Last Updated: December 1st, 2018
Where a term used in these Terms starts with the capital letters, it has a defined meaning, set out in clause 1.
a) “Authorised User” means an individual authorized by You to use the Services, Software, and documentation. User(s) may only include Your employees, consultants, and contractors, unless You are a Channel Partner, in which case the User(s) may include Your employees, consultants, contractors, agents, and Clients.
b) “Channel Partner” means an entity that has entered into a reseller, managed service provider or similar relationship with Unryo pursuant to which such entity is authorized by Unryo either to sublicense the Service to its own customers or to use the Service as a component of its own service offerings to its customers.
c) “Client(s)” means, if You are a Channel Partner, Your customer(s).
d) “Order Form” means an ordering document specifying the Services and corresponding Fees, that is entered into between You and Unryo, which references this Agreement and is incorporated herein by reference.
e) “Services” means the online monitoring platform provided by Unryo to Customer under this Agreement, and Software installed on Customer's servers or equipment.
f) “Software” means any downloadable software provided by Unryo solely for the purpose of accessing the Services, owned and provided by Unryo to You pursuant to this Agreement.
g) “Your Data” means data, files, or information accessed, used, communicated, stored, or submitted by You or Your Users related to Your or Your User’s use of the Services or Software.
2. USE OF THE SERVICE.
Unryo hereby grants You a non-exclusive, non-transferable license to access, use, and install (if applicable) the Services, Software, and documentation during the Term (defined below). The Service is intended solely for Customer and Authorized Users, for Customer’s internal business purposes, and provided to you “as is”, and is subject to modification from time to time and at Unryo’s sole discretion.
3. FREE TRIALS.
4. RESTRICTION ON USE.
Customer will not allow access to or use of the Services by anyone other than Authorized Users. Customer and its Authorized Users will not and will not permit: (a) the copying, modification or distribution of any portion of the Services or Software; (b) the renting, leasing, or providing access to the Services on a time-share or service bureau basis; (c) the transferring of any of Customer or Authorized Users’ rights hereunder; (iv) reverse engineering, disassembly, or decompilation of the Software, or otherwise attempting to derive the source code of the Software; or (v) repackaging, redistribution or sale of the Software as an OEM product.
5. PROPRIETARY RIGHTS.
a) Service Ownership. Unryo shall own all right, title, and interest in and to Service, including all modifications, improvements, enhancements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. Customer agrees to assign all right, title, and interest it may have in the foregoing to Unryo.
b) Data Ownership. Unryo shall own all right, title, and interest in and to any statistical, non-identifiable data that is collected by Unryo from Customer in connection with Customer’s use of the Service.
6. SUPPORT SERVICES.
Subject to this Agreement, Unryo will provide in-product and email support. Although no response times are guaranteed, Unryo will use commercially reasonable efforts to respond to such support requests within 48 hours. In the event any Support is not performed with reasonable skill, care and diligence, Unryo will re-perform the Support to the extent necessary to correct the defective performance, and Customer acknowledges that re-performance shall be Customer’s sole and exclusive remedy for any defective performance. Notwithstanding the foregoing, if Customer has purchased the Services through a Channel Partner, such Channel Partner shall be responsible for Tier 1 support and any other support terms set forth in Customer’s subscription with such Channel Partner.
7. DATA PRIVACY AND SECURITY.
You acknowledge and agree that Unryo may collect certain data and information as a result of your access or use of the Service. We take commercially reasonable administrative, technical, organizational, and physical measures designed to protect the confidentiality, security and integrity of Your Data and secure it from accidental loss, unauthorized access, use, alteration and disclosure. Please be aware, however, that no method of transmitting information over the Internet or storing information is completely secure. Accordingly, we cannot guarantee the absolute security of any data.
You agree that Unryo can access Your account’s information in order to respond to Your service requests. We will not disclose such data except if compelled by law or permitted by You. All of Your Data will be deleted immediately upon termination.
8. SOFTWARE; THIRD-PARTY CONTENT.
Customer may be prompted to download Software when using certain features of the Services and subject to Customer’s compliance with the terms and conditions of this Agreement, Unryo grants you a non-exclusive, non-transferable and non-sublicensable license for the Term set forth in the Order Form, to download and use the Software, for the sole purposes of accessing and using the applicable feature of the Services and for no other purpose.
Customer acknowledges and agrees that:
a) Software may only be used on systems owned, leased or primarily operated by Customer,
c) Software may include third-party content that is subject to open source license terms that may expand or limit Customers’ rights to use such content.
Customer agrees to review any electronic documentation that accompanies the Software or is identified in a link provided to Customer to determine which portions of the Software are open source and are licensed under open source license terms. To the extent any such license terms require that Unryo provide Customer the rights to copy, modify, distribute or otherwise use any open source software in the Software that are inconsistent with the limited rights granted to Customer in this Agreement, then such rights in the applicable open source license terms shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such open source software. Further, Customer acknowledges and agrees that all third-party content is governed by its respective terms and such terms are solely between Customer and the applicable licensor. Customer agrees to comply with such third-party terms (including open source license terms), as applicable, and Unryo has no liability with respect to third-party content under this Agreement.
a) Fees. In each case the Order Form will set out the fees and charges ("Fees") for the Software and Services to be supplied in accordance with that Order Form. The Fees will be due on the dates (or on the occurrence of the events) specified in that Order Form.
b) Taxes. All fees are exclusive of applicable sales, excise, use or similar taxes, which shall be the sole responsibility of Customer. Customer shall pay all such taxes either directly or to Unryo, as required by applicable law or regulation.
a) Pursuant to these Terms, each party (“Receiving Party”) may, from time to time, learn, receive, hold, or have access to (in written, oral or electronic form) Confidential Information from the other party (“Disclosing Party”). “Confidential Information” means any information, technical data, or know-how, whether or not a statutory “trade secret” of the Disclosing Party, including, but not limited to, that which relates to research, product plans, intellectual property, products, services, customers, employees, documents, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances of the Disclosing Party. The foregoing notwithstanding, Confidential Information shall not include any information which: (i) is already known by means not subject to a confidentiality obligation of the Receiving Party at the time disclosed by the Disclosing Party; (ii) is or becomes available through public sources apart from any unauthorized disclosure by the Receiving Party; or (iii) is obtained by the Receiving Party from a third party who has the right to disclose the same.
b) During the term of this Agreement and at all times thereafter, the Receiving Party shall protect any Confidential Information received from the Disclosing Party: (i) by limiting use and disclosure of the same to its employees, and/or authorized agents or independent contractors to the extent necessary for them to perform the Receiving Party’s obligations in this Agreement; and (ii) by exercising reasonable care to prevent unauthorized use or disclosure, which shall in no event be less than the same degree of care it uses to protect its own information of like importance from unauthorized use or disclosure.
c. Notwithstanding the foregoing, either party may disclose Confidential Information received hereunder: (i) pursuant to a mandatory discovery request, disclosure requirement, subpoena, court order or other order of a court, tribunal or government agency received by a party, in each case, only after the party receiving same has given prompt written notice thereof to the Disclosing Party; or (ii) to the Receiving Party’s own legal counsel or independent accountant who have a need to know such Confidential Information. In each of (i) and (ii) of this paragraph, the Receiving Party shall (a) consult with the Disclosing Party prior to the disclosure of any Confidential Information, and (b) cooperate in good faith with the Disclosing Party, at the Disclosing Party’s expense and in the Disclosing Party’s discretion, with any reasonable effort to resist the production of Confidential Information, including obtaining a protective order or defending a motion to compel the production of Confidential Information.
11. DISCLAIMER OF WARRANTIES.
THE SERVICE, TECHNOLOGY, SUPPORT AND ALL OTHER ITEMS PROVIDED IN CONNECTION THEREWITH ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND UNRYO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT UNRYO DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM UNRYO OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
12. LIMITATION OF LIABILITY.
IN NO EVENT WILL UNRYO, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION AND DATA), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF UNRYO OR CUSTOMER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
THE TOTAL LIABILITY OF UNRYO, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, TWO HUNDRED CAD DOLLARS ($200).
You agree to indemnify and hold Unryo, its affiliates, officers, employees, agents, suppliers or licensors harmless from any and all claims, liability and expenses, including reasonable attorneys’ fees and costs, arising out of your use of the Service or breach of this Agreement (collectively referred to as “Claims”). Unryo reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by Unryo in the defense of any Claims.
Unryo may modify this Agreement from time to time and will post the most up-to-date version on its website. Your continued use of the Services and Software following modification to the Services or Software or updated Agreement constitutes Your consent to be bound by the modified Agreement.
This Agreement will remain in force and effect until all trials and subscriptions hereunder have expired or have been terminated.
This Agreement will commence on the date on which Customer accepts this Agreement and, unless terminated earlier by either party in accordance with the terms of this Agreement, will continue for the term specified in the applicable Order Form (“Initial Term”).
Subscriptions will automatically renew for the additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term, or, in the case of monthly subscriptions, at any time before the end of the subscription term. The subscription pricing during any automatic renewal term will be the same as that during the immediately prior term unless we have given you written notice of a pricing increase at least sixty (60) days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
If You cancel prior to the end of the Service period, all amounts due and payable through the Subscription term shall immediately become due and payable. There is no pro-rata credit or refund for that Subscription Term.
Unryo may, without prior notice, immediately terminate, limit your access to or suspend your account and use of the Service if you fail to comply with any term of this Agreement. Unryo expressly reserves the right to suspend your account and use of the Service in the event you fail to pay the fees in full and on time.
17. EFFECT OF TERMINATION.
Upon termination or cancellation of this Agreement, You must immediately stop using the Service, return or destroy all documentation delete all Software and other access to the Services from Your system, and shall immediately pay outstanding amounts due to us, if any.
Termination of all Services also includes deletion of your password and all related information, files and data associated with or inside your account, including Your Data.
Unryo will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Data. All provisions of these Terms, which by their nature should survive, shall survive termination of Services, including without limitation ownership provisions, warranty disclaimers and limitations of liability.
a) Publicity. Customer grants Unryo a limited and revocable license and right to use its name and logo on customer lists and related advertising materials in any commercially reasonable manner.
b) Independent Contractor. In performing under this Agreement, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.
c) Export. Customer agrees not to export or re-export any software included within the Service, either directly or indirectly, without both parties’ written consent and any required license from the appropriate governmental agency.
d) Severability. In the event that any provision of this Agreement is held to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
e) Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials.
f) Notice. We may provide any notice to you under this Agreement by: (i) posting a notice on the Unryo website; or (ii) sending a message to the email address(es) then associated with your Account. Notices we provide by posting on the Unryo website will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address(es) current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email. Notices made by you to Unryo should be sent via email at .
g) Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without Unryo’s prior written consent. Unryo may freely assign or transfer this Agreement, in whole or in part, by operation of law or otherwise. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties
h) Entire Agreement. This Agreement, including the Order Form, constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
i) Governing Law and Venue. The laws of Quebec, Canada will apply to any disputes arising out of or relating to these terms or the Service. All claims arising out of or relating to these terms or the Service that are not subject to arbitration will be litigated exclusively in the federal or state courts of Quebec, Canada, and you and Unryo consent to personal jurisdiction in those courts.
19. CONTACT INFORMATION.