Terms and Conditions
LICENSE AGREEMENT TERMS AND CONDITIONS
These Terms and Conditions located at https://facilisgroup.com/terms-and-conditions-canada/ together with the License Agreement that is governed by these Terms and Conditions (collectively, the “Agreement”) constitute a binding agreement between Facilisgroup Canada Inc., an Ontario, Canada corporation (hereinafter referred to as “Facilisgroup”) and Licensee (each a “Party”) pursuant to which Facilisgroup provides Licensee access to its “Signature Collection” website and “Syncore” platform, which host software products and applications.
A. Facilisgroup is the owner of certain Intellectual Property rights (as that term is more fully defined herein) in relation to certain business systems and methodology relating to the ordering, purchasing, cataloguing, marketing, promotion, distribution, and sales of various articles; certain data relating to the ordering, purchasing, cataloguing, marketing, promotion, distribution, and sales of articles, including without limitation suppliers’ names, addresses, products, pricing and supply information; the “Signature Collection” website; and a work titled “SYNCORE”, a software product and application which, among other things, provides contact and order management in the context of the ordering, purchasing, cataloguing, marketing, promotion, distribution, and sales of articles.
B. Pursuant to the provisions of this Agreement, Licensee is desirous of utilizing certain elements of the Intellectual Property and the Facilisgroup trademark(s) and logo(s) (the “Trademarks”).
For the purposes of this Agreement the following words shall have the meanings
ascribed to them as follows:
1. “Confidential Information” means:
a. all data and information in any form whatsoever relating to the business and operation of Facilisgroup, including proprietary and trade secrets, technology and accounting records, and the Intellectual Property; and
b. information disclosed by any party to this Agreement in writing or in any other manner that is noted as confidential at the time of disclosure, either orally or in writing; but does not include any data or information which:
1. is or becomes publicly available through no act or omission of the other party;
2. is already in the rightful possession of the other party prior to its receipt from the other party;
3. is independently developed by the other party;
4. is obtained by the other party from a third party who is not under any restrictions to disclose;
5. is disclosed with the written consent of the party whose information it is; or,
6. is disclosed under operation of law.
2. “Effective Date” means the effective date set forth on the face of the License Agreement.
3. “Intellectual Property” means all right, title and interest in:
a. Facilisgroup’s business system and methodology relating to the ordering, purchasing, cataloging, marketing, promotion, distribution, and sales of articles, including all copyright, trade secrets, confidential information, inventions, rights of invention, patents, and designs in relation thereto;
b. Facilisgroup’s websites and access portals including all URLs, content, images, text, lists, designs, HTML, Java or other code, links, copyright, trade secrets, confidential information, inventions, rights of invention, and patents in relation thereto;
c. Facilisgroup’s data, databases and functional elements relating to the ordering, purchasing, cataloguing, marketing, promotion, distribution, and sales of promotional articles, including without limitation searchable online catalogues and online order systems, suppliers’ names, addresses, vendor agreements, products, product descriptions, images, pricing, supply information, invoicing and tracking systems, employee statistics and sales information, including all copyright, trade secrets, confidential information, inventions, rights of invention, patents, and designs in relation thereto;
d. the source code, object code, layout, configuration, architecture, data and all copyrights (including the right to file copyright applications anywhere in the world and the right to any registrations resulting therefrom), trademarks (including the right to file trademark applications anywhere in the world and the right to any registrations resulting therefrom), trade secrets, confidential information, inventions, rights of invention, patents, designs (including the right to file patent applications anywhere in the world in respect of any invention and the right to any patents resulting therefrom), patents, designs (including the right to file design applications anywhere in the world and the right to any registrations resulting therefrom) and all other rights in relation thereto in relation to the “Syncore” software product and application;
e. the “Signature Collection” website and the “Syncore” software; and
f. the Facilisgroup Trademarks.
GRANT OF LICENSE:
4. Subject to the terms and conditions set forth in this Agreement, during the term of this Agreement, Facilisgroup hereby grants to Licensee a limited, personal, non-exclusive, non-sublicensable, non-assignable, and cancellable license to use Intellectual Property and:
a. to access the “Signature Collection” website and the “Syncore” software stored on an Internet-accessible computer;
b. to utilize the “Signature Collection” website and the “Syncore” software stored on an Internet-accessible computer for the purposes of viewing, storing and accessing data;
c. to make available on the Internet a retail site for the sale of promotional and other articles which displays a searchable online catalogue, including product indices, descriptions, images and pricing;
d. to utilize the Facilisgroup Trademarks in association with Licensee’s Internet retail site in relation to the online sales of promotional articles provided by the “Syncore” software; and
e. Licensee shall not make any improvements to the Intellectual Property without the prior written consent of Facilisgroup, which has the sole right to file for patent and copyright protection anywhere in the world as an improvement may require in relation to the “Syncore” software, the “Signature Collection” website and the Intellectual Property (other than the Facilisgroup (U.S.) Trademark); Licensee may not file or prosecute one or more trademark applications in connection with Licensee’s use or intended use of the Facilisgroup Trademark(s) or any mark or designation of any kind that is confusingly similar to or dilutive of the Facilisgroup Trademark(s); Licensee agrees to notify Facilisgroup of any unauthorized use of the Intellectual Property by third parties promptly as such use comes to Licensee’s attention and Licensee agrees to cooperate in the prosecution of such infringement, and Facilisgroup retains the right of first refusal to bring infringement or unfair competition proceedings involving the Intellectual Property.
5. This Agreement shall begin on the Effective Date hereof and shall continue until terminated as hereinafter provided.
6. Management Fees are due and payable within fifteen (15) days of invoicing. Licensee must assert any payment dispute in writing to Facilisgroup within fifteen (15) days after the due date of the invoice giving rise to the dispute; otherwise, the invoice will be deemed correct and final. The preferred method of payment of the Management Fees is in the form of ACH authorizations; provided, however, Facilisgroup will also
accept payments by check. Facilisgroup reserves the right, upon request, to accept payments by credit card, in its sole discretion; provided, however, payments made by credit card shall be subject to a surcharge equal to the fees charged Facilisgroup by the credit card company. Late payments shall be subject to a late payment charge of 1.5% per month of the delinquent amount until paid. Such late fees shall be added to and be payable with the next monthly invoice. Licensee is responsible for any applicable sales, use, excise, value added, intangible or other similar taxes, levies or assessments imposed in respect of any fees or other amounts payable by Licensee hereunder.
7. During and after the term of this Agreement, Licensee will NOT:
a. sell, assign, rent, lease, sub-license, distribute, export, import, act as an intermediary or provider, or otherwise grant to third parties any rights which Licensee has pursuant to this Agreement;
b. make accessible to others any of the Intellectual Property;
c. permit anyone other than current employees of the Licensee or authorized independent contractors hired by the Licensee.
i. to access the “Syncore” software;
ii. to access, view, store or retrieve data stored by Facilisgroup; or
iii. to access the Facilisgroup portal;
d. undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the “Signature Collection” website or the “Syncore” software, or any part thereof without the consent of Facilisgroup;
e. disclose, make available to others, permit access to, transmit or transfer any Confidential Information, except as permitted herein;
f. copy or reproduce any material, file, software, document, data, or Confidential Information, except as permitted herein;
g. infringe, or assist anyone else in infringing the Intellectual Property;
h. take any action, or assist anyone else in challenging, jeopardizing, limiting or interfering with the Intellectual Property;
i. remove, obscure, make illegible or alter any notices or indications of the Intellectual Property and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any
j. use the Facilisgroup Trademarks in any manner which, directly or indirectly, would materially and adversely affect the image of the Facilisgroup Trademarks, or Facilisgroup;
k. attack or question the validity of, or assist any individual or entity in attacking or questioning, the title or any rights of or claims by any or all of Facilisgroup in and to the Facilisgroup Trademarks, or any other trademark, or other Intellectual Property of Facilisgroup;
I. directly or indirectly seek for itself or assist any third party to use or acquire any rights, proprietary or otherwise, in the Intellectual Property of or associated or connected with Facilisgroup;
8. Licensee agrees:
a. to take all reasonable steps at all times to protect and keep strictly confidential and to take all necessary precautions against unauthorized disclosure of the Confidential Information;
b. to divulge the Confidential Information only to its employees or agents who require access to it for the purposes of this Agreement or as otherwise provided for in this Agreement;
c. to indemnify Facilisgroup for all losses incurred by Facilisgroup as a result of a failure of Licensee to comply with its obligations under this Agreement;
d. to maintain in full force and effect at its cost general commercial liability insurance with such coverage amounts as are typically maintained by Licensee and which names Facilisgroup as an additional insured;
e. to acknowledge and to agree that a breach by it of this provision would cause serious and irreparable harm to Facilisgroup which could not adequately be compensated for in damages and as such, in the event of a breach by Licensee of this provision, Licensee hereby consents to an injunction being issued against it restraining it from any further breach of this provision, but such action shall not be construed so as to be in derogation of any other remedy which Facilisgroup may have in the event of such breach; and
f. to set up appropriate internal policies and procedures for the safe and secure use of the Intellectual Property and to notify Facilisgroup promptly if Licensee becomes aware or reasonably suspects that its computer and/or operating software systems have been breached or compromised.
9. Licensee acknowledges and agrees:
a. that the Intellectual Property is and shall remain the exclusive property of Facilisgroup and that the Facilisgroup Trademarks is and shall remain the exclusive property of Facilisgroup;
b. that Facilisgroup is the owner of the Intellectual Property and the Facilisgroup Trademarks;
c. that nothing in this Agreement transfers the Intellectual Property to Licensee;
d. that its use of the Intellectual Property, “Signature Collection” website, “Syncore” software, and Facilisgroup Trademarks shall not create in its favor any right, title, or interest to the Intellectual Property and the marks;
e. that any use of the Intellectual Property outside of the scope of the license granted herein is an immediate violation of the rights of Facilisgroup;
f. that Facilisgroup has the sole and exclusive right to control any administrative or litigation proceeding involving the Intellectual Property; and,
g. that during the term of this Agreement and for a period of two (2) years thereafter, Licensee and its owners and principals shall not in any capacity, either directly or indirectly, as an owner, consultant, employee or otherwise engage in the manufacture, marketing, or sale of any product or service which is in competition with or substantially similar to the Intellectual Property or any parts thereof or any programs associated therewith.
h. that during the term of this Agreement and for a period of twelve (12) months after its termination, Licensee agrees that it shall not, directly or indirectly for its own account or benefit or for the account or benefit of any other person or entity, solicit, entice, hire, employ, or endeavor to employ any employee or independent contractor of Facilisgroup for any purpose.
i. Licensee may use other software that may be considered competitive as long as they are not in breach of Section 9.g. of this Agreement.
10. Facilisgroup does NOT guarantee that Licensee will always be able to access the “Signature Collection” website or the “Syncore” software or any data without disruptions, delays or communication-related flaws. Facilisgroup will not be liable for any damages, costs or losses incurred by Licensee as a result of any such disruptions, delays or other omissions in any communication experienced and damages or business interruptions therefrom when using the “Signature Collection” website, or the “Syncore” software, or when accessing any data supplied or stored by Facilisgroup.
REPRESENTATIONS AND WARRANTIES:
11. Each of the parties to this Agreement confirms the accuracy of the statements in each paragraph under the heading “Recitals” at the beginning of this Agreement.
12. Licensee represents and warrants that it is authorized to enter into this Agreement and to comply with its terms. Furthermore, Licensee represents and warrants that it will at any and all times comply with its obligations hereunder, as well as comply with any and all applicable laws and regulations.
13. Licensee acknowledges that the “Signature Collection” website and the “Syncore” software are provided on an “As Is” basis, with no warranties whatsoever. FACILISGROUP DOES NOT EITHER EXPRESSED, IMPLIED OR STATUTORY MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE “SIGNATURE COLLECTION” WEBSITE OR THE “SYNCORE” SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. Further, Facilisgroup does not represent or warrant that the “Signature Collection” website or the “Syncore” software will always be available, accessible, uninterrupted, timely, secure, accurate, complete and error-free or will operate without packet loss, nor does Facilisgroup warrant any connection to or transmission from the Internet.
a. Facilisgroup further represents that it has no actual knowledge that the Intellectual Property infringes any valid rights of any third party. Facilisgroup further represents that the “Syncore” software does not infringe any patents or copyrights of another.
b. When and if Licensee is sued for infringement of the patent, copyright, and trademark rights of another, Facilisgroup retains the right to decide whether to defend Licensee and the right to decide whether to join the lawsuit as a co-defendant.
14. Licensee agrees to indemnify, defend and hold Facilisgroup harmless from and against any and all liability and costs, including reasonable attorney’s fees, court costs, and other disbursements and out-of-pocket expenses incurred, in connection with or arising out of Licensee’s:
a. violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein;
b. violation of any rights of any third party;
c. claims of third parties against Facilisgroup based on Licensee’s breach of any representations contained herein or as a result of any of Licensee’s actions or inactions.
d. Licensee’s performance of its duties and obligations under this Agreement is in its capacity as an independent contractor. Accordingly, nothing contained in this Agreement shall be construed as establishing an employer/employee, a partnership, agency, brokerage, or joint venture relationship between Licensee and Facilisgroup.
LIMITATION OF LIABILITY:
15. In no event shall Facilisgroup be liable, whether in contract, warranty, tort, negligence, product liability or any other form of liability, for any indirect, incidental, special or consequential damages (including without limitation any loss of data, interruption, computer failure or pecuniary loss) arising out of the use or inability to use the “Signature Collection” website or the “Syncore” software, even if Facilisgroup has been advised of the possibility of such damages. Licensee’s only right or remedy with respect to any problems or dissatisfaction with the “Signature Collection” website or the “Syncore” software is to cease use of the “Signature Collection” website or the “Syncore” software.
16. This Agreement is effective as of the Effective Date and will remain effective until terminated by either Facilisgroup or Licensee as set forth below.
17. At any time after the Effective Date of this Agreement, on four (4) months prior written notice, either party to this Agreement may terminate this Agreement for any reason. During this four-month period of time after the giving of such notice of termination, the parties shall continue to fulfill all of their obligations as set out in this Agreement. Licensee shall remain liable for unpaid license fees at the time of notice of termination and those license fees that continue to accrue between the notice of termination and the effective date of the termination.
18. Upon termination of this Agreement for any reason by either party, Licensee shall no longer have access to the “Signature Collection” website, the “Syncore” software, nor any other Intellectual Property. Provided all amounts due Facilisgroup from Licensee have been fully paid, upon termination, Facilisgroup will provide to Licensee, the then current data of Licensee which Licensee was storing on Facilisgroup Canada’s Internet-accessible computer upon which “Syncore” software was installed. The data will be delivered in the most useful format available, as determined by Facilisgroup.
19. Facilisgroup may utilize and disclose Licensee’s data stored on the Internet-accessible computer upon which “Syncore” software was installed for the following purposes:
a. to measure Licensee’s activities, sales and performance;
b. to troubleshoot or debug the “Syncore” software;
c. to determine the fees payable to Facilisgroup hereunder;
d. to negotiate better competitive pricing of promotional articles; and
e. to analyze and consult with others, sales results and performances to further develop, improve and enhance the “Syncore” software.
20. Without limiting any other remedies available to it, in the event that Licensee breaches or is deemed to have breached any provision of this Agreement or fails to make any payment to Facilisgroup when due, Facilisgroup may, at its option, take any or all of the following steps:
a. immediately limit, suspend, or terminate Licensee’s use of the “Signature Collection” website and the “Syncore” software;
b. immediately delete Licensee’s User Account and/or User ID;
c. immediately terminate all licenses and permissions granted to Licensee herein; and/or
d. immediately terminate this Agreement.
In the event of a monetary default hereunder by Licensee, Licensee shall have seven (7) days after receipt of written notice from Facilisgroup to cure any such default; and in the event of a non-monetary default of this Agreement by Licensee, Licensee shall have thirty (30) days after receipt of written notice from Facilisgroup to cure any such default.
21. In the event that:
a. Licensee becomes insolvent, Licensee shall immediately inform Facilisgroup of the insolvency;
b. Licensee makes a general assignment for the benefit of creditors, Licensee shall duly inform Facilisgroup of the assignment;
c. a petition in bankruptcy is filed by Licensee or such a petition is filed against Licensee;
d. Licensee becomes bankrupt or insolvent;
e. a receiver or other custodian or trustee of Licensee’s assets or property, or any part thereof is appointed by a Court of competent jurisdiction; and/or,
f. Licensee is dissolved, wound up, acquired, or merged; or,
g. subject to Section 30, if there is any change(s) in the ownership of Licensee that results in a change of more than 50% of the current ownership interests in Licensee, then Licensee shall be deemed to be in immediate breach of this Agreement and Facilisgroup shall have available to it such remedies as are set out herein and those remedies available to it in law and in equity.
22. Upon termination of this Agreement, Licensee shall:
a. cease all use of the “Signature Collection” website and the “Syncore” software;
b. cease accessing the “Signature Collection” website and the “Syncore” software;
c. cease all use of the Intellectual Property and documentation related thereto;
d. return all materials and documentation to Facilisgroup which incorporate or utilize the Intellectual Property;
e. cease displaying on the Internet or otherwise any images, text, links, indices, prices, catalogues or other materials provided by Facilisgroup; and,
f. cease all use of the Facilis and Facilisgroup Trademarks.
23. Notwithstanding anything herein to the contrary, upon termination of this Agreement, Sections numbered 7, 8, 9, 14, 15, 18, 20, 22, 27, 30, and 31 of this Agreement survive the termination of this Agreement.
24. Licensee agrees to comply with the laws and rules of Canada to the extent they may prohibit or restrict the exportation of any of the Intellectual Property furnished to Licensee either directly or indirectly by Facilisgroup.
25. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of Facilisgroup and the heirs, executors, administrators, estate trustees, successors and permitted assigns of Licensee.
ASSIGNMENT OF RIGHTS AND OBLIGATIONS HEREUNDER:
26. Facilisgroup shall have the right, without Licensee’s consent, to transfer or assign its interest in this Agreement to any person, persons, partnership, association, corporation, or other entity and Licensee agrees promptly to execute any documents in connection therewith. If Facilisgroup’s assignee assumes all of the obligations of Facilisgroup hereunder and sends Licensee written notice of the assignment so attesting, Licensee agrees promptly to execute a general release of Facilisgroup, and any affiliates of Facilisgroup, from claims or liabilities of Facilisgroup under this Agreement.
27. In the absence of Facilisgroup’s prior written consent, Licensee shall not sell, assign, transfer, convey, donate, pledge, mortgage, or otherwise directly or indirectly encumber this Agreement or any portion thereof and any purported assignment or transfer, by operation of law or otherwise, shall be null and void and shall constitute a breach of this Agreement.
28. This Agreement and the performance of the parties hereunder shall be construed in accordance with and governed by the laws of the Province of Ontario, and the laws of Canada, applicable therein.
29. The parties hereby irrevocably and exclusively attorn to the jurisdiction of the Courts located in Ontario, Canada for the commencement of any actions related to this Agreement. Should a dispute arise between the parties concerning this Agreement and should a lawsuit be filed concerning such dispute then the prevailing party in such suit shall be entitled to recover, in addition to its damages and costs, reasonably attorneys’ fees and litigation costs.
MERGER OR ACQUISITION OF LICENSEES:
30. In the event two or more Licensees combine their operations through an equity acquisition, merger, amalgamation, consolidation or acquisition of substantially all of the assets of one of the Licensees by the other, Facilisgroup will take the necessary steps to provide transition and post-transaction support for such business combination. In recognition of the costs and expenses that will be incurred by Facilisgroup as a result of the combination, the following shall apply:
a. the acquiring Licensee shall pay Facilisgroup a one-time fee of USD $10,000.00 for post-acquisition support;
b. the acquired Licensee shall pay Facilisgroup an amount equal to four (4) times the then current monthly Management Fee;
c. the Management Fees for the combined Licensees from and after the acquisition shall be adjusted based on the rolling twelve (12) month average of the combined Annual Sales Volume in accordance with the License Agreement; and
d. all access by the acquired Licensee to the “Signature Collection” website, the “Syncore” software and/or other Intellectual Property shall cease four (4) months after the date of the acquisition; provided, however, in the event additional access time is requested, Facilisgroup will allow continued access for a fee of US Two Thousand Dollars (USD $2,000.00) per month.
31. The terms and conditions of this Agreement constitute the entire agreement between the parties and may be altered, modified or amended only by an express declaration in writing signed by a duly authorized officer or representative of each party and referring specifically to this Agreement;
a. If any provision hereof is held invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision, and such invalid provision shall be deemed to be severed from this Agreement and the other provisions of this Agreement shall remain in full force and effect; and,
b. No waiver by Facilisgroup of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement. Any termination of this Agreement shall not be construed as a waiver by Facilisgroup of any rights to damage or other legal remedies or equitable relief arising by reason of any breach or termination of this Agreement.
32. This Agreement does not in any way create a relationship of employer/employee or principal/agent between the parties and neither party shall act or attempt to act or represent itself as an agent directly or by implication on behalf of the other or attempt to assume or create any obligation on behalf of or in the name of the other. It is expressly understood that Licensee shall have no authority to bind or commit Facilisgroup to obligations not imposed by this Agreement.
33. All notices required or permitted to be given by one party to another party under the terms of this Agreement may be delivered personally or sent by prepaid certified or registered mail, return receipt requested, or transmitted by telex, facsimile machine, electronic mail in PDF format, or other form of recorded telecommunication transmission to the addresses set forth on the License Agreement or at such other address as the parties may from time to time deliver pursuant to this Agreement. Any notice delivered or transmitted by telex, facsimile machine, electronic mail, or other form of recorded telecommunication shall be deemed to be given and received on the date of its delivery or transmission, as the case may be, provided that such day is not a Saturday, Sunday or statutory holiday. If a notice is delivered upon a day that is a Saturday, Sunday, or statutory holiday, then the notice shall be presumed delivered on the next day that is not a Saturday, Sunday, or statutory holiday. Any notice mailed shall be deemed to have been given and received on the third business day following the date of its mailing.
34. Neither Party shall be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; acts of government; or acts of terrorism or war. A Party seeking relief from performance under this Section 34 must (i) provide notice of such circumstances to the other Party as soon as practicable, (ii) use commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, either Party may, in its discretion, terminate this Agreement. Such termination will not result in any liability by either Party, except that, if Licensee terminates the Agreement for Facilisgroup’s failure, Facilisgroup shall refund Licensee a pro rata amount of any prepaid fees applicable to the unused portion of the Monthly Management Fee measured from the last date on which Licensee was able to access the “Signature Collection” website and/or the “Syncore” software.
35. Facilisgroup may modify these Terms and Conditions from time to time, in its discretion, by providing prior written notice to the Licensee of such modifications at least sixty (60) days prior to the effective date of the modifications. However, Facilisgroup shall not be required to provide prior notice if modifications are necessary to comply with applicable law, but shall use commercially reasonable efforts to provide notice when practicable.
36. Licensee, in accordance with Facilisgroup policy, may earn certain rebates from preferred suppliers based on their purchase volumes. Such rebates are paid out only to Licensees who are in good standing twice annually in accordance with Facilisgroup policy. Such rebates are generally paid via check from Facilisgroup, but certain suppliers may distribute their rebates via credit memo that will be passed on to Licensee. Upon termination of this Agreement, any unpaid supplier rebates on the date when such termination (i) is initiated by the Licensee or (ii) is initiated by Facilisgroup as a result of Licensee being in breach of this Agreement, shall be forfeited and become the property of Facilisgroup.