ESILAW 360 Terms and Conditions and End User License Agreement
Capitalized terms are defined below in section 24.
These terms and conditions and end-user licence agreement apply to Customer’s subscription to and use of the Services. The Subscription and these terms and conditions and end-user licence agreement form the legal agreement (“Agreement”) between Dye & Durham and Customer regarding the Services.
The Agreement sets out Customer’s limited rights regarding the Services and is a binding contract between Customer and Dye & Durham. Use of the Service shall be deemed to be the Customer’s acceptance and agreement to be bound by the Agreement.
Customer represents and warrants that the individual accessing to and using the Services is an authorized representative of Customer and has the authority to legally bind Customer to the Agreement.
LICENCE TO SERVICES
Subject to Customer’s payment of applicable fees and subject to the Agreement’s terms and conditions, Dye & Durham grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right and licence during the Term for the number of Users set out in Section 3 to install, access and use the Services solely for Customer’s internal business operations, provided that Customer unconditionally agrees to install, access and use the Services in accordance with the Agreement.
Customer may make a copy of the Services Software and Documentation for back-up purposes. Customer will make no other copies of the Services Software or Documentation except as authorized in this Agreement. Title to the Services remains vested in Dye & Durham, and nothing in this Agreement gives or conveys any right, title or interest in the Services to Customer except as granted under this Agreement.
Customer will create and activate a number of User Licenses. Each User Licence may be used to create one account (username and password) and one lawyer/timekeeper record for a single User (the lawyer/timekeeper record allows the User to record time and fee and to produce reports by lawyer or timekeeper). Subject to Section 4 below, the Customer may request that additional User Licenses be created and activated by requesting same from Dye & Durham.
Customer is responsible and wholly liable for all acts or omissions committed under any User’s username and password. For the purposes of this Agreement, the access to and use of the Services by a User will be deemed to be access and use by Customer, and a breach by any User of this agreement will be deemed to be Customer’s breach.
Customer hereby agrees to pay the fee payable for the number of User Licenses subscribed for, which fee has been communicated to you and is available upon request from Dye & Durham, plus all applicable taxes and other charges imposed by governmental authorities in respect of those fees (the “Fees”). In the event that the Customer increases the number of User Licenses subscribed for, a new Fee shall be payable and the foregoing sentence shall apply mutatis mutandis. The Fees shall not include fees associated with new features and modules which may be introduced during the Term, and which fees will be in addition to the Fees.
All Fees are non-refundable except as expressly provided in this Agreement.
Dye & Durham may adjust the Fees at the end of a Subscription Period, which adjusted Fees shall apply to the subsequent Subscription Period and Customer will be charged and will pay the adjusted Fees following such adjustment.
Fees shall be invoiced in the manner that has been communicated to you, which manner may be confirmed upon request from Dye & Durham. All invoices are due and payable when issued. Interest shall be charged at a rate of 18% per annum on any outstanding balance not received within thirty (30) calendar days of an invoice date. Any such interest shall accrue on the outstanding balance of the account from the date such invoice was issued until the date the payment (including all accrued interest) is paid in full.
All fees are payable by the payment options made available by Dye & Durham, including any automatic payment mechanism that Dye & Durham may designate. Customer hereby authorizes Dye & Durham to use such automatic payment mechanism and to charge or withdraw from Customer’s applicable payment source for amounts payable. Customer must comply with the terms of all agreements between Customer and any third-party payment processors, and if Customer has any disputes regarding the processing of any payment then Customer must deal directly with those third parties to resolve the disputes.
If for any reason Dye & Durham is unable to obtain automatic payment using the designated payment source, Customer will immediately pay Dye & Durham the amount due and provide Dye & Durham with an alternative payment method for future payments. Customer represents and warrants to Dye & Durham that each payment method Customer uses either belongs to Customer or Customer otherwise has the right to charge all such payments on or through those payment methods.
SUSPENSION AND ACCELERATION
If any amount owing by Customer under this Agreement is overdue, or if Customer’s or any User’s access to or use of the Services or Customer Data breaches this Agreement or violates the rights of any third party or is considered unlawful (as determined by Dye & Durham in its sole discretion) then Dye & Durham may, without limiting its other rights and remedies:
In addition to Customer’s other obligations under this Agreement, Customer will:
Dye & Durham expressly reserves all rights not expressly granted to Customer under this Agreement. The Services may only be installed, accessed and used by Customer and its Users, and only for Customer’s internal business operations.
Customer will not, and will not permit its personnel or Users to:
The Services which are to be installed must be installed and used only on a Supported Environment. Customer and its Users will, at their sole expense, be solely responsible for supplying, configuring and maintaining the hardware, devices, software and licences, telecommunication and internet equipment, connections and services necessary for providing a Supported Environment. Dye & Durham will not be responsible for, nor obligated to provide Support Services for, interruptions, errors, deficiencies or other problems with the Services arising from Customer’s failure to provide a Supported Environment.
Dye & Durham has no responsibility for the working of Customer’s or any User’s computer or telecommunications equipment, devices, software and networks, or internet access. Customer acknowledges and agrees that the operation and availability of equipment and systems used for accessing and interacting with the Services, including public telecommunication networks, computer networks and the internet (whether supplied by Dye & Durham, Customer or a third party) can be unpredictable and may from time to time interfere with or prevent access to or use of the Services. Dye & Durham is not in any way responsible for any such interference with or prevention of access to or use of the Services.
Customer acknowledges and agrees that although the Services Software is installed on Customer’s computer system, internet access is required to license and activate all forms of the Services and to receive Updates.
Customer acknowledges and agrees that, as with all systems that permit file upload or transmission over the internet, the Services carries the risk that Customer or a User may send, receive, upload, download or transmit a file that contains Harmful Components, and that Harmful Components may damage Customer’s or its Users’ computers, systems and electronic files, and may spread and damage other persons’ computers, systems and electronic files. Provided Dye & Durham satisfies its obligations under this Agreement, Dye & Durham is not responsible if Customer’s communications or Customer Data contain Harmful Components, and is not responsible if Customer’s communications or Customer Data are lost, delayed, altered, intercepted, accessed, copied or stored without authorization during the transmission of any data whatsoever across networks outside of Dye & Durham’s control, provided that Dye & Durham promptly notifies Customer of any such instances of which it becomes aware.
Dye & Durham will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under the Agreement that is caused by events outside Dye & Durham’s reasonable control. Dye & Durham’s performance will be deemed to be suspended for the period that any such event continues, and Dye & Durham will have an extension of time for performance for the duration of that period.
Dye & Durham will provide the following Support Services during the Subscription Term:
Dye & Durham may at any time and from time to time audit and review any aspect of Customer’s or its Users’ access to and use of the Services to ensure compliance with this Agreement, and Customer will cooperate with providing assistance reasonably required to facilitate that audit. If Dye & Durham discovers any discrepancies that are not corrected within such period that Dye & Durham deems appropriate and notifies the Customer of in writing, Dye & Durham may immediately on written notice to Customer terminate this Agreement. If Dye & Durham discovers any material breach of this agreement through an audit, Customer will bear the costs of the audit; otherwise, Dye & Durham will bear the cost of the audit.
Dye & Durham takes reasonable steps in accordance with generally accepted industry standards to ensure that the Services is free of Harmful Components. Nevertheless, Customer and its Users are responsible for installing and maintaining appropriate anti-virus and other protective software on the devices and systems on which the Services is installed or from which Customer or its Users access and use the Services. Customer acknowledges and agrees that, as with all systems that permit file upload or transmission over the internet, the Services carries the risk that Customer or a User may send, receive, upload, download or transmit a file that contains Harmful Components, and that Harmful Components may damage Customer’s or its Users’ computers, systems and electronic files, and may spread and damage other persons’ computers, systems and electronic files.
As between the parties, Dye & Durham owns all right, title and interest (including all intellectual property rights) in and to all aspects of the Services, including the software code and architecture, the graphical design and “look and feel” of the user interface, and code libraries (including classes and functions), and the Services is protected by copyright and other proprietary rights, all of which Dye & Durham owns or has the right to use. Subject to the limited rights expressly granted to Customer under this Agreement, Dye & Durham reserves all rights, title and interest in and to the Services. Customer does not acquire ownership rights to the Services by installing, accessing or using the Services.
Dye & Durham owns its name, logo, the ESILaw trademark and all of its other trademarks and trade names appearing on or in association with the Services. Unless otherwise indicated, all other names, logos, trademarks appearing on the Services are owned by third parties and are used under licence.
Customer agrees to indemnify and hold Dye & Durham and its affiliates and their respective directors, officers, employees, agents, suppliers or subcontractors harmless from all losses, damages and expenses incurred in connection with any claims, demands and other liabilities asserted against any of them arising from or related to: (a) Customer’s use of the Services; (b) Dye & Durham’s possession or use of Client Materials; or (c) any fraud, negligence or wilful misconduct of Customer or any breach by Customer of this Agreement.
DISCLAIMER AND LIMITATION OF LIABILITY
IN NO EVENT WILL DYE & DURHAM, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONSULTANTS OR REPRESENTATIVES BE LIABLE TO CUSTOMER OR ANY USER FOR (a) ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES OF ANY NATURE, FOR ANY REASON WHATSOEVER INCLUDING A BREACH OF THIS AGREEMENT OR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES, WHETHER THAT LIABILITY IS ASSERTED ON THE BASIS OF INDEMNITY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF DYE & DURHAM HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES; OR (b) LOST PROFITS, BUSINESS, REVENUE, OPPORTUNITIES OR CUSTOMERS; BUSINESS INTERRUPTIONS; LOSS OF OR DAMAGE TO DATA; COST OF REPLACEMENT PRODUCTS OR SERVICES; LOSS OF OR DAMAGE TO REPUTATION OR GOODWILL.
IN NO EVENT WILL DYE & DURHAM’S AND ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE TOTAL FEES RECEIVED BY DYE & DURHAM UNDER THIS AGREEMENT DURING THE CALENDAR YEAR IN WHICH CUSTOMER MAKES ITS FIRST CLAIM FOR DAMAGES.
TERM, TERMINATION AND SUSPENSION
Any dispute, controversy or claim between the parties arising out of, or in respect of, or in connection with, this agreement shall be submitted to arbitration under the Arbitration Act, 1991 (Ontario), subject to the following:
The Customer has the option during the initial Subscription Period to migrate to ESILaw 360 for a one-time payment equal that portion of the Fee payable for the remaining portion of the then Subscription Period or $10,000, whichever is higher, plus all applicable taxes and other charges imposed by governmental authorities in respect of those fees, provided that the Customer enters into an end-user licence agreement with respect to its subscription to ESILaw 360.
“Customer Data” means any data, content, documents, information or material that Customer or any of its Users processes, stores or transmits using the Services, including any Personal Information contained in Customer Data.
“Customer” means the person or entity using the Services in accordance with this Agreement with Dye & Durham.
“Documentation” means the user manuals regarding the Services Software provided or made available by Dye & Durham, whether in electronic or physical formats.
“Dye & Durham” means Dye & Durham Corporation, and its subsidiaries, as applicable and as the context requires.
“Error” means a reproducible defect in the Services, when accessed and used from equipment meeting the System Requirements, that causes the Services not to perform substantially in accordance with the Documentation.
“Harmful Components” means any virus, Trojan horse, worm, time bombs, back doors or any similar device, mechanism, code or routine that manifests harmful, contaminating, destructive or disabling properties.
“Personal Information” means any data regarding an identifiable individual.
“Services Software” means the object code version of Dye & Durham’s applications offered in accordance with this Agreement, including Updates provided by Dye & Durham from time to time.
“Services” means the services accessible to Customer in the ESILaw application subscribed for hereby.
“Subscription” means the Subscription that Customer accepts when subscribing to the Services.
“Subscription Period” means (a) initially, the five year period commencing on the commencement of this Agreement, and (b) thereafter, for each subsequent Subscription Period, the one year period commencing on the day immediately following the last day of the then Subscription Period.
“Support Services” means Dye & Durham’s software maintenance and technical support services described in Section 12.
“Supported Environment” means the hardware, devices, operating system platform, software and licences, telecommunication and internet equipment, connections and services that meet or exceed the minimum system requirements for the Services as set out by Dye & Durham from time to time.
“Updates” means any patches, fixes, upgrades, enhancements, modifications or new versions of or to the Services provided by Dye & Durham from time to time.
“User Licence” means the authorization for a single User to establish and use a Services account.
“User” means an individual who is a partner, member, employee or contractor of Customer and who is authorized by Customer to access and use the Services through a User Licence under Customer’s Subscription.