END-USER LICENSE AGREEMENT
Revised July 2023
- Program: The “Program” means the software program specified in the accompanying order form (the “Order Documentation”) or any other software provided to Licensee by SIVA Creative Incorporated (herein referred to as “CHAMBERMADE”) not covered expressly by a different agreement and includes the software and all accompanying data files and documentation, any updates to the Program and/or EULA, that may be provided from time-to-time by CHAMBERMADE, and all copies of any of the foregoing.
- Grant:Subject to payment of the applicable onboarding and periodic subscription fees, and the limitations and restrictions set forth in this agreement, CHAMBERMADE grants a non-exclusive license to use the Program front-end and back-end to the organization or individual by whom or on whose behalf this copy of the Program was licensed, being the named licensee in the Program (the licensee is identified, among other places, in the About dialog) (“Licensee”) for the term of this agreement. Licensee will not permit the Program to be accessed by more than the authorized number of users or workstations licensed, as set out in the About Dialog.
- User Login: Upon setup, a user profile (“login”) is created by CHAMBERMADE, that will allow access to the Program’s back-end, for the duration of the client subscription.
- Ownership: CHAMBERMADE licenses but does not sell the Program. CHAMBERMADE retains title and all ownership rights (including all intellectual property rights) in and to the Program front-end and back-end interfaces. This agreement in no way transfers any rights of ownership or license to the Program or any of the features or information in it, except as specifically stated. All bug reports, ideas for enhancement and other feedback provided by Licensee to CHAMBERMADE will be the property of CHAMBERMADE, and Licensee hereby assigns these items (including all intellectual property rights therein) to CHAMBERMADE, and CHAMBERMADE may use such information for purposes including but not limited to program troubleshooting, analytics, research and development, and training. All rights not expressly granted are reserved to CHAMBERMADE. Licensee must not remove, modify or obscure any copyright, trademark, patent or other proprietary rights notices that are contained in or on the Program or any part of it.
- Pay-Per-Use Fees:Additional fees may apply in order to initiate certain transactions (including premium features or services, as may be released from time-to-time) using the Program (each a “Paid Use”). These additional fees are not included in the license fee paid for the license granted under this agreement and are the responsibility of Licensee. These additional fees are subject to change from time-to-time at the discretion of CHAMBERMADE.
- Paid Use Restrictions:Licensee will only use each Paid Use transaction in relation to the single transaction or entity for which it was originally purchased. Licensee is required to create a new Paid Use transaction for each transaction, or similar transaction and a new Paid Use record for each transaction processed using the Program. Licensees that do not abide by this condition are subject to having their license suspended or terminated immediately by CHAMBERMADE.
- Third-Party Terms: Licensee acknowledges that Licensee may be required to agree to additional third-party terms and conditions not set out in this agreement in order to take full advantage of certain features of the Program and certain services that may be facilitated by the Program (for example, third-party accounting software, Point-of-Sale applications, or other API based integrations).
- Term: Access to CHAMBERMADE requires a minimum one year / Twelve (12) full calendar month subscription. This agreement is effective until terminated. After the initial minimum one year period, either party may, in its own discretion, terminate this agreement, at any time, by giving the other party at least three (3) full calendar months’ notice (“Termination Notice”), by way of CHAMBERMADE’s online official cancellation form.
CHAMBERMADE may terminate this agreement immediately where (a) the Licensee fails to comply with any term or conditions herein, (b) CHAMBERMADE ceases to have the necessary third-party licenses to provide the Program, or (c) a supplier threatens to terminate, suspends or terminates such a necessary license due to Licensee conduct or otherwise.
Upon issuance or receipt of a Termination Notice, CHAMBERMADE shall calculate the balance of the Licensee’s Payment Account and determine in an Accounts Summary, a return of funds (if any) or balance owing by the Licensee. Any such payments or refunds shall be made within 10 days from receipt of the Accounts Summary.
Upon termination, CHAMBERMADE reserves the right to either suspend, disable, and delete the Licensee’s access to the Program. The Licensee will immediately discontinue or cease to use or create any records on the program. Sections 4, 12, 13, 14, 17, and 23 and the obligation to pay transaction fees that were incurred prior to termination will survive termination of this agreement.
- Promotions / Discounts: CHAMBERMADE may, on occasion or from time-to-time, at CHAMBERMADE’s sole discretion, offer incentive by way of special promotion or discount. Any such promotion or discount shall be contingent upon the Licensee’s fulfillment of the expressed contractual agreement, as laid out herein or as described directly within the promotional or discount offer. Any failure on the part of the Licensee to meet the terms of said promotion or discount will result in the original face value of said promotion or discount becoming immediately due and payable.
- Support: If Licensee is entitled to support as set out at time of subscription registration, then during the support period:
(a) CHAMBERMADE will provide Licensee, during CHAMBERMADE’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 Licensee has installed up to and including the most recently made available Program updates, such support is limited to troubleshooting and Program operation assistance and does not include customization, consulting, data conversion or correction, or other services, or assistance with problems not attributable to the Program. If, in the course of providing such support, CHAMBERMADE is required to access, collect, use, disclose, dispose of or otherwise handle information of or about individuals that is subject to privacy laws, CHAMBERMADE will do so: (i) for the purpose of providing Program support; and (ii) in accordance with privacy laws and the other terms of this agreement; and
(b) if CHAMBERMADE, at its sole discretion, releases commercially available updates to the Program (excluding new full version releases of the Program), the updates will be made available to Licensee, in a manner determined by CHAMBERMADE, at no additional cost (excluding any third party connection charges) and on the same terms herein (unless such other terms are provided to Licensee with the update).
- Consent to Use of Data:Licensee agrees that the Program may collect and send statistical information about the occurrence of certain events within the Program relating to Licensee’s use of the Program to CHAMBERMADE (“Event Information”). CHAMBERMADE may use this information, as long as it is in a form that is not personally identifiable, to improve its products or to provide services or technologies. Licensee warrants that Licensee will not interfere or attempt to interfere with the collection and transmission of such information and acknowledges that information collected or transmitted may include information regarding the Licensee’s clients.
Therefore, Licensee acknowledges that CHAMBERMADE may:
(a) use this information for its internal business purposes, including for billing, to measure and understand the behaviour and preferences of our customers, to troubleshoot technical problems, to enforce this agreement, and to ensure proper functioning of the Program.
(b) collect and use technical data and related information—including but not limited to technical information about the Licensee’s device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services (if any) related to CHAMBERMADE.
- Reproduction: Licensee may not (solely or by way of providing access to any third party) reproduce, modify, transfer, store, transmit, sublicense, distribute, grant unauthorized access or sell the Program in any form or by any means and nor will Licensee decompile, disassemble or reverse engineer the Program or make any attempts in this regard, except to the extent that such activity is expressly permitted by law.
- Program is Confidential Information and a Trade Secret:Licensee acknowledges that the Program is proprietary to, is the confidential information of, and a valuable trade secret of, CHAMBERMADE and is entrusted to Licensee only for the purpose set forth in this agreement. Licensee will treat the Program in the strictest confidence and will not: (i) disclose or provide access to anyone other than Licensee’s employees with a need for access to exercise the license rights conferred under this agreement; or (ii) reverse engineer, decompile or disassemble the Program or any portion of it.
- Warranty and Disclaimer:CHAMBERMADE warrants that the Program will operate substantially in accordance with its documentation and Licensee’s sole remedy under this warranty is for CHAMBERMADE to either (at CHAMBERMADE’ sole discretion): (i) repair the Program to conform substantially in accordance with its documentation; or (ii) refund a prorated portion of the Program’s current month’s subscription fee to Licensee.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CHAMBERMADE, ON BEHALF OF ITSELF AND ITS SUPPLIERS, DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM, INCLUDING ANY MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER CHAMBERMADE NOR ANY OF ITS SUPPLIERS REPRESENT OR WARRANT: THAT THE PROGRAM WILL MEET LICENSEE’S REQUIREMENTS; THAT THE OPERATION OF THE PROGRAM WILL BE UNINTERRUPTED AND ERROR-FREE; OR THE CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY CONTENT OR OTHER INFORMATION PROVIDED THROUGH THE PROGRAM. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM.
- Limitation of Liability: CHAMBERMADE’s liability to Licensee with respect to this agreement and any other obligations related thereto will in all circumstances be limited to direct damages and will not, in the aggregate, exceed the value of one month’s subscription. In no event will CHAMBERMADE or its suppliers be liable for direct (except for CHAMBERMADE as set out in the prior sentence) indirect, consequential, exemplary, incidental, special, punitive, or aggravated damages, damages from loss of profits or revenues, failure to realize any expected savings, business interruption, loss of opportunity, or corruption or loss of data, or failure to transmit or receive any data, even if CHAMBERMADE has been advised of the possibility of such damages in advance. The limitations on liability in this paragraph will apply irrespective of the nature of the cause of action, demand or claim, including breach of contract (including fundamental breach), negligence, tort or any other legal theory, and will survive a fundamental breach or breaches of this agreement or of any remedy contained herein. For greater certainty, in no event will CHAMBERMADE be liable in respect of any third party claim.
- Amendments: CHAMBERMADE reserves the right, at its sole discretion, from time-to-time, to modify, add, or delete portions of this agreement. CHAMBERMADE will notify Licensee (either, at CHAMBERMADE’s choice, by: (a) using the contact information provided to CHAMBERMADE; or (b) electronic display during use of the Program) of any such revision and Licensee hereby agrees that continued use of the Program after such notice will constitute acceptance and agreement to be bound by the revised agreement.
- Governing Law: Licensee is responsible for compliance with local laws to the extent they are applicable and Licensee agrees to comply with all applicable laws with respect to its use of any of the program.
Where applicable, Licensee is responsible for ensuring its use of any programs and any materials accessible by way of the programs complies with the Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM), and / or Canada’s Anti-Spam Law (“CASL”), as may be amended from time-to-time, and with any other applicable rules and regulations of the Federal Communications Commission (“FCC”) or Canadian Radio-television and Telecommunications Commission (“CRTC”), as applicable, and any similar or replacement body with authority to administer and enforce same.
CHAMBERMADE will hold the Licensee liable and will require Licensee to indemnify CHAMBERMADE, its affiliated entities, and any of their respective directors, officers, employees, consultants, agents and suppliers in accordance with the terms of this agreement, for any damage which they may suffer, sustain, pay or incur as a result of the failure of Licensee or by an entity for whom Licensee is responsible to comply with any applicable law, including without limitation, CAN-SPAM (United States of America) or CASL (Canada), as applicable.
Except to the extent expressly provided in the following paragraph, this Agreement and the relationship between the Licensee and CHAMBERMADE shall be governed by the laws of the Province of Ontario, excluding its conflicts of law provisions. Licensee acknowledges that all entities governed under the Terms and Conditions as set forth in the United States – Mexico – Canada Agreement (USMCA), agree to be bound by the laws of the Province of Ontario. The Licensee and CHAMBERMADE agree to submit to the personal and exclusive jurisdiction of the courts located within the Province of Ontario to resolve any dispute or claim arising from this Agreement. If (a) Licensee is not a Canadian citizen; (b) Licensee does not reside in Canada; (c) Licensee is not accessing the Service from Canada; and (d) Licensee is a citizen of one of the countries identified below, Licensee hereby agrees that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and Licensee hereby irrevocably submit to the non-exclusive jurisdiction of the courts located in the state, province or country identified below whose law governs:
If Licensee is a citizen of any European Union country or Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of Licensee’s usual place of residence.
Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.
- Open Source Software: If there is any open source software in any program, that open source software is licensed under the terms of the license that accompanies such open source software. Nothing in this agreement limits the Licensee’s rights under, or grants Licensee rights that supersede, the license terms for such open source software.
- Links: Some links on Programs may enable users to leave a Program and connect directly to other sites or applications. Such linked sites or applications are entirely independent of the Program and will have other terms and conditions applicable to the use of that site or application. CHAMBERMADE 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 third party sites. CHAMBERMADE does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. CHAMBERMADE is providing these links only as a convenience and the inclusion of any link does not imply endorsement of the linked site by CHAMBERMADE. Licensee should carefully review privacy statements and other conditions of use of these third party sites. Licensee acknowledges and agrees that some of the content available through a Program may be supplied by third parties resident and/or operating and/or hosted in either the U.S. or Canada.
- Transition Matters:CHAMBERMADE will begin transitioning its users from the Licensee’s existing membership management software, if applicable, to the cloud-based CHAMBERMADE program. In order to give Licensee the best experience possible from the first day Licensee starts using the new Program, CHAMBERMADE needs to upload master documents, configuration files, and customer and contact information contained in Licensee’s existing membership management system to CHAMBERMADE prior to Licensee’s first use.
(a) Grant. Licensee hereby grants CHAMBERMADE the right to access Licensee’s Content, upload Licensee’s Content to CHAMBERMADE’s servers; and take such steps as necessary to make the Content ready for Licensee’s use by way of CHAMBERMADE (the “Limited Purpose”). Except as required by law, unless it receives Licensee’s written permission, CHAMBERMADE will not use Licensee’s Content other than as necessary to achieve the Limited Purpose. For clarity and without limiting the generality of the prior sentence, CHAMBERMADE confirms it will not use Licensee’s Content or derive information from it for any advertising or similar commercial purposes.
(b) Confidentiality. CHAMBERMADE shall not disclose the Content to any person except to its affiliates, employees, internal contractors and agents having both a need to know to accomplish the Limited Purpose and an obligation of confidentiality. The foregoing obligation of confidentiality and restrictions on use hereunder shall not apply to Content: (a) known to CHAMBERMADE before receipt from the Licensee, without a duty of confidentiality; (b) generally available to the public (or becomes so), unless due to a CHAMBERMADE breach; (c) received by CHAMBERMADE from a third party without a duty of confidentiality; or (d) is independently developed by or for CHAMBERMADE without any use of the Content. It shall not be considered a breach of this Agreement if CHAMBERMADE discloses Content as required by law; provided that CHAMBERMADE: (a) where permitted by law, gives Licensee written notice promptly upon receipt of a disclosure requirement and before the disclosure is made; (b) takes reasonable actions and provide reasonable assistance to the Licensee to secure confidential treatment of the Content; and (c) discloses only such Content as is required by law.
(c) Personal Information. Personal information that forms part of the Content will be stored by CHAMBERMADE in an encrypted manner and treated in accordance with all applicable Canadian and provincial privacy laws.
(d) Location U.S.A. – Licensee’s Content will be stored and backed-up at data centers located in the United States of America only.
(e) Location Canada – Licensee’s Content will be stored and backed-up at data centres located in Canada only.
(f) Security. CHAMBERMADE has implemented and will maintain and follow appropriate physical, technical and organizational measures intended to protect Licensee’s Content against accidental, unauthorized or unlawful access or disclosure, including without limitation, operational security, encryption, access control, identity management, threat management, logging and network security. Licensee’s Content will only be made available to those limited people at CHAMBERMADE or its affiliates that need access in relation to the Limited Purpose. CHAMBERMADE will promptly notify Licensee of any security incidents involving Licensee’s Content.
(h) Ownership. As between the parties, Licensee retains all rights, title and interests in and to the Licensee’s original Content, other than the rights specifically retained by CHAMBERMADE herein.
(i) Liability. Notwithstanding Section 15, CHAMBERMADE’s liability to Licensee in the event of CHAMBERMADE’s misuse of the Content is limited to direct damages and will not, in the aggregate, exceed the amount the Licensee actually paid CHAMBERMADE under this Agreement in relation to the Program during the one (1) calendar month preceding the claim.
(j) Amendments. Notwithstanding Section 16 of this Agreement, CHAMBERMADE will not unilaterally amend its commitments in Sections 22 (a) through (h) in a way that will result in greater Content use rights; a reduction of commitments or liability in relation to the Content; nor a change in Content ownership.
- Audit:CHAMBERMADE may at any time and from time-to-time audit and review any aspect of the Licensee’s use of the Program to ensure compliance with this Agreement, and the licensee will cooperate with providing assistance reasonably required to facilitate that audit. If CHAMBERMADE discovers any discrepancies that are not corrected within such period that CHAMBERMADE deems appropriate and notifies the Licensee of in writing, CHAMBERMADE may, immediately on written notice to the Licensee, terminate this Agreement and the License. If CHAMBERMADE discovers any material breach of this Agreement through an audit, the Licensee shall be responsible for the costs of such audits, otherwise, CHAMBERMADE will bear the audit costs.
- Supplemental Terms and Conditions:These supplemental license terms add to or modify the terms and conditions set out above in this agreement for the specific programs, services or components identified below:
(a) Licensee represents and warrants that:
(i) Licensee has the right and authority to use and disclose any information that Licensee transmits using CHAMBERMADE, including that the information is not subject to any confidentiality obligations and that any information of or about individuals is only accessed, collected, used, or disclosed by Licensee in accordance with applicable privacy laws;
(ii) Licensee will not tamper with CHAMBERMADE, including by translating, reverse engineering, decompiling, disassembling or modifying CHAMBERMADE or by merging CHAMBERMADE with any other system; and
(iii) Licensee will only use information Licensee receives from a client of Licensee through CHAMBERMADE with the consent of such client, and solely for the purpose of completing a transaction or record using the Program related to such client.
(b) Licensee is responsible for any errors in information supplied: (i) by a client of Licensee through the CHAMBERMADE service; or (ii) by Licensee through the CHAMBERMADE service, and Licensee will defend, indemnify, and hold CHAMBERMADE, its affiliates and related entities, and any of their respective directors, officers, employees, agents, and contractors harmless from and against all claims, liability, and expenses, including legal fees and costs, arising out of a claim by a third party relying on information supplied pursuant to (i) or (ii).
(c) For certainty and without limiting Section 13, CHAMBERMADE does not warrant the contents of any information transmitted using CHAMBERMADE, including its accuracy, completeness, or usefulness, nor does CHAMBERMADE warrant that any information transmitted using CHAMBERMADE is actually received by any party or is accurately transmitted.
(d) Licensee agrees that the receipt of information using CHAMBERMADE does not in any way limit, reduce or replace any obligation a Licensee may have to: (i) meet with, verify the identity of, or otherwise know their client, (ii) comply with any anti-money laundering, fraud prevention, or other similar laws, or (iii) comply with professional or ethical requirements with respect to their clients.
(e) CHAMBERMADE strongly discourages the inclusion of any credit card details or other highly confidential information in its Content and strongly advises their exclusion or redaction. Licensee agrees to indemnify CHAMBERMADE in respect of any third party claims relating to any Content, except where those claims arise due to CHAMBERMADE’s negligence or intentionally wrongful conduct.
(f) The Licensee represents and warrants that: (i) it has obtained meaningful consent from the applicable individual or entity for the collection, use and disclosure of Content consisting of personal information as defined in applicable privacy laws; (ii) Content does not and will not infringe any copyright, patent, trade-mark, trade secret or other proprietary rights or rights of publicity or privacy; (iii) materials do not and will not violate any law, statute, ordinance or regulation; and (iv) materials are not, and will not be, defamatory, trade libelous, obscene or pornographic.
(g) CHAMBERMADE reserves the right to remove (or have removed) from its servers any Content which it believes, in its sole discretion, may damage or expose to liability CHAMBERMADE or its affiliated entities, and any of their respective directors, officers, employees, consultants, agents and suppliers, and the Licensee authorizes CHAMBERMADE and its authorized representatives to effect such removal and consent to such removal. The Licensee agrees that CHAMBERMADE shall not be liable for, and waive any claim arising from, any such materials removal.
The above constitutes the entirety of the End-User License Agreement. Licensee’s authorized signatory’s acceptance of the above stated terms and conditions is required and understood as binding upon all Licensee’s subordinate users and successors in interest.