Notice posted on a service through the Deliverables is deemed given five (5) days following the initial posting. Penlink Canada, Inc. reserves the right to determine the form and means of providing notifications to Customer and End Users. Penlink Canada, Inc. is not responsible for any automatic filtering Customer, End Users or their network providers may apply to email notifications Penlink Canada, Inc. sends to the email address provided. Penlink Canada, Inc. may, in its sole discretion, modify or update these Terms from time to time, and so Customer and End Users should review this page periodically. Customers’ or End Users’ continued use of the Service after any notice of change constitutes acceptance of the new Terms. If any such revision is unacceptable to Customer or End Users, their only remedy is to cease use of Penlink Canada, Inc. Deliverables. If Customer or End Users do not agree to any of these terms or any future Terms, do not use or access (or continue to access) the Deliverables.
    2. Waiver. The failure of Penlink Canada, Inc. to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Penlink Canada, Inc.
    3. Severability. If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions; except that in the event of unenforceability of the Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
    4. Assignment. These Terms and any rights and licenses granted hereunder, may not be transferred or assigned by Customer or End Users, but may be assigned by Penlink Canada, Inc. without restriction or any need for authorization from Customer.
    5. Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, shall survive such termination or expiration.
    6. Headings. The heading references herein are for convenience only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
    7. Entire Agreement. This, including the agreements incorporated by reference, constitutes the entire agreement between you and Penlink Canada, Inc. relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change made by Penlink Canada, Inc. as set forth in these Terms.
  11. Governing Law; Venue; Waiver of Jury Trial
    1. This Agreement and any dispute of any sort that might arise between the Parties shall be governed by the laws of the Province of Ontario without regard to choice of law principles. The federal and provincial courts located in Ontario shall have the sole and exclusive jurisdiction over any disputes arising under the terms of this Agreement. The Parties hereby expressly consent to such exclusive jurisdiction and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. Each Party waives the right to trial by jury in any action arising out of or relating to this Agreement.