StreetPerfect License, Subscription and Service Agreement
BETWEEN:
Postmedia Network Inc. (herein "Postmedia")
and
"Licensee"
Whereas Postmedia owns the right and title to the StreetPerfect software, manuals and all accompanying materials, referred to collectively and interchangeably herein as "StreetPerfect" or the "Product".
And Whereas the Licensee and POSTMEDIA have agreed to enter into this Agreement (this “Licence Agreement” or “Agreement”) for Licensee to obtain a license to use the Product for its internal business purposes;
Now therefore, in consideration of the representations, warranties, covenants and agreements hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. LICENCE, SUBSCRIPTION AND SERVICE FEES
The Licence, Subscription and Service Fees (the "Fees") payable hereunder as well as name of the Product are specified in Schedule "A" attached hereto. Fees shall be paid in accordance with the terms of Schedule "A" to:
Postmedia Network Inc.
365 BLOOR ST E
TORONTO ON M4W 3L4
If any sales, use, goods and services, property, value added or other taxes are payable, based upon the rights granted herein or on Licensee's use of the Product , they shall be billed to and paid by Licensee.
2. SUBSCRIPTIONS
Product requires the use of periodically updated data “Data” from Canada Post Corporation. Updated copies of the Data are referred to as “Data Updates”. Unless stated otherwise, Data means both the original Data delivered to Licensee and any Data Updates. In order to receive Data Updates from POSTMEDIA, Licensee must pay the Fees in order to obtain an annual prepaid subscription, upon the terms set forth herein and in Schedule "A". The Data is and shall remain the sole property of Canada Post Corporation.
3. UPDATES
New versions of the Product may be developed from time to time. The new versions are referred to as “Product Updates”. Unless stated otherwise, Product means both the original Product received by Licensee and any Product Updates.
Product Updates may only be used upon destruction of all previous versions of the Product. Licensee may not transfer the Licence to use a Product Upgrade to another person or entity nor to continue to use prior versions, including the original Product, once a Product Upgrade has been provided to Licensee.
Data Updates are provided on a periodic basis. Subject to the terms of this Licence Agreement, Data Updates will be sent to Licensee during the Term of this Agreement. Licensee may not transfer the Licence to use the Data Updates to another person or entity nor to continue to use prior versions, including the original version of the Data, once the Data Update has been provided to Licensee.
Licensee acknowledges and agrees that POSTMEDIA may from time-to-time, upon commercially reasonable notice to Licensee, update, modify or change the files, format or information contained in the Product, or the Data and that Product Updates may not operate with prior versions of the Data. Licensee’s continued use of the Product following any Product Upgrade or Data Update shall be deemed acceptance of the same.
4. RESERVATION OF RIGHTS
Licensee has purchased a non-exclusive, non-transferable, non-sublicensable, royalty-free, limited licence to use Product and Data (including, for clarity, any Product Updates and Data Updates) in accordance with the terms and conditions set forth herein (the “License”). Licensee has not purchased any right, title or interest in the Product (including the product manual (“Manual”), or the Data. POSTMEDIA retains all right, title and interest in the Product. Licensee does not become the owner of the Product, or the Data. All rights not specifically granted to Licensee with this License are expressly reserved by POSTMEDIA and Canada Post Corporation, as applicable.
5. LICENCE/PERMITTED USES
Licensee may:
a) Use the Product and Data solely in a manner consistent with the Licence provided herein and as set forth in Schedule “A”. If Licensee desires to use the Product in any other manner a further licence and/or written consent of POSTMEDIA, must be obtained;
b) Unless otherwise agreed between Licensee and POSTMEDIA, make one copy each of the Product and Data for the sole purpose of maintaining an archive or backup copy of the Product and Data. However, Licensee must reproduce any copyright or other notice marked on the Product and Data on any copies made.
c) Use the Product with the PoCAD Data for the following and no other purposes:
(I) validating and correcting mailing addresses, and
(II) addressing mail for delivery by Canada Post and producing corresponding Statements of Accuracy only for the purposes of providing the same to Canada Post in relation to such addressed mail when it is deposited with Canada Post for delivery .
6. NON PERMITTED USES
Licensee is not permitted to:
a) Make copies of the Product or Data, except in accordance with this Licence Agreement;
b) Make any copies of the Manual or accompanying materials, with the exception of this Licence Agreement;
c) Rent, lease, sub-licence, time-share or transfer the Product or the Data to any third party or contrary to any other restrictions set forth herein, without POSTMEDIA’s prior written consent, which it may withhold in its sole discretion;
d) Alter, decompile, disassemble or reverse engineer the Product or the Data;
e) Make any attempt to unlock or bypass the Product licence key provided to use the Product;
f) Use the Product or Data directly or indirectly in connection with an application service provider or in any manner where Licensee is entitled or may be entitled to receive any fee based upon usage of a service; or
g) Remove or obscure any copyright or trademark notices.
7. SERVICE
The services ("Services") as specified in Schedule "B" shall be provided to the Licensee upon the terms specified herein and Schedule "B". No Services shall be provided that are not expressly set forth in Schedule "B". Services which, in POSTMEDIA’s opinion, are beyond POSTMEDIA’s responsibilities, may, upon mutual agreement, be provided at POSTMEDIA’s rates and terms and conditions then in effect.
8. LIMITED WARRANTY AND LIMITATIONS OF LIABILITY
POSTMEDIA makes no representation or warranty that the Product, the Data or the accompanying materials are "error free" or that they meet Licensee's particular standards, requirements or needs.
Product and Data are provided on an "as is" basis, without any other warranties or conditions, express or implied, including, but not limited to, warranties of merchantable quality, merchantability or fitness for a particular purpose, or those arising by law, statute, usage of trade or course of dealing, whether or not POSTMEDIA has been advised of the purpose for which Product is intended to be used. The entire risk as to the results and performance of the Product is assumed by Licensee. To the extent permitted by law, Licensee agrees that neither POSTMEDIA nor its licensors (expressly including Canada Post Corporation) have any liability to Licensee or any other person or entity for any direct, indirect, incidental, special or consequential or other damages whatsoever, including, but not limited to, loss of revenue or profit, lost or damaged data or other commercial or economic loss, even if POSTMEDIA has been advised of the possibility of such damages or they are foreseeable, or for claims by a third party.
POSTMEDIA has provided the Data from Canada Post Corporation. However, Licensee agrees that neither POSTMEDIA nor Canada Post Corporation will be subject to any liability for errors, omissions, completeness, currency, accuracy or timeliness of or in the Data, Licensee’s reliance thereon, or errors resulting from human intervention of any party or machine failure. Licensee assumes sole responsibility for use of Product and any reliance thereon; and Licensee will indemnify and hold POSTMEDIA harmless from any liability or claim in any way attributable to Product or Data or its use or misuse by Licensee, its employees, agents, contractors or customers.
Licensee agrees that POSTMEDIA shall not be liable for any failure to deliver Product Updates or Data Updates or perform hereunder if due to events beyond its reasonable control or due to the actions of third parties.
Licensee agrees that the maximum aggregate liability of POSTMEDIA, in any circumstance whatsoever, shall not exceed the amount paid by Licensee for the License in the twelve month period preceding any claim. Licensee also agrees that no claim or action whatsoever arising out of this License Agreement may be brought more than two (2) years after any cause of action accrues.
The Limited Warranty and Limitations of Liability set out above shall continue in force even after termination of this License Agreement.
9. LICENSE TERMINATION
The initial term of this License Agreement (the “Initial Term”) shall commence on the date of final signature below (the “Effective Date”) and shall continue for a period of one (1) year, unless earlier terminated by either party in accordance with this Section 9. The Initial Term shall automatically renew for successive one (1) year terms (each a “Renewal Term”) unless either party gives notice of its intent not to renew the Agreement at least sixty (60) days prior to the expiry of the Initial Term or then-current Renewal Term. The Initial Term and any Renewal Term(s) are hereinafter referred to as the “Term”.
The Licence shall continue unless terminated or withdrawn as provided in this Licence Agreement. POSTMEDIA may terminate any Licence granted hereunder if Licensee violates, neglects or fails to perform or observe any of its obligations herein and such breach of the Agreement is not cured within thirty (30) days of notification thereof by POSTMEDIA to Licensee. Any termination, whether by POSTMEDIA or Licensee, shall apply to all versions of Product licensed for use hereunder. Before any termination by Licensee becomes effective, and in the event of any termination, Licensee shall, as soon as is commercially reasonable, but in no event later than sixty (60) days from termination:
a) return to POSTMEDIA any licence certificate or key furnished by POSTMEDIA;
b) return to POSTMEDIA all original Product distribution materials including media and Manuals;
c) destroy all copies of all versions of Product in Licensee's possession;
d) remove all portions of all versions of Product from any adaptations made by Licensee and destroy such portions; and
e) certify in writing that all copies, including all those included in Licensee's adaptations, have been destroyed.
10. WITHDRAWAL OF LICENCE
POSTMEDIA may withdraw any Licences granted herein:
a) immediately, if the Product or the Data become the subject of a claim that it infringes the rights of a third party or results in POSTMEDIA not having the right to permit others to use the Product or the Data;
b) immediately, if the Product or the Data become illegal, or unavailable to POSTMEDIA; or
c) upon commercially reasonable notice if POSTMEDIA, for whatever reason, discontinues the Product.
If POSTMEDIA withdraws any License, then its only obligations will be to refund, on a pro rata basis, any Fees paid in advance by Licensee. When all Licenses provided for in this License Agreement have been withdrawn then this License Agreement shall be terminated and the provisions of section 9 above shall apply.
11. RIGHT TO AUDIT
At least once in every twelve month period of the Term of License and once within twelve months of the termination of this Agreement, POSTMEDIA may, during regular business hours and upon reasonable notice to Licensee, appoint an auditor or accountant to audit the books, records, documents and files of Licensee insofar as they relate to this Agreement and any payments required to be made hereunder provided that they shall not make a copy of the same or disclose any confidential information of Licensee to POSTMEDIA. POSTMEDIA shall also have the right to audit the appropriate records of Licensee to verify the number of copies of Product in use, the number of computer systems or computers on which such copies are installed. Should any shortfall in any payment be discovered as a result of such audit, Licensee shall pay such shortfall to POSTMEDIA and if the shortfall is 3% or more of the amount paid during the Term hereof, then Licensee shall also pay the reasonable costs of such audit.
12. INDEMNITY BY POSTMEDIA
POSTMEDIA will indemnify and hold Licensee harmless from and against any and all damages due to any claim by a third party that Product infringes any third party’s intellectual property rights provided that i) the claim does not arise from any modifications made to the Product (it being reiterated that no modifications are permitted hereunder) by Licensee; ii) Licensee notifies POSTMEDIA of any claim or potential claim as soon as practicable following receipt of notice of any claim or potential claim and POSTMEDIA is permitted to take over carriage of such claim or potential claim.
13. INDEMNITY BY LICENSEE
Licensee will indemnify and hold POSTMEDIA harmless from and against any and all damages due to any claims arising out of Licensee’s breach of this Licence Agreement or arising out of any actions or omissions of Licensee; provided that POSTMEDIA notifies Licensee of any claim or potential claim as soon as practicable following receipt of notice of any claim or potential claim and Licensee is permitted to take over carriage of such claim or potential claim.
14. GENERAL PROVISIONS
Licensee agrees to comply with all export and re-export restrictions and regulations imposed by the Governments of Canada, if applicable. Licensee agrees to maintain Product and all embedded programs in confidence and shall use a reasonable degree of care to protect the confidentiality of the Product and all embedded programs.
This Agreement is the entire agreement between Licensee and POSTMEDIA, and supersedes any other agreement or discussions, oral or written, with respect to the subject matter hereof and may not be changed except by a written agreement signed by duly authorized officers of POSTMEDIA and Licensee. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from the Agreement and the remaining provisions shall remain in full force and effect. This Agreement shall be governed by the laws of the province of Ontario and the courts of Ontario shall have exclusive jurisdiction to deal with any dispute or litigation between the parties, without regard to any principles of international law. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement, or to exercise any right under this Agreement, shall not be construed as a waiver or relinquishment of such party’s right to enforce any such provision or right in any other instance. There is no joint venture, partnership, agency or fiduciary relation between the parties and the parties do not intend to create any such relationship. POSTMEDIA may enter into similar agreements with any other party. The terms of this Agreement shall govern notwithstanding any terms of any other document issued by Licensee. This Agreement may not be assigned by either party without the written consent of other party, such consent not to be unreasonably withheld or delayed. All notices, requests, demands and other communications under this Agreement shall be in writing and delivered in person or sent by overnight courier, postage prepaid, or by facsimile or email transmission. All notices and other communications required or permitted under this Agreement shall be effective: (i) on the second business day after deposit, if delivered by overnight courier, charges prepaid; (ii) if sent before 5:00pm ET, on the day of transmission, if sent via facsimile (with a confirmation copy sent by regular mail) or email; (iii) if sent after 5:00pm ET, on the next day after transmission, if sent via facsimile or email (unless the next day is a non-business day, in which case it will be deemed to have been delivered on the next business day); or (v) as of the day of receipt if hand delivered. Any party may from time to time change its address for the purpose of notices to that party by a similar notice specifying a new address, but no such change shall be deemed to have been given until it is actually received by the party sought to be charged with its contents. All provisions that, by their nature, ought to survive the termination of this Agreement shall be considered to survive any termination. The parties both agree that this Agreement be drawn up solely in English. Les parties confirment leur volonté avec le présent contrat seulement en anglais. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and together constitute the same instrument. Facsimile or PDF signatures shall have the same legal effect as original signatures.
Schedule A
PRODUCTS AND SERVICES
StreetPerfect for Canadian Address Accuracy for WINDOWS - Batch ONLY
The software may ONLY be used to perform batch processing using the provided batch driver program, on a single server with a single copy of the Canada Post database on a local drive. No access to Application Programming Interface (API) is granted or permitted.
StreetPerfect for Canadian Address Accuracy for WINDOWS
StreetPerfect software may be installed on a single server with a single copy of the Canada Post database on a local drive. Client software may be installed on the same server when used as a single user workstation. Alternatively, client software may be installed on the licensed client systems in a networked environment up to the licensed number of clients. Licensed clients may access the server using either distributed StreetPerfect client-server components or WEB-based applications.
Schedule B
1. Licensee shall be entitled to receive on a periodic basis, updated Canada Post Corporation data files.
2. Right to use Product Upgrades. POSTMEDIA may create, from time to time, an updated version of Product. All subscribers who are covered by a current maintenance agreement shall be entitled to receive Product Upgrades at no charge.
3. Telephone assistance will be provided from Monday to Friday, 9:00 AM to 5:00 PM, Eastern Standard Time, (except locally observed holidays), to identify, verify and resolve problems with Product. Telephone number will be provided. Licensee may designate one technical support
contact who will be authorized to phone POSTMEDIA to request technical support.
