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True Business Solutions Inc, End User License Agreement |
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DO NOT USE THIS SOFTWARE UNTIL YOU HAVE CAREFULLY READ
THIS END USERS LICENSE AGREEMENT (the “License”) AND THE TERMS AND CONDITIONS OF THIS LICENSE. By logging
into TrueContact and using this software, you enter
into the terms of this binding contract between you and True Business Solutions
Inc. True Business Solutions herein know as “TBSI” Definitions and Interpretations "License Title, copyright, intellectual property rights and
distribution rights of the software remain exclusively with the Vendor.
Intellectual property rights include the look and feel of the Software. This
Agreement constitutes a license for the use only and is not in any way a
transfer of the ownership rights to the Software The rights and obligations of this Agreement are personal
rights and granted to the Licensee only. The Licensee may not transfer or
assign any of the rights or obligations granted under this Agreement to any
other person or legal entity. The Licensee may not make available the Software
for use by one or more third parties. The Software may not be modified, reverse-engineered, or
de-compiled in any manner through current or future available Agreements. “TrueContact” means the subscription service known
as TRUE CONTACT including the Web Hosting Services, provided to Client by TBSI
under this Agreement, comprising PC and internet based software applications,
on-line services, financial services information and links to services provided
by Third Party Providers as updated and varied from time to time by TBSI
including Additional Services where provided by TBSI, either directly or with
permission of Third Party Providers; “Password” refers to
the “TRUECONTACT” applications username and password allocated to the Client
and as applicable to Authorized Users in accordance TBSI prescribed procedures; “PIPEDA” means the
Personal Information Protection and Electronic Documents Act; “Services” means TRUECONTACT,
the Web Hosting Services, the Support Services and the Additional Services; “Support Services”
means the services set out in the section called “Support”
“Tariff”
means TBSI’s standard schedule of charges as amended
from time to time with notice; “Third Party Provider”
means a company that provides information or data to TBSI to be hosted on TBSI
servers, including, but not limited to mortgage providers, service providers
and credit referencing providers. “Third Party Software”
means the software or services owned by third parties which
is supplied within or outside TBSI; “Unacceptable Content”
means any material of any nature which is unlawful, defamatory, indecent,
obscene or of a menacing character or of a harassing nature, or causing
distress or inconvenience, financial or otherwise, to any person, or which contains
any criticism of any of TBSI’s Group or which if
published would constitute a contempt of court, promotes violence or illegal
activities or promotes discrimination based on race, sex, religion, national
origin, physical disability or age; or contains any viruses, worms, Trojan
horses or other contaminants or disabling devices that may modify, delete,
disable or damage any data, files, software or systems; License Fees and
Charges The original purchase price paid by the Licensee will
constitute the entire license fee and is the full consideration for this
Agreement. Term and
Termination This agreement shall commence on the Commencement
Date and shall thereafter continue for an initial period of one year
from the Commencement Date and shall continue thereafter until
or unless terminated by either party on one months notice in writing to the
other expiring no earlier than one year from the Commencement Date. For clarity
this Agreement shall not become effective upon the date a Password is issued by
TBSI if that date is earlier than the Commencement Date. TBSI may terminate this
Agreement on giving the Client written notice if TBSI reasonably believes that
Client or any of Client’s Authorized Users are not using TRUECONTACT in
accordance with the terms of this Agreement or if any Laws or Regulations
require such termination. Use of TrueContact Client may not use TRUE CONTACT: - to transmit, access or download Unacceptable Content; or - in breach of any Intellectual Property Rights; or - for commercial time sharing, rental or service bureau use, advertising or spammings TRUECONTACT is to be used only by Client and any of Client’s
Authorized Users. Client agrees to promptly inform TBSI of any change of
address or telephone number supplied on registration or any other details TBSI
may reasonably require from Client. TBSI will allocate a Password to each individual Authorized
User. Client agrees not to disclose an
Authorized User’s Password to anyone other than the relevant Authorized User
and to procure that the Authorized User does not disclose his Password to any
other person. If it becomes known, Client will inform TBSI’s
helpdesk immediately. TBSI’s helpdesk may require,
and the Client shall promptly cause, Authorized Users to change their passwords
where it considers necessary. Client will ensure each Authorized User uses MorWEB strictly
in accordance with these terms and conditions and any instructions issued by
MSC from time to time. Client may not use TRUE CONTACT to transmit,
access or download services or content which make unreasonable use of Internet
bandwidth. Client shall only permit access to TRUECONTACT by
Authorized Users and shall maintain confidentiality of all login names,
passwords and other confidential information (if any) relating to access to
TRUE CONTACT. Client shall prevent
the
downloading or
reproduction of material from TRUE CONTACT for redistribution or use by a third
party who is not Authorized so to do pursuant to this Agreement. The Client shall be responsible for ensuring that only those
of its employees who have a need to know become Authorized Users. If any
Authorized User is no longer required by the Client to use of TRUE CONTACT, or if any
Authorized Users ceases to be employed by the Client then the Client will inform TBSI of same and shall
remove such Authorized Users authorization to use the Service through TRUE
CONTACT in accordance with procedures notified by TBSI. If Client wishes to add on one or more
additional Authorized Users, Client will need to notify TBSI to amend TBSI’s records accordingly, and these terms and conditions
will apply to any such new Authorized Users. Client agrees to defend and indemnify and to hold TBSI fully
indemnified from and against all losses, costs, actions, claims, expenses or
liabilities whatsoever suffered or incurred directly by TBSI or any company in TBSI’s Group in consequence of Client’s or Client’s Authorized
Users breach or non-observance of this Agreement including in respect of any
claim brought by a third party. Client will use its best endeavours
to ensure that all mortgage applications to providers who are Third Party
Providers shall be processed through TRUE CONTACT The Client acknowledges that it is responsible for
installing and maintaining the third party software and equipment required to enable the Client and any Authorized Users to use the
Services. TBSI’s recommends the specification set out. TrueContact Availability TBSI may (at TBSI’s
discretion) refuse to accept the registration of any Authorized User, including
without limitation if Client or the Authorized User is in breach of this
Agreement or has a credit referencing search result showing a warning. TBSI may (at TBSI’s discretion)
suspend Client’s or any Authorized Users right of access to TRUECONTACT,
including without limitation if Client (either itself or by Client’s Authorized
User) are in breach of this Agreement. In the event of any problems with access to TRUECONTACT, Client through Client’s nominated representative shall refer to TBSI’s helpdesk
which will provide the Support Services through the
contact point notified by TBSI. Client will ensure that such enquiries are restricted to critical problems with TRUE
CONTACT. TBSI may make changes to TRUE CONTACT from time to time at TBSI’s discretion.
For the avoidance of doubt, any such changes may include removing functionality, adding new functions as well as
corrections and modifications. For the avoidance of doubt, some new functions may be
Additional Services. Client acknowledges that the Internet, World Wide Web, FTP,
Usenet, E-mail and services provided via any of the aforementioned are inherently
uncontrollable by TBSI and that TBSI shall not be responsible or liable for any
errors, omissions, delays, inability to use any Services or if any Unacceptable
Content is introduced by such Services. These terms and conditions shall apply to any subsequent
copies of TRUE CONTACT licensed to Client. Intellectual
Property Rights Client acknowledges that any and all domain
names and other Intellectual Property Rights subsisting in or used in
connection with TRUE
CONTACT (including all of TBSI’s software or other
applications used by TBSI to provide TRUE CONTACT or any of the Services and
any changes made to such software during the course of this Agreement) are and shall remain the property of TBSI
and/or the relevant Third Party
Providers, and that the Client shall have no rights in the Intellectual
Property Rights except as expressly set out therein, and that the Client shall not during or after expiry or termination of
this Agreement in any way question or dispute
the ownership thereof by TBSI or such Third Party Provider. Client shall not during or after the expiry or termination
of this Agreement, without the prior written consent of TBSI, use or adopt any
domain name, trade mark, trade name, trading style or commercial designation
that includes or is similar to or may be mistaken for the whole or any part of
any domain name trade mark, trade name, trading style or commercial designation
used by TBSI. Client shall not reformat, adapt, vary or modify TRUE CONTACT or
otherwise do or permit any Authorized
User or other third party to do any
such act so as to affect TBSI’s Intellectual Property Rights in or to TRUE CONTACT. Client shall defend and
indemnify TBSI fully against all loss, or damage suffered as a result of a
breach by Client or Client’s Authorized Users. Support TBSI
shall use its reasonable endeavours to provide the
Support Services throughout each Business Day. Confidentiality Each party (including any and all Authorized
Users) (the "Restricted Party") shall, and shall ensure that every
other member of its Group shall, keep confidential and shall not use for its
own purposes, nor disclose, any information of a confidential nature about the
other party or its business (including customer information, trade secrets and
information of commercial value) which becomes known to the Restricted Party in
the course of this Agreement unless such information is already in the public
domain otherwise than by reason of a breach by the Restricted Party of its
obligations under this Clause. Disclosure
is, however, permitted to the extent that the disclosure is: - required by law; - requested by the Restricted Party’s
professional advisers or a regulatory body to whose jurisdiction or rules the
Restricted Party or another member of the Restricted Party’s group is subject; - to the Restricted Party’s employees,
agents or professional advisers where it is reasonably necessary or desirable
to enable the Restricted Party to comply with this Agreement and before the
disclosure takes place the Restricted Party makes such employees, agents or professional
advisers aware of its obligations of confidentiality under this Agreement and
at all times procures compliance by such employees and agents therewith; or - made with the prior written consent of the
other party. Compliance
Client acknowledges that advice,
recommendations and actions resulting from the use of TRUE CONTACT or any Data
by Client and Authorized Users are the responsibility of Client. TBSI are not
making or giving any representations guarantees or warranties except as set out
below. Client further acknowledges
Client and Client’s Authorized Users, and not TBSI, are responsible for
compliance with all Laws or Regulations concerning Client’s business or the
business of any Authorized Users irrespective of the use of or access to TRUE
CONTACT. Compliance with
PIPEDA Each party in the performance of its obligations and the
exercise of its rights hereunder shall comply with and shall ensure that its
employees, agents, consultants and contractors comply with: (a) PIPEDA as if it
were a federal work, undertaking, or business within the meaning of PIPEDA; and
(b) any and all applicable federal and provincial privacy, information security
and confidentiality legislation and regulatory requirements. The Client represents and warrants that the transfer of any
personal information to TBSI and the use or disclosure of personal information
by TBSI in accordance with this Agreement and any instructions of the Client
does not violate PIPEDA. The Client agrees to defend and indemnify TBSI against any
losses, claims, damages and expenses (including costs) which TBSI may incur as
a result of any breach save to the extent caused by the failure of TBSI to
comply with its obligations under this Agreement . Warranty TBSI
does not warrant that TRUE CONTACT will be continuously available 24x7x365 but TBSI
will use its reasonable endeavours to keep downtime
to a minimum. TBSI warrants that it owns or has all necessary rights, licences and permissions to grant the licence and to
provide the Services in accordance with this Agreement. The Client warrants
that it owns or has all necessary rights, licences
and permissions (including regulatory licences or
authorizations) to enter into this Agreement and to
offer and provide mortgage broking services. Any Third Party Software supplied to Client and/or any
services provided by any Third Party Provider accessed through TRUE CONTACT are
subject to the terms and conditions of the relevant Third Party. TBSI shall
have no responsibility or liability for such software or services. TRUE CONTACT content, software and services, including
information, names, images, pictures, logos and icons regarding or relating to
TBSI, TBSI’s Group and/or certain third parties, are
provided ‘As Is’ and on an ‘As Available’ basis without any representations of
any kind or warranty made (whether express or implied by law), including
implied warranties of satisfactory quality, fitness for a particular purpose,
merchantability, non infringement, compatibility, security and accuracy. Where there are any Third Party Software or services or
hypertext links to other websites, extranets, portals the same does not
constitute an endorsement of the same and Client and Client’s Authorized Users
use the same at Client’s own risk and TBSI and TBSI’s
Group accepts and bears no responsibility for the same. Furthermore, TBSI have not attempted to
verify the truth, accuracy or completeness of any Data, illustrations,
commissions or information provided to TBSI by the Client, any Authorized User
or any Third Party Providers and TBSI accept no responsibility or liability for
the truth, accuracy or completeness of the same. Client should check, as good practice, with a
Third Party Provider before Client or Client’s Authorized User applies for a particular
product. Each party’s undertakings set out in this Agreement shall be
the full extent of its obligations to the other party concerning its
performance or non-performance under this Agreement. Accordingly, except as aforesaid, all
warranties, conditions or representations, expressed, implied, statutory or
otherwise and whether arising under this Agreement or under any prior agreement
or in oral or written statements made by or on behalf of either party or its
representatives are hereby excluded, insofar as the same are capable of
exclusion by law. Liability and
Indemnity Nothing in this Agreement shall be deemed or construed so as
to limit, restrict or exclude the liability of either TBSI or Client for death
or personal injury caused by the negligence of that party or for any loss,
damage or other liability arising out of either party’s fraudulent or criminal
acts, statements or omissions. TBSI shall not be liable for any loss, damages, costs,
claims, or expenses whatsoever arising from willful or negligent act or
omission of any person not being an employee, subcontractor or agent of TBSI.
This clause shall not impose any liability upon TBSI. Subject to and to the extent permitted by law, TBSI shall
not be liable in contract or tort or otherwise for: - any purely
economic loss; - loss of profit; - turnover; - sales; - revenue; - indirect loss; - special losses;
or - consequential
losses whatsoever incurred by Client or
any third party.. In the event that TBSI incur any liability
arising from the Clients use of TRUECONTACT or any services provided by TBSI pursuant
to this Agreement whatsoever from a third party with respect to such losses,
Client agrees fully and effectually to defend and indemnify TBSI for all such
costs, claims, damages and expense. Subject to the extent permitted by law, the entire liability
of TBSI to Client and all Authorized Users arising out of or in connection with
this Agreement howsoever occurring (including, for the avoidance of doubt, any
liability with respect to any indemnities given in this Agreement by TBSI, and
any liabilities arising from any claims by or on behalf of Client for breach of
tort (including but not limited to claims for misrepresentation and
negligence), Client shall defend and indemnify TBSI against all costs claims,
demands, expenses, liabilities or losses or damage suffered (including damage
or loss suffered from any Unacceptable Content) of whatever nature arising out
of or in connection with the misuse or loss by Client or its employees, agents,
Authorized Users and subcontractors of the Passwords, or abuse or misuse of
TRUE CONTACT. TBSI are not liable in contract, tort (including liability
for negligence) or otherwise for the acts or omissions of providers of
telecommunications services or for faults in or failure of their apparatus. Force Majeure Neither party shall be liable to the
other in respect of anything which apart from this provision, may constitute
breach of this Agreement arising by reason of
force majeure,
namely circumstances beyond the control of either party which shall include(but
shall not be limited to) acts of God, perils of the sea or air, fire, flood,
drought, explosion, sabotage, accident, embargo, riot, civil commotion or civil authority,
including acts of local government and parliamentary authority. In the event that any of these terms, conditions or provisions shall be
determined by any competent authority to be invalid, unlawful, or unenforceable
to any extent, such term, condition or provision shall to that extent be
severed from the remaining terms, conditions and provisions which shall
continue to be valid to the fullest extent permitted by law. The parties agree to attempt to substitute for any invalid
or unenforceable provision a valid and enforceable provision which achieves to
the greatest extent Third Party Rights
This Agreement does not create any rights enforceable by a person not a party
to it except that a person who is the permitted successor to or assignee of the
rights of a party is deemed to be a party to this Agreement. Support TBSI shall use its reasonable endeavours
to:
·
provide
and maintain a Help Desk accessed via toll-free lines;
·
ensure
availability of TBSI 8 hours per day, 5
days a week;
·
ensure
that 90% of all calls made to the Help Desk during any Business Day are
answered live;
·
ensure
any unanswered calls received during any Business Day are returned within 30
minutes of a message being left;
·
respond
to non-critical MSC system related problems received during any Business Day
within two hours. “Non-critical” is
defined as the Client being able to submit or receive data electronically;
·
develop
a formalized beginner and advanced training program for the Client and provide
online training where necessary;
·
provide
a dedicated account executive responsible for actively managing the Client’s
account;
·
release
any fixes within one month of the discovery of the relevant MSC system
problem(s);
·
provide
data hosting for the Client on financial-institution level servers with
industry accepted levels of security and back-up; System
Requirements On
a PC: Microsoft
2000, XP Professional; Microsoft
Internet Explorer version 6.0 or higher; High-speed
Internet access; It is
recommended that your screen resolution be set to 1024 x 768 pixels. Minimum resolution 800 x 600 pixels. |
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