THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS BETWEEN LEVR Media Inc. (THE “COMPANY”) AND THE PERSON WHO USES THE SOFTWARE SERVICE, WHICH ACCOMPANIES THIS AGREEMENT (THE “USER”/”YOU”). THIS AGREEMENT GIVES A USER THE RIGHT TO ACCESS AND USE THE COMPANY’S SOFTWARE, PRODUCTS AND SERVICES (“PRODUCTS”), AS FURTHER IDENTIFIED HEREIN, PURCHASED FROM THE COMPANY, ITS RESELLERS OR AGENTS PURSUANT TO A PURCHASE AGREEMENT, CONTRACT, SALES ORDER, INVOICE OR SIMILAR DOCUMENT (“PURCHASE CONTRACT”). THE COMPANY IS WILLING TO GRANT THE USER THE RIGHT TO ACCESS AND USE THE COMPANY’S PRODUCTS ONLY IF THE USER ACCEPTS ALL OF THE TERMS OF THIS AGREEMENT, AND PAYS OR HAS PAID THE COMPANY, ITS RESELLERS OR AGENTS, THE FULL SUBSCRIPTION PRICE (TO INCLUDE ALL APPLICABLE TAXES AND FEES) FOR USE OF THE LICENSE TO THE PRODUCTS PURCHASED.
BY CLICKING THE “I AGREE” BUTTON AND/OR ACCESSING THE PRODUCTS, THE USER ACKNOWLEDGES THAT USER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF THE USER DOES NOT AGREE TO ALL OF THE TERMS IN THIS AGREEMENT, THE USER SHOULD NOT ACCESS OR OTHERWISE UTILIZE THE PRODUCTS BECAUSE NO LICENSE SHALL HAVE BEEN GRANTED THERETO.
DEFINITIONS. In this Agreement:
- “Activation Date” means the first date that you are enabled by Dryrun to connect to the Services pursuant to a paid subscription.
- “Affiliate” means, in respect of an entity, any entity that directly or indirectly controls, is controlled by, or is under common control with such entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of an entity.
- “Agreement” means this Subscription Services Agreement, including all accepted Order Forms.
- “Confidential Information” means and includes any written or orally or visually disclosed information relating to the disclosing party’s business identified as “confidential” or which the receiving party should reasonably know is confidential or not generally known to the public, including, without limitation:
- all know-how, technology and other proprietary information owned, licensed, used or developed by the disclosing party, including proprietary rights protected by trade secret and other intellectual property rights, and
- all information relating to the disclosing party’s business, the Services, and to all other aspects of the disclosing party’s structure, personnel, operations, financial matters, marketing, commercial strategies, customer lists, contractual records, correspondence, products, programs, devices, concepts, inventions, designs, methods, data, and items provided to the disclosing party by third parties subject to restrictions on use or disclosure.
- “Documentation” means the documentation, help files, user manuals, handbooks, service descriptions, and any other written or electronic material relating to the Services provided by Dryrun to its customers from time to time.
- “Effective Date” means the date on which you first accept this Agreement.
- “End Users” means your clients who are granted a limited right to use the Services in accordance with this Agreement. “End User” shall mean any of them;
- “Feedback” has the meaning ascribed to it in Section 8(c).
- “Fees” means the monthly subscription fees for the Services as set out in the fee schedule available at https://www.dryrun.com/pricing/, as revised from time to time, unless otherwise provided in the Order Form(s).
- “Non-Conformity” means the failure of the Services to comply with the applicable Services Description.
- “Order Form(s)” means the order form(s) or purchase order(s) executed by you and accepted by Dryrun from time to time setting out the details of the Services subscribed to by you, including applicable fees and other payment terms. By executing and submitting an Order Form, you agree to be bound by the terms of this Agreement, which will be incorporated by reference into and form an integral part of hereof.
- “Dryrun System” means, in respect of the Services, the entire physical operation(s) located at the facilities designated by Dryrun from time to time to host the Services, including all networks and servers, and Dryrun and third party hardware and software utilized in the provision of the Services.
- “Representatives” means, in respect of a party, the directors, officers, employees, agents and contractors of such party.
- “Services” means the cash flow forecasting platform and/or any other services supplied by Dryrun to you, as more fully described in the Order Form(s).
- “Services Description” means Dryrun’s published specifications for the Services.
- “Subscriber Data” means data which you or your end users submit in connection with the Services, and which you or your end users generate through the use of the
- “System Availability Period” means, in respect of the Services, twenty-four (24) hours per day, seven (7) days per week, excluding the System Maintenance Period and any downtime due to causes described in Sections 5 or 12(c).
- “System Maintenance Period” means, in respect of the Services, scheduled maintenance periods during which access to the Services will not be available to you due to required system maintenance, upgrades, and other hosting requirements for the Dryrun System.
- “Term” has the meaning ascribed to it in Section 3.
All other terms defined in this Agreement shall have the meanings ascribed thereto.
In consideration of the payment of the purchase price for the right to use Company’s Products, and the User’s adherence to all provisions of this Agreement, the Company grants the User a personal, non-exclusive, non-transferable, revocable license to access and use the Company’s Products covered hereunder for the sole purpose of accessing the Products purchased under the Purchase Contract. The Products that are covered by this Agreement include: Dryrun Software Service Agreement. The Products also include any other programs, tools, components and any updates (for example, documentation, help content, bug fixes, or other information and releases) related to the Products that Company provides or makes available to you.
Dryrun will be responsible for delivery of access to the Services on the Dryrun System only, and is not responsible for any failure due to your/End User telecommunications connections, facilities (including internal local area networks (LAN)) or local infrastructure, or for any third party hardware, software or systems used to provide the Services;
Dryrun will use all reasonable efforts to ensure that the Services will be available during the System Availability Period;
Dryrun will endeavor to provide you with at least forty-eight (48) hours prior electronic notice of any scheduled System Maintenance Period;
Dryrun shall have the right to implement updates and upgrades to any software systems used in providing the Services, at its sole discretion;
Except as otherwise provided herein, Dryrun shall have the right to suspend or alter the Services at any time upon not less than sixty (60) days’ prior notice, which notice shall be posted on Dryrun’s website or emailed to you. Notice shall not be required in the event of an emergency;
Dryrun will endeavour to respond promptly to incidents that have been reported by you;
In the event of a Dryrun System failure, Dryrun will use commercially reasonable efforts to complete data recovery requests using the most recent version of the backup data, databases, applications and configuration pieces required to restore your data; and
Dryrun cannot be responsible for the unavailability of Services due to causes beyond Dryrun’s reasonable control, including without limitation, those described in this Agreement.
You shall use the Services only in accordance with the Documentation and any other instructions issued by Dryrun from time to time. Failure to use the Services in accordance with instructions provided by Dryrun may result in failure of all or any part of the Services, and/or accidental loss of data or data integrity. If you do not understand the requirements for the proper use of the Services, you must contact Dryrun for additional information.
You may make copies of the Documentation solely for your own internal purposes in conjunction with use of the Services, including your testing and optimization of the Services. Copyright and other proprietary rights in the Documentation, including all full and partial copies thereof, shall remain vested in Dryrun. You may not remove any title, trademark, copyright and/or restricted rights or proprietary notices or labels from, or otherwise modify the Documentation, and all copies of the Documentation must include all such notices and labels.
You will use all reasonable efforts to prevent unauthorized access to or use of the Services, and will promptly notify Dryrun of any unauthorized use or access.
You shall not, and shall use reasonable means to ensure that End Users do not:
- introduce any kind of malware, including but not limited to viruses, worms, Trojan horses or other harmful code that may damage the operation of the Services or the Dryrun System;
- use the Services in any manner which could damage, disable, overburden or impair any part of the Dryrun System, or interfere with any other Dryrun subscriber’s data or their ability to use the Services or the Dryrun System;
- attempt to gain unauthorized access to the Services or their related systems or networks;
- attempt to gain access to other subscribers’ accounts through any manner of hacking or password mining or other means;
- attempt to use such methods as SQL Injection, Cross Site Scripting, Remote File Inclusion, Cross Site Request Forgery and any other methods not authorised by Dryrun to gain access to the Dryrun System or the Services;
- attempt a “denial of service” (DOS) attack of any kind;
- use the Services or the Dryrun System to transmit spam, junk email or other unsolicited email of any kind; or
- in connection with the Services, engage in conduct that would constitute a criminal or quasi-criminal offence, that could give rise to civil liability, intellectual property rights infringement, or privacy rights violations, or that would otherwise violate any applicable local, provincial, state, federal or international law, or accepted Internet protocol.
Upon completion of the Services, you and your representatives shall cease all use of the Services, and delete all full and partial copies of any Dryrun materials contained in or on your/your personnel’s systems.
FEES AND PAYMENT
You agree to pay to Dryrun the Fees, plus all applicable taxes.
Fees are payable monthly on the anniversary of your Activation date, or annually in advance on the anniversary of the Subscriber’s activation date, unless otherwise provided in the Order Form(s).
Unless otherwise expressly stated, all references to monetary amounts contained in this Agreement, an accepted Order Form, a sales quote, or any reports, invoices or other documents issued pursuant to or in connection with this Agreement, shall be deemed references to United States
Subscriber shall pay interest on any invoiced amounts which are unpaid after 30 days at a rate of 2% per month (24% per annum, effective rate) or the maximum amount allowed by law (whichever is less), from the date such amounts become due and payable. Subscriber also agrees to pay all costs incurred by Dryrun to collect any overdue amounts.
Without limiting any other rights and remedies which Dryrun may have, Dryrun shall also have the right to (i) revise payment terms, and/or (ii) immediately suspend or terminate any or all of the Services upon notice but without liability to Subscriber or any other party, if any Fees or other amounts owing by Subscriber to Dryrun remain unpaid for three consecutive months, including any charge backs for NSF checks, or if any billing or contact information provider by Subscriber is false or fraudulent.
All Fees are exclusive of all taxes, duties and levies of any kind, including any sales, use, excise, value-added and other applicable taxes, withholdings, and governmental charges (collectively, “Taxes”). Subscriber shall be solely responsible for the payment of all applicable Taxes, other than taxes on Dryrun’s income. If Dryrun pays any such amounts on behalf of Subscriber, Subscriber shall reimburse Dryrun upon presentation of proof of payment.
INTELLECTUAL PROPERTY RIGHTS
You acknowledge that Dryrun has developed and uses valuable technical and non-technical information, trade secrets, expertise and the like in the supply of the Services. Subscriber agrees that, except for the limited right to use the Services as set out in this Agreement, all rights, title and interest in and to the Services, Dryrun software and materials, Documentation, and any other new or pre-existing materials, models, methodology, information, technology, patents, trade secrets, hardware, software, equipment and materials used by Dryrun in conjunction with the delivery of the Services, including all modifications and derivatives thereof, shall be and remain vested in Dryrun. Except for the limited right to use as necessary in conjunction with the use of the Services or any deliverables produced as part of the Services, Subscriber and Subscriber’s Representatives obtain no rights or licenses in or to any Dryrun information, methodology, software, technology, trademarks, or other intellectual property.
You recognize and acknowledge the great value of the goodwill associated with Dryrun’s name and trademarks, and the identification of Dryrun’s goods or services therewith. Subscriber agrees that it obtains no rights, title or interest of any kind in or to any trademarks, tradenames, logos, service marks or other markings belonging to Dryrun.
Dryrun is granted a perpetual, irrevocable, royalty-free, worldwide license to use any suggestions, recommendations, comments or other feedback (“Feedback”) provided by you and/or your End Users, including their Representatives, with respect to the Services, the Services software, Documentation or any other propriety information provided by Dryrun to Subscriber. All Feedback shall be given voluntarily and without expectation of, or requirement for, compensation. Specifically, you will not give any Feedback that is subject to license or other restrictions, or that may require any Dryrun product, technology, service or documentation to be licensed or otherwise shared with any third party.
Subscriber shall be solely responsible for the accuracy, quality, integrity and legality of Subscriber Data (including, but not limited to, compliance with all applicable privacy, security and export legislation).
The parties acknowledge that, as between Subscriber and Dryrun, Subscriber shall at all times remain the owner of Subscriber Data. Dryrun shall not use Subscriber Data or disclose Subscriber Data to any third parties, except as may be necessary for the purpose of offering Dryrun’s services. Without limitation, Subscriber agrees that Dryrun may store, back-up and archive Subscriber Data, either on its own servers or on servers owned by a third party service provider; and (ii) use aggregated and/or derivative data generated from the use of the Services, provided that Subscriber’s and its End Users’ anonymity are preserved.
Dryrun shall maintain appropriate administrative, physical, and technical safeguards designed to protect the security of the Services and Customer Data. If Customer’s use of the Services involves processing personal data pursuant to Regulation 2016/679 (the “GDPR”) and/or transferring personal data outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of the data processing addendum shall apply to such personal data and be incorporated into the Terms of Service upon the Effective Date. The data processing addendum may be accessed on our site.
Each party agrees to hold all Confidential Information of the other party in strictest confidence, not to make use thereof other than for the performance of this Agreement, to disclose such Confidential Information only to its Representatives who are under an obligation of confidentiality with respect thereto and who require such information for the performance of their duties, and not to disclose such Confidential Information to any third parties, except with the disclosing party’s prior written consent; provided, however, that the foregoing restrictions shall not apply to Confidential Information of the other party:
- that is now or hereafter in the public domain through no action or failure to act on the part of the receiving party or its Representatives;
- that was received by or was available to the receiving party from a third party without any obligation of confidentiality to the disclosing party;
- that is independently developed by or for the receiving party by persons who have not had access to the Confidential Information of the disclosing party;
- that is disclosed with the written consent of the disclosing party; or
- that is disclosed pursuant to the requirement of a governmental agency or is required by operation of law, regulation or court order, provided that whenever possible prompt notice is given by the receiving party to the disclosing party prior to such disclosure so that the disclosing party may seek a protective order or other remedy.
- Each party agrees to protect and safeguard Confidential Information of the other party from loss, theft, destruction and inadvertent disclosure using the same degree of care as it uses to protect its own confidential information of a like nature, but in no event less than a reasonable standard of care.
- Each party shall hold the other party’s Confidential Information in trust for the other party and all right, title and interest in and to such Confidential Information shall remain with the disclosing party.
- While some exceptions apply, upon termination of the Services, or otherwise upon the request of a disclosing party, the receiving party will promptly destroy all full and partial copies of the disclosing party’s Confidential Information in its possession or under its control, and certify such destruction in writing.
You shall be solely responsible for, and shall hold Dryrun and its Representatives harmless from any loss, damage or liability arising in connection with:
- Your, your Representatives’ or your End Users’ use of the Services, and all data and other content transmitted, posted, received or created on the Dryrun System through your or your End Users’ accounts, even if transmitted, posted, received or created by a third party;
- Your, your Representatives’ or its End Users’ use, misuse, failure to use, or inability to use any data services required for the use of the Services, including any abuse, fraudulent use or unauthorized access thereto;
- Any cause set out in Section 5 or 12(c);
- Any claim by an End User against Dryrun or its third party suppliers;
- Any claim by a third party that your data or your use of the Services in violation of this Agreement infringes or misappropriates the intellectual property rights of any third party; and/or
- Any breach by you, your Representatives or your End Users of any of the terms and conditions of this Agreement.
RESERVATION OF RIGHTS AND OWNERSHIP
The Company’s Products are the property of the Company and its licensor(s), if any, and subject to applicable patent, copyright, trade secrets, trademarks and other proprietary rights. The Products are licensed, not sold, to the User for use only under the terms of this Agreement, and the Company reserves all rights not expressly granted to the User.
DEVELOPER AND TEST KEYS
You acknowledge that Services provided as part of any developer program or other free access programs are provided “as is” without warranty of any kind, and are supplied and used at your sole risk. Dryrun expressly disclaims, and shall have no liability whatsoever, with respect to any Services provided pursuant to this Section 2, or your use thereof.
Dryrun has the right to terminate a free access subscription, all related data and your access for any account without notices and at their sole discretion.
This Agreement will terminate immediately if the User breaches any term of this Agreement. Further, in the event of a termination or expiration of any agreement between the Company and a third-party content provider or licensor of all or a part of the Products, the User’s right to access and use the Products may also terminate or expire without prior notice to User. A User may terminate this Agreement at any time by notifying the Company in writing. Upon receipt of notice of termination from the User, the license and the User’s access to the Products shall cease. Upon termination, any refund to which the User may be entitled shall be determined in accordance with the terms of the applicable Purchase Contract.
CONTENT MAINTAINED BY THE COMPANY
User acknowledges and understands that: (1) the Company may, from time to time, elect to update the Products, but the Company does not warrant or guarantee that any Products or other information accessed through the Company’s website(s) will be updated at any time during the term of this Agreement; and (2) the Company does not recommend, warrant or guarantee the use or performance of any third-party product or service described in the Products or elsewhere in the Company’s website(s), nor is the Company responsible for malfunction of such products or services due to errors in the Products, the User’s negligence or otherwise. User agrees to seek additional information on any third-party product or service from the respective third party. The User covenants that it will use the Products only for its intended use.
The Company warrants that the Products will perform substantially in accordance with the accompanying materials for a period of 90 Days (the “Warranty Period”) from the date of receipt. If an implied warranty or condition is created by applicable law, and federal or provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (90 Days). AS TO ANY DEFECTS DISCOVERED AFTER THE WARRANTY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Any supplements or updates to the Product, including without limitation, any (if any) updates provided to you after the expiration of the Warranty Period are not covered by any warranty or condition, express, implied or statutory.
The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, the Company and its suppliers provide the Product and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, AND CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
LIMITATION OF LIABILITY
Except as specifically provided herein, neither the Company, its affiliates, resellers, agents, or licensors, if any, shall be liable for any claim, demand or action arising out of, or relating to, the User’s use of the Products or the Company’s performance of (or failure to perform) any obligation under this Agreement or for special, incidental or consequential damages, including, without limitation, damages due to lost revenues or profits, business interruption, or other damages caused by User’s inability to use the Products, even if the Company, its affiliates, resellers, agents, or licensors have been advised of the possibility of such loss or damages, and whether or not such loss or damages is or are foreseeable. The entire cumulative liability of Company, and its affiliates, resellers, agents, or licensors for any reason arising from or relating to this Agreement shall be limited to the amount paid by you to Company for the Products in the twelve (12) month period immediately preceding the event giving rise to such claim.
The Company’s Products are subject to Canadian export control laws and may be subject to export or import regulations in other countries. Unless in compliance with applicable law and specifically authorized in writing by the Company prior to any Product access, the User shall not export the Products under any circumstances whatsoever. In any case, the User will indemnify and hold the Company harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorney’s fees) arising from, or relating to, any breach by the User of the User’s obligations under this section.
GOVERNING LAW, JURISDICTION AND VENUE
This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the Province of Alberta as those laws are applied to contracts entered into, and to be performed entirely in Alberta by Alberta residents. Any legal suit, action or proceeding arising out of, or relating to this Agreement, shall be commenced in a court in Alberta, Canada, and each party hereto irrevocably submits to the personal and exclusive jurisdiction and venue of any such court in any such suit, action or proceeding and waives any right which it may have to transfer or change the venue of any such suit, action or proceeding, except that in connection with any suit, action or proceeding commenced in a state court, each party retains the right to remove such suit, action or proceeding to federal court to the extent permissible. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
If any legal action or proceeding is brought for the enforcement of this Agreement or arises from the alleged breach, dispute, default or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party or parties shall be entitled to recover reasonable attorney’s fees and other costs incurred as a result of such legal action or proceeding.
It is recommended that User review the Company’s website periodically for new or additional terms and changes to this Agreement. Company has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Products, including but not limited to, terms, technical support options, and other product-related policies and features, at any time and upon notice by any means Company determines in its discretion to be reasonable. Your continued use of the Products after Company’s publication of any such changes shall constitute your acceptance of this Agreement as modified.
No failure to enforce any term of this Agreement shall constitute a waiver of such term in the future unless such waiver so provides by its terms.
Neither this Agreement nor any of the User’s rights or obligations hereunder may be assigned by the User in whole or in part without the prior written approval of the Company. Any other attempted assignment shall be null and void.
If any part of this Agreement is for any reason found to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected and same shall remain in effect.
This Agreement is the complete and exclusive statement of the agreement between the Company and the User with respect to its subject matter, and supersedes and voids any proposal or prior agreement, oral or written, and any other communications between the parties in relation to its subject matter. No waiver, alteration or modification of this Agreement shall be valid unless made in writing and signed by a corporate officer of the Company.
Dryrun is owned and operated by LEVR Media Inc.
LEVR Media Inc.
#202, 14032-23 Ave NW
Edmonton, AB CANADA T6R 3L6