PLANIMETRON ONLINE SERVICES AGREEMENT
IF PLANIMETRON ACCEPTS YOUR REQUEST TO USE THE PLANIMETRON ONLINE SERVICES
(THE “SERVICES”), THE PROVISION OF THE SERVICES TO YOU (HEREIN “YOU” OR THE
“LICENSEE”) WILL BE SUBJECT TO THE TERMS AND CONDITION SET OUT BELOW (THE
“AGREEMENT”) WHICH SHALL CONSTITUTE A LEGAL AND BINDING AGREEMENT
BETWEEN YOU AND PLANIMETRON INC, AN ONTARIO COMPANY (“PLANIMETRON”).
TERMS & CONDITIONS
1. GRANT OF LICENSE. In consideration of timely payments by you pursuant to Section 2of this
Agreement (Subscription Fees), Planimetron grants to you a single, non-exclusive license to use the
Services, subject to the provisions hereto. You, the Licensee, are licensed solely to use the Services for
your own business purposes. You shall not use the Services to process data for any other person or entity.
No other use is intended or implied. This Agreement is the Licensee’s proof of license to use the Services
in accordance with these terms and should be retained by you and reviewed from time to time.
This Agreement does not grant you any rights to patents, copyrights, trade secrets, trade names,
trademarks (whether registered or unregistered), or any other rights, franchises, or licenses in respect of
the Services. Title to and ownership of the Services, any reproductions and any documentation supplied
by Planimetron shall remain exclusively with Planimetron and its suppliers. You will not adapt or use
any trademark or trade name which is likely to be similar to or confusing with that of Planimetron or any
of its suppliers or take any other action which impairs or reduces the trademark right of Planimetron or its
2. SUBSCRIPTION FEES. You agree to pay subscription fees, in advance, until such time as this
Agreement is terminated pursuant to Section 5 of this Agreement. Such fees shall be as identified on
Planimetron’s website at the time you submitted your request to use the Services or, at Planimetron’s sole
discretion, as notified to you in accordance with Section 15 of this Agreement (Notices) with at least sixty
(60) days advance notice.
3. TAXES. You agree to pay all applicable sales, use, transfer or other taxes and all duties, whether
international, national, state or local, however designated, which are levied or imposed by reason of the
transaction(s) contemplated hereby, excluding, however, income taxes on net profits which may be levied
against Planimetron. You shall reimburse Planimetron for the amount of any such taxes or duties paid or
accrued directly by Planimetron as a result of this transaction.
4. TERM. This agreement shall remain in effect until terminated in accordance with Section 5 of this Agreement (Termination).
5. TERMINATION. Either party may terminate this Agreement upon sixty (60) days’ notice to the other
party in accordance with Section 15 of this Agreement (Notices).
In addition to various other express rights of Planimetron to terminate this Agreement set forth herein,
Planimetron shall also have the right to terminate this Agreement immediately and cancel any unfilled
portion of it by written notice to you (i) if Licensee becomes bankrupt or insolvent or enters into any
arrangement or composition with its creditors or if a receiver is appointed to direct the business of
Licensee; or (ii) if Licensee sells or assigns its rights, duties or obligations under this Agreement to any
person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock,
operation of law or otherwise; or (iii) upon Licensee's breach of the License or confidentiality and
nondisclosure provisions contained herein; or (iv) upon a violation of Planimetron's proprietary rights
In the event of termination of this Agreement for any reason, no fees or other monies shall be returned or
owed to you by Planimetron. The termination of this Agreement shall automatically terminate and
extinguish the License.
6. SERVICE UPDATES. You acknowledge that, from time to time, Planimetron may, at its sole
discretion, upgrade or replace components of the Services (Service Updates). Such Service Updates shall
be considered as integral to the Services and shall make have no impact on the terms and conditions of
7. PROPRIETARY RIGHTS. You acknowledge that the Services are proprietary to Planimetron and its
suppliers. You may not alter, modify, reverse engineer, decrypt, decompile, or disassemble the Services.
You agree to hold details of the Services in confidence, disclosing those details only to authorized
employees having a need to use the Services as permitted by this Agreement and to take all reasonable
precautions to prevent disclosure to other parties.
8. ASSIGNMENT OF RIGHTS. Planimetron may assign this Agreement, providing prompt
notification to you in writing. You may assign your rights, title and interest to Services under this
Agreement on a permanent basis to an Assignee, provided you provide written notice to Planimetron, and
transfer this Agreement, all copies of the Services and all accompanying written materials, and such
Assignee agrees to be bound by all the terms and conditions of this Agreement.
9. INDEMNIFICATION OF LICENSEE. Planimetron will, at its own expense, indemnify and hold
you and its officers and employees harmless from and against any and all claims, actions, liabilities,
losses, damages, judgments, grants, costs and expenses (including attorneys' fees) to the extent that such
action is based on a claim that any aspect of the Services used within the scope of this Agreement or that
the License infringes any United States or Canadian patents, copyrights, licenses, trade secrets or other
proprietary rights, provided you promptly notify Planimetron in writing of any such claim and, provided
further that Planimetron shall have the exclusive right to control such defense. In no event shall you settle
any such claim, lawsuit or proceeding without Planimetron's prior written approval. The foregoing states
the entire liability of Planimetron with respect to infringement of any copyrights, patents, licenses, trade
secrets or other proprietary rights by the Services or any portion thereof, and you hereby expressly waives
any other such liabilities.
10. INDEMNIFICATION OF PLANIMETRON. You will, at your own expense, indemnify, promptly
reimburse Planimetron and its officers and directors for the defense of, and hold Planimetron and its
officers and employees harmless from and against any and all claims, actions, liabilities, losses, damages,
judgments, grants, costs and expenses (including attorneys' fees) including but not limited to injury or
death to persons, or damage to property suffered by Planimetron, resulting from or pertaining to your use
or operation of the Services, whether or not occasioned by the negligence or misconduct of you or third
parties that you have allowed to use the Services.
11. WARRANTY. Planimetron warrants that the Services shall substantially conform to the
accompanying on-line documentation, provided that non-conformities in the Services as compared with
the documentation are not caused by products or services from Planimetron's suppliers or any other third
party. Planimetron's sole obligation or liability under this Warranty shall be to use reasonable efforts to
correct the Services, in a reasonable time, to perform in accordance with the documentation, upon written
notice of its failure to so perform from you. In the event Planimetron fails to remedy material defects in
the Services under this Warranty, Licensee's sole remedy and Planimetron's sole liability shall be to
receive a refund of any License Fee paid hereunder for the portion of the Services, if any, which does not
conform to the documentation from the date you notified Planimetron of the non-conformity.
12. LIMITED WARRANTY. The warranty set forth in this Agreement is a limited warranty and it is
the only warranty made by Planimetron. Planimetron expressly disclaims, and you hereby expressly
waive, all other warranties, express or implied, including, without limitation, warranties of
merchantability and fitness for a particular purpose. Planimetron does not warrant and specifically
disclaims any representations that the Services will meet your requirements or that the operation of the
Services and/or its use will be uninterrupted or error-free, or that defects in the Services, if any, will be
corrected. Planimetron's limited warranty is in lieu of all liabilities or obligations of Planimetron for
damages arising out of or in connection with the delivery of the Services or related services. Except for
the above limited warranty, the entire risk as to the quality and performance of the Services is with you.
13. LIMITATION OF LIABILITY. PLANIMETRON SHALL HAVE NO LIABILITY WITH
RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES
EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT,
THE AGGREGATE LIABILITY OF PLANIMETRON FOR ANY REASON AND UPON ANY CAUSE
OF ACTION OR CLAIM, INCLUDING, WITHOUT LIMITATION, PLANIMETRON'S OBLIGATION
TO INDEMNIFY AND HOLD HARMLESS YOU UNDER THIS AGREEMENT (INCLUDING UNDER
SECTION 9 OF THIS AGREEMMENT (INDEMNIFICATION OF LICENSEE), SHALL BE LIMITED
TO THE AMOUNT OF SUBSCRIPTION FEES PAID TO PLANIMETRON BY YOU HEREUNDER
FOR THE SPECIFIC PORTION OF SOFTWARE GIVING RISE TO SUCH CAUSE OF ACTION OR
CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE
AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF
WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND
14. CONFIDENTIALITY OF INFORMATION. Each party to this Agreement shall regard and
preserve as confidential all Confidential Information disclosed by the other party in the course of
executing this Agreement. Such Confidential Information shall include the Services and any or all
information related to the business of the disclosing party, its partners and affiliated companies that may
be obtained from any source, which is not public knowledge.
Each party agrees not to disclose the Confidential Information of the other party to any individual or
business entity, including but not restricted to the competitors of the disclosing parties. Each party will
protect the Confidential Information of the other party by using the same degree of care, but not less than
a reasonable degree of care, to prevent the unauthorized use, dissemination, or publication of the
Confidential Information as it uses to protect its own information of a like nature.
Neither party will use the Confidential Information of the other party to develop or enhance its own products and services.
15. NOTICES. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in
writing and shall be deemed given (i) if by hand delivery, upon receipt hereof; (ii) if mailed, ten (10) days
after deposit in the U.S./Canadian mails, postage prepaid, certified mail, return receipt requested. All
notices to Planimetron shall be addressed to Planimetron Inc., Attn. General Manager, 280 Johnson St.,
Ontario, K7L 1Y4, Canada. Notices to you shall be addressed to the Subscriber Address provided by you
at the time of request for the Services.
16. FORCE MAJEURE. Neither party shall be liable to the other for any delay or failure to perform any
of the services or obligations set forth in this Agreement due to cause beyond its reasonable control.
Performance times shall be considered extended for a period of time equivalent to the time lost
17. SURVIVAL. All provisions of this Agreement relating to proprietary rights, confidentiality, nondisclosure
or to payment of fees by Licensee shall survive the termination of this Agreement.
18. NO WAIVER. The waiver or failure of either party to exercise any right in any respect provided for
herein shall not be deemed a waiver of any further right hereunder.
19. ENFORCEABILITY. If for any reason a court of competent jurisdiction finds any provision of this
Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum
extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement shall
continue in full force and effect.
20. REMEDIES. Unless otherwise specified herein, the rights and remedies of both Parties set forth in
this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law
or in equity.
21. HEADINGS. The headings of the sections of this Agreement are inserted for convenience only and
shall not constitute a part hereof or affect in any way the meaning or interpretation of this Agreement.
22. NO THIRD PARTY BENEFICIARIES. The Parties agree that this Agreement is for the benefit of
the Parties hereto and is not intended to confer any rights or benefits on any third party, and that there are
no third party beneficiaries as to this Agreement or any part or specific provision of this Agreement.
23. LIMITATION OF ACTIONS. No action, regardless of form, arising out of or relating to this
Agreement or the subject matter hereof may be brought by either party more than one (1) year after the
cause of action has initially arisen, with the exception of either party's breach of its confidentiality or nondisclosure
obligations herein or Licensee's violation of Planimetron's proprietary rights in the Software or
any other software owned or licensed by Planimetron.
24. ENTIRE AGREEMENT. This is the entire agreement between you and Planimetron, which
supersedes any prior agreement, whether written, or oral, relating to the subject matter of this Agreement.
25. GOVERNING LAW. This Agreement and performance hereunder shall be governed by the laws of
the Province of Ontario, without giving effect to the principles of conflict of laws of such state or
26. AUTHORIZATION TO COMMIT. By requesting the Services, the person applying for the
Services acknowledges that he or she has the authority to enter into this agreement on behalf of the
Licensee identified in the Subscriber Application.