Terms of Service
END USER LICENSE AGREEMENT
Read this agreement carefully.
BY USING ALL OR ANY PORTION OF THE SCREENER PRODUCTS, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT USE ALL OR ANY PORTION OF THE SCREENER PRODUCTS. YOU WILL NOT BE GIVEN ACCESS TO ANY SCREENER PRODUCTS UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU HAVE PAID A FEE FOR USE OF ANY SCREENER PRODUCTS AND DO NOT AGREE TO THESE TERMS, YOU MAY TERMINATE YOUR ACCESS TO THE SCREENER PRODUCTS FOR A FULL REFUND PROVIDED YOU TERMINATE YOUR ACCESS WITHIN THIRTY (30) DAYS OF YOUR INITIAL PURCHASE.
IF YOU WISH TO USE THE SCREENER PRODUCTS AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH SCREENER FOR USE OF SCREENER PRODUCTS, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT.
This End User License Agreement ("Agreement") is entered into by and between Screener Technologies Inc. ("Screener") and the customer (individual or entity) that has procured the Screener products or services for use as an end user ("Customer"). "Effective Date" means the date on which accepts the terms and conditions of this Agreement. Screener reserves the right, at its sole discretion, to modify or replace this Agreement, or change, suspend, or discontinue any Screener Product(s) or Service Descriptions (as those terms are defined below), including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Screener Product(s), Screener website, or by sending you an email. It is your responsibility to check this Agreement periodically for changes. Your continued use of any Screener Product following the posting of any changes to this Agreement constitutes acceptance of those changes.
- SCREENER PRODUCTS
- Provision of Products & Versions.
Screener offers various online software-as-a-service products (each, a "Screener Product(s)"). Screener, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to Screener Products. Customer acknowledges and agrees that Screener has no obligation to make available to Customer any subsequent versions of Screener Products. Customer also agrees Customer may have to enter into a renewed version of this Agreement, in the event Customer wants to download, install or use a new version of Screener Products. Screener Products are as described in the then-current version of the service description for the applicable Screener Product ("Service Description"), a copy of which will be provided to Customer upon request at any time. Each Screener Product is provided on a subscription basis for a set term designated at the time of purchase (each, as "Subscription Term"). Customer shall purchase and Screener shall provide the specific Screener Products as specified at the time of purchase.
- Access to Products.
Customer may access and use Screener Products solely for its own benefit and in accordance with the terms and conditions of this Agreement, the end user technical documentation provided with the Screener Products ("Documentation") and any scope of use restrictions designated at the time of purchase. Use of and access to Screener Products is permitted only by the number of employees of Customer specified at the time of purchase ("Permitted Users"). If Customer is given passwords to access Screener Products on Screener’s systems, Customer shall require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords.
Customer may permit its independent contractors and consultants who are not competitors of Screener ("Contractors") to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor with all of the terms and conditions of this Agreement and any such use of Screener Products by such Contractor is for the sole benefit of Customer. Use of the Screener Products by Contractors and Customer in the aggregate must be within the restrictions specified at the time of purchase.
- General Restrictions; Acceptable Use.
Customer shall not: (a) rent, lease, copy, provide access to or sublicense any Screener Product to a third party; (b) use any Screener Product to provide or incorporate any Screener Product into any product or service provided to a third party, (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to Screener Products, except to the extent such restriction is prohibited by applicable law (and only upon advance notice to Screener), (d) modify any Screener Product or any Documentation, or create any derivative product from any of the foregoing, (e) remove or obscure any proprietary or other notices contained in any Screener Product (including any reports or data printed from Screener Products) or (f) publicly disseminate information regarding the performance of Screener Products. In addition, when using or otherwise accessing the Screener Products, Customer and its Permitted Users shall at all times abide by the Screener Acceptable Use Policy set forth at https://screener.io/terms/use (the "AUP").
- CUSTOMER DATA
"Customer Data" means any business information or other data of any type which is provided by Customer to Screener in connection with Screener Products, including information input by Customer, or provided to Screener for inputting, into the Screener Products. Customer shall ensure that Customer’s use of Screener Products and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international law, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Screener that Customer has sufficient rights in the Customer Data to grant the rights granted to Screener in Section 2.2 below and that the Customer Data does not infringe the rights of any third party.
- Rights in Customer Data.
As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Screener. Subject to the terms of this Agreement, Customer hereby grants to Screener a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide Screener Products to Customer.
- Uploads of Customer Data.
Customer shall be responsible for providing all Customer Data to Screener and shall provide such Customer Data in a format consistent with the technical compatibility requirements set forth in the applicable Service Description (or as otherwise specified by Screener) ("Technical Requirements"). Errors in loading Customer Data onto Screener systems due to defective media, erroneous data or failure to meet Technical Requirements may be rejected by the Screener Products or may be referred back to Customer for resolution and Screener shall have no responsibility for any related impact on the applicable service.
- Storage of Customer Data.
Screener does not provide an archiving service. Screener agrees only that it shall not intentionally delete any Customer Data which is less than 30 days old from Screener Products prior to termination of Customer’s applicable Subscription except as directed by Customer or its Permitted Users. Screener expressly disclaims all other obligations with respect to storage. If specified at the time of purchase, Screener may charge Customer a fee for storing the Customer Data.
- Indemnification by Customer.
Customer shall indemnify, defend and hold harmless Screener from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Data, (b) any action taken (or not taken) by Customer based upon use of a Screener Product, or (c) any service or product offered by Customer in connection with or related to any Screener Product. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Screener at Customer’s expense.
- Screener Technology.
This is a subscription agreement for use of Screener Products and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to the Screener Products and that irrespective of any use of the words "purchase", "sale" or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Screener or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Screener Products, Service Descriptions, Documentation, and any and all related and underlying technology and documentation (collectively, "Screener Technology"). Further, Customer acknowledges that the Screener Products are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of the Screener Product itself.
Customer, from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information to Screener ("Feedback"). Screener may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
- Screener Technology.
- SUBSCRIPTION TERM, FEES & PAYMENT
- Subscription Term and Renewals.
Unless otherwise specified at the time of purchase, each Subscription Term shall automatically renew for additional twelve month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
- Fees and Payment.
All fees are as set forth at the time of purchase and shall be paid by Customer within thirty (30) days of the Effective Date, unless otherwise specified at the time of purchase. Except as expressly set forth in Section 6 (Limited Warranty) and Section 7 (Availability and Service Credits), all fees are non-refundable. Screeners’ fees are exclusive of all shipping costs and Customer is required to pay any sales, use GST, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Screener. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
- Suspension of Service.
If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Screener reserves the right to suspend Customer’s access to the applicable Screener Product (and any related services) without liability to Customer until such amounts are paid in full.
- Subscription Term and Renewals.
- TERM AND TERMINATION
This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
- Termination for Cause.
Either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). Notwithstanding the foregoing, Screener may terminate this Agreement immediately upon notice to Customer if Customer breaches Section 1.4 (General Restrictions; Acceptable Use).
- Effect of Termination.
Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to Screener Products (including any and all related Screener Technology) and delete (or, at Screeners’ request, return) any and all copies of the Documentation, any Screener passwords or access codes and any other Screener Confidential Information in its possession. Customer acknowledges following termination it shall have no further access to any Customer Data input into the Screener Products, and that Screener may delete any such data as may have been stored by Screener at any time. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
The following Sections shall survive any expiration or termination of this Agreement: 1.4 (General Restrictions; Acceptable Use), 2.5 (Indemnification by Customer), 3 (Ownership), 4.2 (Fees and Payment), 5 (Term and Termination), 6.2 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), 9 (Indemnification), 10 (Confidential Information), and 12 (General Terms).
- DISCLAIMER OF WARRANTIES
- Limited Warranty.
Screener warrants, for Customer’s benefit only, that Screener Products will operate in substantial conformity with the applicable Documentation. Screener does not warrant that Customer’s use of the Screener Products will be uninterrupted or error-free, nor does Screener warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Screeners’ sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Screeners’ sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work- around that corrects the reported non-conformity, or if Screener determines such remedies to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole remedy a refund of: (a) the monthly subscription fees specified at the time of purchase which are allocable to the thirty (30) day period prior to the date the warranty claim was made and (b) any fees Customer has pre-paid for use of Screener Products or related services it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 6.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, or (ii) if the error was caused by misuse, unauthorized modifications or third- party hardware, software or services or (iii) to use provided on a no-charge or evaluation basis.
- Warranty Disclaimer.
EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.1, Screener Products and all SERVICES ARE PROVIDED "AS IS". NEITHER SCREENER NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. SCREENER SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SCREENER.
- Limited Warranty.
- SUPPORT SERVICES, AVAILABILITY AND SERVICE CREDITS
During the Subscription Term of each Screener Product, Screener shall provide end user support for the support level specified at the time of purchase.
Target availability for Screener Products is 99.5% per calendar month, excluding Scheduled Downtime ("Target Availability").
- Scheduled Downtime.
The Screener Products shall be down (and inaccessible) during certain time windows for maintenance purposes on a schedule posted by Screener (which shall typically be during the periods of lowest anticipated usage) ("Scheduled Downtime"). Cumulative Scheduled Downtime will not exceed 24 hours in any calendar month (not including any Customer-scheduled downtime).
Screener shall not be responsible for, and Customer shall not be entitled to Service Credits for, any Screener Products failures caused by: (i) use by Customer in a manner not authorized in this Agreement or the applicable Documentation, (ii) Customer or third party equipment, (iii) third party acts or systems including third party cloud service providers; or (iv) general Internet problems, force majeure, natural disasters, emergencies, acts of terror or war, or other factors outside of Screeners’ reasonable control.
- LIMITATION OF REMEDIES AND DAMAGES
NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SCREENER’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SCREENER DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT.
THIS SECTION 8 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED "GENERAL RESTRICTIONS," "CUSTOMER DATA" OR "CONFIDENTIAL INFORMATION".
The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Screener shall indemnify and hold harmless Customer from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark asserted against Customer by a third party based upon Customer’s use of Screener Products in accordance with the terms of this Agreement, provided that Screener shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Screener to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of any Screener Product is, or in Screener’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Screener may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using Screener Products; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term which was paid by Customer but not rendered by Screener. The foregoing indemnification obligation of Screener shall not apply: (1) if a Screener Product is modified by any party other than Screener, but solely to the extent the alleged infringement is caused by such modification; (2) a Screener Product is combined with other non-Screener products or processes not authorized by Screener, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of Screener Products; or (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within Screener Products. THIS SECTION 9 SETS FORTH SCREENER’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
- CONFIDENTIAL INFORMATION.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains ("Receiving Party") from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Screener Technology, performance information relating to the Screener Products, and the terms and conditions of this Agreement shall be deemed Confidential Information of Screener without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
Screener may disclose Customer as a customer of Screener, or issue a press release, each only with Customer’s prior written consent. For investor relations purposes, Screener may disclose Customer as a customer of Screener, on a confidential basis, without prior written consent.
- GENERAL TERMS
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
- Governing Law; Jurisdiction and Venue.
This Agreement shall be governed by the laws of the Province of British Columbia and Canada without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the provincial and Canadian federal courts located in Vancouver, British Columbia and both parties hereby submit to the personal jurisdiction of such courts.
- Attorneys’ Fees and Costs.
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses or email addresses set forth at the time of subscription to the User License Agreement or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail or (iv) through email.
- Amendments; Waivers.
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
- Entire Agreement.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that Screener Products are on-line, subscription- based products, and that in order to provide improved customer experience Screener may make changes to Screener Products, and Screener will update the Screener Products Service Description accordingly.
- Audit Rights.
Upon Screener’s written request, Customer shall furnish Screener with a signed certification certifying that Screener Products are being used pursuant to the terms of this Agreement, including any access and user limitations. With prior reasonable notice of at least ten (10) days, Screener may audit the use of Screener Products by Customer provided such audit is during regular business hours. Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use of Screener Products is not in accordance with the permitted scope of use.
- Force Majeure.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
Screener may use the services of subcontractors for performance of services under this Agreement, provided that Screener remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of Screener Products as required under this Agreement.
- Independent Contractors.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.