USE OF THE SOFTWARE IS SUBJECT TO THE TERMS OF THIS LEGAL AGREEMENT BETWEEN TRANSOFT
SOLUTIONS INC. of Suite 250 - 13575 Commerce Parkway, Richmond, BC, Canada V6V 2L1
(“Transoft”) AND YOU AS SUBSCRIBER. IN ORDER TO USE THE SOFTWARE, YOU MUST AGREE
MAY AT ANY TIME IMPOSE ADDITIONAL TERMS TO THIS AGREEMENT WHICH WILL BE BINDING
ON THE SUBSCRIBER.
TRANSOFT AND THE SUBSCRIBER agree as follows:
1.1 “Annual Fee” means the fee payable to Transoft for use of the Software
during the Initial Term pursuant to Section 4.1, or during a Renewal Term pursuant
to Section 3.2(a);
1.2 “Commencement Date” means the date that the Subscriber subscribes to
the terms of this Agreement and pays the Annual Fee;
1.3 “Confidential Information” means data, information, documents, knowledge,
designs, products, services, systems, programs, plans, inventions, research, discoveries,
developments, strategies, trade secrets, processes, technical information, production
methods, marketing activities, Subscriber information, or any information concerning
the organization, business, finances, transactions, affairs of the Disclosing Party
which may come to the Recipient’s knowledge pursuant to the terms of this Agreement.
Notwithstanding the generality of the foregoing, Confidential Information does not
include information that:
(a) is already in possession of the Recipient or any of its parent, subsidiary or
affiliated companies and was obtained without an obligation of confidence;
(b) is independently developed by the Recipient or any of its parent, subsidiary
or affiliated companies;
(c) is or becomes publicly available without breach of this Agreement;
(d) is acquired by the Recipient from a third party who provides the information
without breaking any express or implied obligations or duties to the Disclosing
(e) is released for disclosure by the Disclosing Party; or
(f) is disclosed in response to a valid order of a court or other governmental body
of Canada or the United States of America or any political subdivisions thereof;
provided, however, that the Recipient will first have given notice to the Disclosing
Party and made a reasonable effort to obtain a protective order requiring that the
information or documents so disclosed be used only for the purposes for which the
order was issued.
1.4 “Demonstration Period” means the first 10 days of the Initial Term;
1.5 “Disclosing Party” means a party disclosing Confidential Information;
1.6 “Documentation” means any documentation (whether in electronic or printed
or printed form) provided to or available to the Subscriber by Transoft for the
purposes of identifying the terms and conditions of access, use or operation of
the Software, explaining or describing the Software, providing instructions as to
the manner of permitted access or use of the Software, assisting the Subscriber
with problems or corrections to the Software or otherwise intended to assist the
Subscriber in the effective and permitted access, use and operation of the Software,
and includes but is not limited to user guides, manuals, Help Menus and text, FAQ
(frequently asked questions) files, license files, license specifications and details.
1.7 “Initial Term” is the term referred to in Section 3.1;
1.8 “Licensed Products” means the Software and the Documentation;
1.9 “Maximum Amount of Data Storage” means the maximum amount of data that
the Subscriber may store using the Software, as determined from time to time by
Transoft in its discretion. Currently the maximum amount of data storage is 500
projects per login ID;
1.10 “Recipient” means a party receiving Confidential Information;
1.11 “Renewal Term” means any renewal term pursuant to Section 3.2;
1.12 “Software” means the Online Traffic Impact Study Software commonly known
1.13 “Value Added Taxes” means such sum as will be levied upon
the Annual Fee or any other fees payable pursuant to this Agreement by the Federal
or any Provincial or Territorial Government and is computed as a percentage of the
fees and includes Goods and Services Tax, Harmonized Sales Tax and any similar tax,
the payment or collection of which, by the legislation imposing such tax, is an
obligation of Transoft.
2.0 LICENSE AND RESTRICTIONS
2.1 Software and Services. Transoft grants to the Subscriber, subject to
the terms and conditions of this Agreement the non-exclusive, non-transferable and
non-assignable right to use the Licensed Products during the Term for the purpose
of its business. Transoft will host the Software, including providing data support,
backup, and recovery.
2.2 Additional Terms and Restrictions. Transoft reserves the right to at
any time change any of the terms of this Agreement. Without limiting the generality
of the foregoing, Transoft may include additional terms with respect to connection
time, may limit the number of projects or look ups by the Subscriber, and may set
a minimum hardware and browser requirement.
2.3 Ownership. The Licensed Products are owned by Transoft and are protected
by Canadian Copyright law, U.S. Copyright law and international treaty provisions.
It is an express term of this Agreement that the Subscriber will not acquire title
or ownership to the Licensed Products.
2.4 Reservation. Transoft reserves all rights not expressly granted to the
Subscriber under this Agreement. Without limiting the generality of the foregoing,
the Subscriber acknowledges that the Licensed Products contain trade secrets and
agrees that the Subscriber will not do or permit to be done any of the following
in relation to the whole or any part of the Licensed Products:
(a) copy them;
(b) modify, adapt, translate or alter them;
(c) de-compile, reverse engineer or disassemble the Software;
(d) take any steps to produce a source language statement of the Software; or
(e) use the Software to develop any derivative works of functionally compatible
or competitive computer programs to the Software or create derivative works based
on the Software.
2.5 Restrictions. Notwithstanding the generality of this Agreement, the Subscriber
will not, and will not permit others to, transmit, convey, license, sublicense,
distribute, sell, resell, transfer or otherwise dispose of the Licensed Products
to any other persons or organizations.
2.6 Survival. The provisions of this Article 2.0 will survive termination
of this Agreement.
2.7 One Individual User. Without limiting the generality of this Article
2.0, the Subscriber acknowledges and agrees that the account and login ID assigned
to the Subscriber pursuant to the terms of this Agreement may not be used by any
person other than one individual who is the intended user (the “Intended User”).
Without limiting the generality of the foregoing, the Subscriber will:
(a) not at any time authorize any person other than the Intended User to use the
account or login ID of the Intended User; and
(b) keep a secure login password for the Intended User, and will ensure that no
person other than the Intended User has access to the login password.
3.0 TERM AND TERMATION
3.1 Initial Term. The term of this Agreement will commence on the Commencement
Date, and will remain in effect for 12 months following the Commencement Date unless
terminated pursuant to Sections 3.3 or 4.2.
3.2 Renewal Term. No less than 60 days prior to the expiry of the Initial
Term or any Renewal Term, Transoft will give written notice to the Subscriber of:
(a) the Annual Fee applicable during the Renewal Term; and
(b) any other terms for use of the Software during the Renewal Term, which terms
will immediately apply to the use of the Software by the Subscriber.
Unless the Subscriber gives written notice to Transoft no less than 30 days prior
to the expiry of the Initial Term or the Renewal Term as applicable, this Agreement
will automatically be renewed for a further term of 12 months and the terms of this
Agreement, as amended pursuant to this Section 3.2 will apply to the Renewal Term.
3.3 Termination. Transoft will have the right to terminate this Agreement:
(a) Immediately upon written notice; or
(b) Immediately upon written notice at any time if:
(i) the Subscriber is in material breach of any warranty, term, condition or covenant
of the Subscriber pursuant to this Agreement and fails to cure that breach within
5 days after written notice of that breach and of Transoft’s intention to terminate;
(ii) notwithstanding paragraph 3.3(b)(i), and without limiting any of the other
the rights of Transoft pursuant to this Agreement or at law, if the Subscriber fails
to pay any amount owing to Transoft in accordance with the terms of this Agreement
or otherwise, within 15 days after written notice of that failure to pay and of
Transoft’s intention to terminate; or
(iii) the Subscriber:
(A) becomes insolvent;
(B) fails to pay its debts or perform its obligations in the ordinary course of
business as they mature;
(C) admits in writing its insolvency or inability to pay its debts or perform its
obligations as they mature; or
(D) becomes the subject of any voluntary or involuntary proceeding in bankruptcy,
liquidation, dissolution, receivership, attachment or composition or general assignment
for the benefit of creditors that is not dismissed with prejudice within thirty
(30) days after the institution of such proceeding.
Termination under paragraph 3.3(b)(i)and 3.3(b)(ii) above will in the absence of
a cure become effective automatically upon expiration of the cure period set out
in the applicable paragraph. Termination under subsection 3.3(b)(iii)will become
effective immediately upon written notice of termination at any time after the specified
event or the failure of the specified proceeding to be timely dismissed.
3.4 Termination. Upon termination of this Agreement:
(a) the Subscriber will immediately cease using the Licensed Produts and the license
herein will expire; and
(b) the Subscriber will immediately pay to Transoft any amounts owing to Transoft
by the Subscriber pursuant to the terms of this Agreement.
3.5 Deletion of Data and User ID. Within 30 days of expiry or termination
of this Agreement for any reason Transoft will have the right to delete the Subscriber’s
ID profile and all of the Subscriber’s data.
4.0 EES, PAYMENT, AND INTEREST
4.1 Demonstration Period. The Subscriber may use the Software during the
Demonstration Period at no cost to the Subscriber.
4.2 Annual Fee. In consideration for the use of the Software and the services
to be performed by Transoft during the Initial Term, on the last day of the Demonstration
Period the Subscriber will pay to Transoft an annual fee plus Value Added Taxes,
if applicable in an amount determined by Transoft from time to time, such annual
fee to be displayed on the website for OTISS at www.otisstraffic.com/.
4.3 Payment - Renewal Term. The Subscriber will pay in full the Annual Fee
applicable to the Renewal Term on the first day of the Renewal Term.
4.4 Additional Services. Services outside of the scope of the description
in this Agreement (the “Additional Services”) will not be included in the Annual
Fee. Upon request for Additional Services by the Subscriber, Transoft will provide
a quote for the cost for such Additional Services based on the hourly rates chargeable
by Transoft at the time of the request. Transoft will perform the Additional Services
on the written request of the Subscriber, and the Subscriber will pay for the Additional
Services plus Value Added Taxes, if applicable within 30 days of receipt of an invoice
for such Additional Services.
4.5 Interest. Any amounts not paid when due to Transoft pursuant to the terms
of this Agreement will bear interest at a rate of 24% per annum.
4.6 Maximum Amount of Data Storage. The Subscriber acknowledges and agrees
that the Annual Fee is based on the understanding that the Subscriber will not exceed
the Maximum Amount of Data Storage. Should the Subscriber exceed the Maximum Amount
of Data Storage, Transoft is entitled to charge an additional fee to the Subscriber,
as determined by Transoft.
5.0 LIMITED WARRANTY AND DISCLAIMER
5.1 Limited Warranty. Transoft warrants that the Software will perform substantially
in accordance with the description set out at www.transoftsolutions.com/ (the “Performance
Description”). The Subscriber will within 30 days of commencing use of the Software,
give written notice to Transoft of any perceived inconsistency with the Performance
Description. Transoft will use commercially reasonable efforts to correct any defects
or deficiencies in the Software resulting in inconsistency with the Performance
Description for which it has received notice in accordance with this paragraph 5.1.
This limited warranty is void if a defect or deficiency has resulted from:
(a) use of the Software by the Subscriber in any manner not contemplated in this
(b) alteration, modification, or misuse of the Software by the Subscriber or its
agents or employees;
(c) damage or deficiencies caused by:
(i) malfunction of the Subscriber’s equipment or operating system; or
(ii) software not developed by Transoft.
5.2 Acknowledgement. The Subscriber acknowledges and agrees that except for
the limited warranty pursuant to paragraph 5.1, the Software is provided “as is”
and Transoft makes no warranty, representation or guarantee, expressed implied or
statutory, with respect to the Software whether as to the accuracy, reliability,
suitability, function, absence of errors, or otherwise whatsoever and Transoft specifically
disclaims any warranty of merchantability or fitness for a particular purpose.
5.3 Disclaimer. In no event willTransoft or its affiliated companies, directors,
employees, or contractors (the "Representatives") be liable for any damages arising
from the Subscriber’s use or inability to use the Software or for any loss or damage
whether caused or alleged to be caused directly or indirectly by the Software including,
but not limited to, any interruption of service, loss of business or anticipated
profits, loss of goodwill, loss of data, computer failure, lost savings, or incidental,
special, punitive or consequential damages resulting from the use or operation of
the Software even if caused by the negligence of Transoft and even if Transoft had
the knowledge of the possibility of such liability, loss, or damage. Notwithstanding
the generality of the foregoing, any liability of Transoftand its Representatives
is limited exclusively to the provisions of paragraph 5.1.
5.4 Limitation. Without limiting the generality of Sections 5.2 and 5.3,
under no circumstances will Transoft become responsible for any costs, payments,
claims or damages, other than to refund to the Subscriber any unused portion of
the Annual Fee, less an administration fee of $100.
5.5 Access. Without limiting the generality of Section 5.3, the Subscriber
acknowledges and agrees that the Software may be unavailable from time to time as
a result of scheduled and unscheduled maintenance or other circumstances beyond
the control of Transoft.
5.6 Data. Without limiting the generality of Section 5.3, the Subscriber
acknowledges and agrees that the results produced by the Software is compiled from
the trip generation manual published by Institute of Transportation Engineers (the
“ITE Data”). Transoft makes no representation as to the accuracy or reliability
of the data or information produced by the Software. If at any time there is a discrepancy
between the data produced by the software and the ITE Data, the ITE Data will prevail.
6.1 Confidentiality. Each party agrees that, it will:
(a) keep the Disclosing Party’s Confidential Information in complete secrecy; and
(b) except with the written consent of the other party not use or disclose the Disclosing
Party’s Confidential Information for any purpose.
Without limiting the generality of the foregoing, neither party will not use or
attempt to use the Disclosing Party’s Confidential Information in any manner which
may injure or cause loss either directly or indirectly to the Disclosing Party or
its Subscribers or suppliers.
6.2 Survival. The provisions of this Article 6.0 will survive termination
of this Agreement.
7.1 Notice. Any notice required or permitted to be given under this Agreement
will be in writing, and be delivered to the address first above written or such
other address as the parties may, from time to time, designate. Notice will be delivered
by personal delivery, courier, registered mail, via facsimile transmission or via
confirmed electronic mail. The delivery of a notice will be deemed effective upon
receipt, if delivered personally or by courier, or five (5) business days from sending,
if delivered by registered mail or the date of transmission, if delivered by facsimile
or upon acknowledged receipt by the recipient if delivered by electronic mail.
7.2 Entire Agreement. This Agreement contains the entire agreement between
the parties respecting the subject matter, and supersedes all other agreements whether
written, or oral between the parties, it being expressly understood that there are
no other representations, terms, warranties, conditions, guarantees, promises, agreements,
collateral contracts or collateral agreements express or implied, or statutory,
other than those contained in this Agreement and that this Agreement represents
the whole of the Agreement between the parties, and no alteration, modification
or amendment hereof will be binding unless made in writing and signed by the parties
7.3 Additional Acts. The parties will do such additional acts and execute
and deliver such further documents as may be requisite to give full effect to the
terms of this Agreement.
7.4 Severability. The invalidity of any particular portion, section or paragraph
of this Agreement will not affect the validity of any other provision herein and,
in such event, such invalid provision will be severable from this Agreement and
the remainder of this Agreement will be construed as if such invalid provision was
7.5 No Waiver. No waiver by any party hereto of any breach of any covenant,
representation, warranty, proviso, condition or stipulation herein contained whether
express or implied or negative or positive in form by any other party hereto will
have any effect or be binding upon any party hereto unless same will be in writing
and under the authority of such party, and any waiver whatsoever will extend only
to the particular breach so waived, and will not limit or affect the right of any
party with respect to any other or further breach.
7.6 Governing Law. This Agreement will be governed by and interpreted in
accordance with the laws of the Province of British Columbia and the federal laws
of Canada applicable therein.
7.7 Counterparts. This Agreement may be executed in any number of counterparts,
each of which will be deemed to be an original, but all of which together will constitute
one and the same document.
7.8 Gender.Whenever the singular or the masculine is used herein, same will
be deemed to include reference to the plural, feminine and body corporate as necessary.
7.9 Binding Effect. This Agreement will enure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, administrators, successors
and permitted assigns.