EULA BC Estate Planning

SOFTWARE LICENSE AGREEMENT - BC ESTATE PLANNING

This Software License Agreement (this agreement include all exhibits to be known as the "Agreement") is entered into between Do Process LP ("Licensor") and the firm, corporation, partnership, individual or other legal entity by whom or on whose behalf this copy of the Software was licensed (“Customer”).

1.  Definitions. In addition to any definitions in the body of this Agreement, the following definitions shall apply to this Agreement:

a.  "Software" means the computer program commonly known as Estate Planning software.  Software includes the software, its database, its libraries and all accompanying data files and documentation, as well as any corrections, bug fixes, enhancements, updates or other modifications to any of the foregoing that may be provided from time to time, and all copies of any of the foregoing.  

b.     “File” means each individual client record created using the Software.

2.  License

a.    Grant of License.  Pursuant to the terms and conditions of this Agreement, for the term of this Agreement, the Licensor grants the Customer a non-exclusive, non-transferable license to install and use the Software only for Customer's own business at the Customer site indicated in the Customer’s order form (“Customer Site”). 

b.  Restrictions on Use.  Customer shall not:, (i) use the Software in the operation of a service bureau; (ii) sell, cede, assign, license, publish, display, distribute, or otherwise transfer to a third party the Software or any copy thereof, in whole or in part; or (iii) without Licensor’s prior written consent, use the Software on a physical computer (“Workstation”) located outside of Canada.

c.  Copies.  The Customer may, solely to enable it to use the Software, make one archival copy of the Software, provided that said archival copy is not installed on the Customer’s server or any Workstation or in any way used by the Customer and that the copy shall include the Licensor's copyright information and any other proprietary notices, which shall remain the exclusive property of the Licensor.  The Software delivered by Licensor to Customer and the archival copy shall be stored at Customer's Site.  Customer shall have no other right to copy, in whole or in part, the Software. 

d.  Modifications, Reverse Engineering.  The Customer agrees that only the Licensor shall have the right to alter, maintain, enhance or otherwise modify the Software.  Customer shall not disassemble, decompile or reverse engineer the Software.

e.  Fees.  In consideration for the license granted and support to be provided by Licensor under this Agreement, the Customer shall pay the Licensor the initial license fee (if applicable) and Pay Per Use Fees for Files as more particularly set forth on the Licensor’s website at www.doprocess.com.  Any applicable initial license fee is due and payable upon execution of this Agreement.  Where the Customer is paying by monthly invoice, the Pay Per Use fees are due upon receipt of said invoice and in arrears: (i) within thirty (30) days from the receipt of the invoice for same. Where the Customer is paying by way of credit card has been set up, by charge to such credit card on a daily basis. 

f.   Add-On Modules.   The Customer acknowledges that Licensor may, from time to time, develop and offer to the Customer add-on modules for use with the Software.  The Customer hereby expressly acknowledges and agrees that any such add-on modules offered to the Customer are not included in the Software unless and until the Customer purchases from the Licensor additional licenses for such add-on modules.

g.  Pay Per Use - File Restrictions. The Customer will only use each File in relation to the single transaction or entity for which it was originally purchased. The Customer is required to create a new File for each testator, client, will maker, power of attorney maker or other record added using the Software.  Customers that do not abide by this condition are subject to having their license suspended or terminated immediately by the Licensor.

h. Open Source Software. If there is any open source software in the Software, that open source software is licensed under the terms of the license that accompanies such open source software. Nothing in this Agreement limits the Customer’s rights under, or grants Licensee rights that supersede, the license terms for such open source software.

i.  Material Terms and Conditions.  Customer specifically agrees that each of the terms and conditions contained in this section, are material to this Agreement and that any failure of the Customer to comply with these terms and conditions shall constitute a sufficient cause for the Licensor to terminate this Agreement.  The presence of this subsection shall not be considered in determining the materiality of any other provision in this Agreement or a breach of this Agreement by either party.

3.  Links. Some links in the Software may enable you to leave the Software and connect directly to other sites or applications. Such linked sites or applications are independent of the Software and will have other terms and conditions applicable to the use of that site or application that the Customer may be required to agree to in order to take full advantage of certain features of the Software and those sites and applications. The Licensor is not responsible for examining or evaluating, and it does not warrant the offerings of, any of these businesses or individuals or the content of these linked sites. The Licensor does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. The Licensor is providing these links as a convenience and the inclusion of any link does not imply endorsement of the linked site by the Licensor. The Customer should carefully review privacy statements and other conditions of use of these linked sites. The Customer acknowledge and agree that certain of the content available through the Software may be supplied by third parties resident and/or operating outside the Province of British Columbia and/or may be hosted on computers located outside of the Province of British Columbia.

4. Delivery and Installation. Licensor shall deliver or arrange for delivery by its agent to Customer’s email address indicated on the Order Documentation of a link to the Software installation wizard. The Customer is responsible for installing the Software at the Customer Site and advising the Licensor when installation of the Software has been completed. If the Customer desires that Licensor install the Software, Licensor or its agent may provide such installation services.

5. Professional Service Fees.  Should the Customer require any additional services to be provided by the Licensor, such as, but not limited to consulting, custom development, project management, installation, training and other services which are not included or provided for herein, such services may be provided to the Customer by the Licensor or its agents at the regular rates for such services as published by and periodically updated by Licensor, subject to such additional terms and conditions as the Licensor may require.  Fees for such services are billed monthly in arrears.  The Licensor hereby reserves the right to change its rates for the provision of such additional services at any time without notice.
 
6.  Taxes. The Customer shall, in addition to the other amounts payable under this Agreement, pay all sales, use, value added or other taxes, federal, provincial or otherwise, other than taxes on the income or profits of the Licensor. 

7.  Ownership.  The Customer acknowledges and agrees that the Licensor or its suppliers retains all title, ownership and intellectual and proprietary rights, including any patents, copyrights, trade secrets, trademarks and any other proprietary rights, in and to the Software.  All bug reports, ideas for enhancement and other feedback provided by the Customer to the Licensor will be the property of the Licensor, and the Customers hereby assigns these items (including all intellectual property rights therein) to the Licensor for use for any purpose it sees fit.  All rights not expressly granted are reserved to the Licensor.

8.  Confidential Information

a.  Licensor's Confidential Information.  The Customer acknowledges that during the term of the Agreement, the Customer may obtain proprietary or confidential information of Licensor, its affiliates and their suppliers, including without limitation Emergent Technologies, including without limitation the Software, flow charts, logic diagrams, user manuals and/or screens concerning the Software trade secrets and know-how (the "Licensor Information").  During the period this Agreement is in effect and at all times after its termination, the Customer, shall maintain the confidentiality of the Licensor Information and shall not sell, cede, assign, license, publish, display, distribute, disclose or otherwise make available, the Licensor Information to any third party; nor shall the Customer use the Licensor information except as expressly authorized by this Agreement.  Customer shall not disclose any of the Licensor Information, to any person(s) without the prior written consent of the Licensor.  The limitations on disclosure shall cease to apply if the Licensor Information forms part of the public domain (other than through the actions of Customer). A disclosure of such Licensor Information as required by a court of competent jurisdiction shall not be deemed a breach of this Agreement provided that the Customer does not disclose more than required by the court. 

b.  Customer's Confidential Information.  Licensor acknowledges that during the term of this Agreement, the Licensor may obtain information relating to Customer’s past, present or future clients or customers, suppliers and business, which is of a confidential and proprietary nature (the "Customer Information"); provided that Customer Information shall not include any information which forms part of the public domain (other than through the actions of Licensor). Licensor shall not disclose, except to its affiliates and its affiliates’ suppliers, agents, directors, officers, employees and consultants who have a need to know, and shall keep all such Customer Information strictly confidential, unless and until such time as the information no longer qualifies as confidential "Customer Information" in accordance with this section.  Nothing contained herein shall permit the Licensor to disclose the Customer Information for any purpose other than to carry out its rights and obligations under this Agreement.  A disclosure of Customer Information as required by a court of competent jurisdiction shall not be deemed a breach of this Agreement provided that the Licensor does not disclose more than required by the court.

9.  Support. If the Customer has purchased support or is otherwise entitled to support as set out in this Agreement or the Customer’s order documentation, then during the support period:

a. the Licensor will provide the Licensee, during the Licensor’s normal business hours, with a reasonable level of telephone hotline support and of online remote assistance support at no additional cost (excluding any third party connection charges), provided that the Customer has installed up to and including the most recently made available Software updates, such support is limited to troubleshooting and Software operation assistance and does not include Software customization, consulting, data conversion or correction, legal advice or other services, or assistance with problems not attributable to the Software.  If in the course of providing such support the Licensor is required to access, collect, use, disclose, dispose of or otherwise handle information of or about individuals that is subject to privacy laws, the Licensor will only do so: (i) for the purpose of providing Software support; and (ii) in accordance with privacy laws the other terms of this agreement; and

b. if the Licensor, at its sole discretion, releases commercially available updates to the Software (excluding new full version releases of the Software), the updates will be made available to the Customer, in a manner determined by the Licensor, at no additional cost (excluding any third party connection charges) and on the same terms herein (unless such other terms are provided to the Customer with the update).

10.  Disclaimer of Warranties.  THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  DO PROCESS, ON BEHALF OF ITSELF, ITS AFFILIATES AND ITS SUPPLIERS, DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING ANY MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER THE LICENSOR NOR ANY OF ITS AFFILIATES OR SUPPLIERS REPRESENT OR WARRANT: THAT THE SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS; THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED AND ERROR-FREE; OR THE CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY CONTENT OR OTHER INFORMATION PROVIDED THROUGH THE SOFTWARE. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM.

11.  Limitations Period. No action under this Agreement may be brought by or against the Licensor or its suppliers more than one (1) year after the cause of action arises.

12.  Limitation of Liability. Neither the Licensor not any of its affiliate or suppliers shall be liable to the Customer for indirect, special, incidental, exemplary, aggravated, punitive or consequential damages (including, without limitation, economic losses or lost profits) related to this Agreement, the Software or resulting from the Customer’s use of or inability to use the Software, arising from any cause of action whatsoever, including contract, warranty, strict liability, negligence, or other tort, even if Licensor has been notified of the possibility of such damages.  Licensor, its affiliates and its suppliers liability to Customer with respect to this Agreement, the Software and any obligations related thereto will not  exceed $500 in the aggregate.

13.  Privacy.  Use of this Software is subject to the terms of Licensor’s privacy policy accessible at www.doprocess.com/privacy-policy, as amended from time to time, without notice.  The Customer acknowledges and agrees that the Software may collect and send statistical and other information about the occurrence of certain events within the Software and the Customer’s use of the Software, including without limitation the names of Customer’s clients, to the Licensor and the Software developer (“Event Information”) as well as certain personal information.  The Customer acknowledges and agrees, in addition to any other uses set out in the privacy policy, the Licensor may use, and may permit the ultimate owner of the Software to use, Event Information and personal information for the following purposes: to provide Customer with access to the Software; for ensuring proper functioning, operation and support of the Software; billing; accounting; back-up purposes; administrative purposes; to measure and understand the behaviour and preferences of its customers’ to influence feature and functionality development; to troubleshoot technical problems; to enforce this agreement; to meet contractual reporting and audit obligations to suppliers whose products form part of or are otherwise related to the Software; in an aggregated form for research and statistical and market analysis purposes; for disclosure to and use by its affiliated entities, suppliers, partners and subcontractors that carry out certain functions for or provide certain services to Licensor; and for disclosure to any law enforcement authority or regulator, including without limitation a law society, having jurisdiction in connection with any investigation by any of them relating to Customers use of the Software.  The Customer warrants that the Customer will not interfere or attempt to interfere with the collection and transmission of Event information or personal information. In order to operate effectively, the Licensor’s collection, storage and use of information may involve transfers of personal information and Event Information from Canada to another country. The Customer acknowledges that it may be necessary for the Licensor to transfer personal information to someone in another country and the Customer consents to such transfer.

14.  Term and Termination.  This Agreement is effective until terminated.  The Customer may terminate this Agreement at any time by giving the Licensor written notice but this Agreement will terminate immediately if the Customer fails to comply with any term or condition herein. The Licensor may terminate this Agreement immediately if it ceases to have the necessary rights to provide the Software, if required by a supplier or if a supplier threatens to terminate the Licensor’s rights due to Licensee conduct or otherwise.  Sections 2d through i, 3, 6, 7, 8, 10 through 14, 17 and 18, and the obligation to pay fees that were incurred prior to termination will survive termination of this Agreement. Upon termination for any reason other than convenience by Customer, the Customer will deliver to the Licensor all copies of the Software and any provided storage media, and the Customer will discontinue use of the Software and will cause it to be de-installed from all Workstations on which it had been installed, as well as all backup and archival copies.  At Licensor’s request, the Customer will deliver to the Licensor a written certificate signed by an authorized signing officer of the Customer certifying that the Software and all copies thereof have been returned to the Licensor or deleted or destroyed. If this Agreement is terminated for convenience by the Customer, the Customer shall be entitled to retain its copy of the Software on the existing Workstation solely for the purpose of accessing historical Files stored in the Software at no charge.  If the Customer creates new Files in the Software, this Agreement shall be deemed to have been revived and the Customer shall be liable for compliance with all terms and conditions of this Agreement, including without limitation, payment of Pay Per Use Fees.

15.  Assignment. Customer shall not assign or otherwise transfer or assign the Software or this Agreement to any person or other legal entity, including, but not limited to any parent or related corporation, partnership, affiliated entity, joint-venture, or subsidiary, or other legal entity related to the Customer, nor shall this Agreement entitle the Customer, as part of the sale of any portion of its business, or assets, pursuant to any merger, acquisition, consolidation or reorganization, to transfer the Software or the License granted hereunder.

16.  Force Majeure. Except in respect of payments due,. neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any acts of God, any acts of a common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by the other party or such other party's employees, agents or sub-contractors.  The parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a delay in the performance of this Agreement.

17.  Notices. Any notice given in accordance with this Agreement shall be in writing and the effective date of any such notice, if mailed, shall be the fifth (5th) business day following the date of mailing date, if hand delivered, shall be the date of delivery, and if delivered by facsimile transmission, shall be the first (1st) business day following transmission (with confirmation copy mailed). The addresses for notice to the parties are as follows: (a) for Licensor to the attention of the Executive Director at 123 Front Street West, Suite 700, Toronto, Ontario M5J 2M2 or by facsimile to 416-360-8863; and (b) for the Customer to the address identified on the Order Documentation, Any facsimile number or any address for giving notice to any party may be changed from time to time by that party by notice given as hereinbefore provided.

18.  General Provisions

a.  Complete Agreement.  The parties agree that this Agreement is the entire agreement between the parties, and supersedes and merges all prior proposals, understandings and all other agreements, whether oral or written, between the parties in any way relating to the Software and this Agreement.  Additionally, the parties acknowledge that there are no representations or warranties other than those set out in this Agreement. 
   
b.  Amendment.  The Licensor reserves the right, at its sole discretion, from time to time, to modify, add, or delete portions of this Agreement. The Licensor will notify the Customer (either, at the Licensor’s choice, by: (a) using the contact information provided to the Licensor; and/or (b) electronic display during use or update of the Software) of any such revision and the Customer hereby agrees that continued use of the Software after such notice will constitute acceptance and agreement to be bound by the revised agreement.

c.  Waiver.  The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.

d.  Severability.  If any provision of this Agreement is found to be invalid, illegal or unenforceable under any applicable statute or rule of law, such provision shall be deemed severed from this Agreement and the remainder of this Agreement shall be remain valid and enforceable to the maximum extent possible.

e.  Governing Law.  This Agreement, and the performance of the mutual covenants herein contained, shall in all respects be governed by the laws of the Province of Ontario.

f.  Third Party Beneficiaries.  The Customer acknowledges and agrees that 2028505 Ontario Inc. doing business as Emergent Technologies is the owner of the Software and it and its successors or assigns are third party beneficiaries of this Agreement with the right to enforce the provision so of this Agreement and to verify the compliance of the Customer.

g.  Laws. The Customer is responsible for compliance with local laws to the extent they are applicable and the Customer agrees to comply with all applicable laws with respect to its use of Software. The Customer is responsible for ensuring its use of the Software and any materials accessible by way of the programs complies with Canada’s Anti-Spam Law (“CASL”), as it may be amended from time to time, and with any other applicable rules and regulations of the Canadian Radio-television and Telecommunications Commission and any similar or replacement body with authority to administer and enforce CASL.  Licensor will hold the Customer liable and will require the Customer to indemnify Licensor, its affiliates, and any of their respective directors, officers, employees, consultants, agents and suppliers for any damage which they may suffer, sustain, pay or incur as a result of the failure of Customer or by an entity for whom Customer is responsible to comply with any applicable law, including without limitation, CASL.

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