By Dave Johnstone
2. EXCLUSIONS, LIMITATIONS, WARRANTIES
4. PAYMENT TERMS
5. OWNERSHIP OF "SOFTWARE"
6. "SOFTWARE" LICENCING TERMS
8. NOT FOR RESALE COPIES
1.1 The Conditions of Sale set out in this SLA govern the supply of Pixieware's software - the software ("Software") from PixieWare Software - the company ("PIXIE"), to the Customer ("Customer").
1.2 This SLA contains the whole of the sales and licence agreement (SLA), and represents the complete understanding between "PIXIE" and the "Customer", and that there are no other conditions, warranties or understandings affecting the arrangements between the parties other than those set out herein. This SLA replaces all prior agreements and understandings with respect to the subject matter of this SLA. This SLA may not be modified or amended except by a writing that has been signed by both parties.
1.3 The "Customers" acceptance of this SLA must be acknowledged before any "Software" transfer from "PIXIE" to the "Customer" can take place. This is a contract. Do not install or use the "Software" until you have read and accepted all of the sales and licence terms. Permission to use the "Software" by "PIXIE" is conditional upon this acceptance. Acceptance will bind you to these terms and conditions, and by installing the "Software" you accept all of the terms and conditions of this SLA.
1.4 The parties agree that this SLA shall be governed by the laws of Canada and shall be subject to the non-exclusive jurisdiction of the Ontario courts.
1.5 If any provision of this Agreement is held to be invalid, illegal or unenforceable, such provision will be severed and the remainder of the Agreement will remain in full force.
2.1 The following is without prejudice to any rights that the "Customer" may have at law, which cannot legally be excluded or restricted.
2.2 The "Software" is being delivered to the "Customer" "as is" and with a free trial period available. The "Customer" is responsible for, and used their own endeavors to select the "Software", therefore "PIXIE" cannot warrant the performance or results obtained by the "Customer" by using the "Software". If the "Software" is found to be defective or irregular under normal use, then the total liability under any provision of this SLA will be limited to the amount actually paid by the "Customer" for the "Software" (refer Paragraph 2.5).
2.3 Service to, or replacement of "Software" that is covered by a warranty under this SLA will be attended to by "PIXIE", during normal business hours (Monday to Friday, 8.30am to 5.00pm, EST (Canada), public holidays excluded).
2.4 If any of the "Software" supplied by "PIXIE" has been tampered with by the "Customer" in any way whatsoever, either maliciously or unintentionally, then all warranties will become null and void.
2.5 All warranties will have a limit on the period in which claims will be accepted (30 days in relation to PixieWare "Software"). To make a warranty claim the "Software" must be returned to "PIXIE" within 30 days of the date of the initial installation stating the reason, in writing, why the "Software" is found to be defective or irregular.
2.6 Except as to the extent provided in this SLA (paragraph 2.2), "PIXIE" will not in any circumstances be liable for any damages whatsoever (including, without limitation, damages for loss of business, business interruption, loss of business information, or other indirect or consequential loss) arising out of the use, or inability to use, or supply, or non-supply, of the "Software" purchased.
3.1 Any quotation provided by "PIXIE" will be based on, amongst other things, the costs of materials, hourly charge rates, taxes, and freight costs ruling at the date on the quotation. These costs in all cases shall be subject to the terms of clauses 3.2 and 3.3.
3.2 In the event of any increase of costs relating the formulation of the quote including those of materials, taxes, and freight, during the execution of any contract resulting from a quotation, then all such increases which are beyond the control of "PIXIE" shall be passed on to a "Customer".
3.3 Any quotation provided by "PIXIE" will expire in twenty (21) days from the date on the quotation. "PIXIE" also reserves the right to withdraw a quotation from a "Customer" at any time after it has been issued.
3.4 Payment is always within the Payment Methods Terms of "PIXIE" (Refer Section 4.0) unless otherwise stipulated at time of invoicing.
3.5 All prices are quoted exclusive of taxes unless otherwise stated.
3.6 All prices are quoted in USA Dollars.
3.7 Local taxes will not be charged on "Software" sold to "Customers" purchasing from outside of Canada.
3.8 "Software" sold over the Internet that has a free trial period available must be paid for in full before the expiry of the free trial period, when continuous use beyond 30 days is required. Failure to pay for the "Software" will cause the "Software" to become inoperable for use at the expiry of the free trial period. "PIXIE" regrets that subsequent free trials will not be granted for the same items of "Software", to the same customer, unless payment is made before the next down load is requested.
4.1.1 Cheque made payable to Pixieware Software.
4.1.3 Pre-arranged open account with Pixieware Software.
4.2 Open Account Customers
4.2.1 Trading terms are the 20th of the month following the date of an invoice for items of service.
5.1 All "Software" is subject to a Licence-to-use Agreement, and the title and copyright of the "Software" will not ever pass to the "Customer", but ownership of any Licence-to-use Agreement supplied to a "Customer" remains the property of "PIXIE" until payment is made in full by the "Customer". Payment is due within the Pricing Terms (Refer Section 3.0) as defined in this SLA.
5.2 Payment within the terms of this SLA means "in receipt of cleared funds".
5.3 Notwithstanding that the Licence-to-use does not pass to a "Customer" until payment is made in full, the "Customer" is responsible for any damage made to the "Software" from the time it leaves the premises of "PIXIE" or any third party Distributor.
6.1 This SLA applies to the "Software" in which "PIXIE" has a proprietary interest (i.e. the Pixieware "Software" range). (Note: "Software" sold by "PIXIE" on behalf of other manufactures will be subject to their own Licence Agreements and is outside of the scope of this SLA.)
6.2 Upon payment in full from a "Customer", "PIXIE" will execute a Licence-to-use Agreement which grants to the customer a limited non-exclusive, non-transferable right to use, solely by the "Customer" at the location specified, for the number of users specified, and for the duration specified. The Licence-to-use does not permit republication, distribution, assignment, sub-licence, sale, or preparation of derivative works or other such use of the licenced "Software".
6.3 Subject to the warranty conditions in this SLA, "PIXIE" warrants that all "Software" will perform substantially in accordance with the "Software" specifications. For a period identified in paragraph 2.5, "PIXIE" will at its discretion either: a) replace the defective "Software", or b) fully refund the purchase price, c) rectify the problem at its own cost, provided that in all circumstances the defect or irregularity was encountered under the specified normal conditions of use.
6.4 "PIXIE" may terminate the Licence-to-use if the "Customer" fails to comply with the terms and conditions of this SLA. Upon termination in writing, all copies of the "Software" and documentation must be destroyed or returned to "PIXIE".
6.5 Title and copyright of the "Software" remains with "PIXIE". This SLA only transfers a licence to use, and does not transfer the title, copyright, trademarks, or trade secrets to the "Customer".
6.6 The "Customer" is not licenced to rent, lease, sell, or distribute the licenced "Software" to any other party.
6.7 The "Customer" must not reverse engineer, translate, disassemble or de-compile, or otherwise attempt to discover the source code of the licensed "Software" in whole or in part, including the installer and activation programs.
6.8 The Customer is permitted to make one copy of the licenced "Software" for backup purposes only.
7.1 "PIXIE" will not use or disclose personal information obtained about the "Customer" for any reason other than to maintain sufficient records for "accounting" and account-management purposes.
8.1 "PIXIE" has the right to distribute "Software" for "Not For Resale" evaluation purposes, and may grant, at its discretion, a non-exclusive Licence-to-use, to a "Customer". The "Customer" should be a Software House or an Educational Institution. The price paid for this licence will be a discounted retail price, and the price will be set at the discretion of "PIXIE".
8.2 The "Customer" accepts one copy of the "Software" for their own use only, and also accepts a non-transferable licence for the use of the "Software" solely by the "Customer". The "Customer" is not permitted to replicate or distribute the "Software" in executable form, and furthermore agrees to be bound by the terms and conditions in this SLA Agreement, as if the "Software" was purchased at undiscounted prices.8.3 The "Customer" will refrain from, and not permit any other person or entity to reverse engineer, translate, disassemble or decompile the "Software" in whole or in part, and will refrain from permitting or encouraging any other person or entity to copy the "Software" for distribution or use.
8.4 "PIXIE" shall retain ownership of the copyright and trademarks of the "Software" and subject to the terms of this Agreement all intellectual property rights which may subsist in the "Software" and any associated documentation shall remain with "PIXIE".
9.1 This Agreement commences on the "Software" installation date and continues indefinitely unless otherwise terminated in accordance with the terms and conditions of this SLA.
9.2 Termination of a Licence-to-use by the "Customer" may be at any time, by destroying any copies of the "Software" on a hard disk, and any other media, including the documentation belonging to the "Software".
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