End User License Agreement

This End User License Agreement (EULA) applies to the purchase or use of tms-Monitor Transaction Management System (herein known as the Software), which was designed, created and distributed by Kinsella Computer Consultants Inc. (KCC).

By purchasing a User License and/or downloading and using the Software, You agree, without reservation to be bound by the terms of this EULA. If You do not agree with the terms of this EULA, you may NOT purchase a User License, download or use the Software.

If You accept the terms and conditions in this EULA on behalf of a company or other legal entity, You warrant that You have full legal authority to accept the terms and conditions in this EULA on behalf of such company or other legal entity, and to legally bind such company or other legal entity.

You may not accept this EULA if You are not of legal age to form a binding contract with KCC.

Definitions

In this EULA the expressions below shall have the meaning assigned to them in this clause, unless the context requires otherwise.

• You:  the final and ultimate end user of the Software or the authorized representative of a company or other legal entity that will be the final and ultimate user of the Software, and the company or other legal entity that will be the final and ultimate end user of the Software, if applicable, that has been granted a valid license by KCC to Use the Software.
• The Software:  software, application and/or all of the contents of the files and/or other media, including software files and all code within either the whole or any part of the code, software setup and configuration files, and the database architecture licensed for Use to You by KCC, including any Updates or software version Upgrades.
• Documentation:  the detailed information about the Software, its features and the system requirements as made available on the website tsm-Monitor.ca, as amended from time to time by KCC.
• Full Version:  the license for the Software for the term specified on the webpage where You purchase the license, or in any applicable agreement concerning the purchase of the license (as stand-alone product or as part of a subscription) to Use the Software; KCC does not currently provide a Trial Version.
• User License:  an unique code provided by KCC, which enables You to activate the Software by entering the code into the Software and to subsequently use the Software during the applicable license term.
• Updates:  any modified code and updates of, and additions to a full released version of the Software (excluding upgrades of the Software); Updated versions contain bug fixes and code improvements to the currently released version of the Software.
• Upgrades:  any newly released, full version of the Software, containing significant changes in code, and functionality as compared to the latest full version; Upgrades may from time-to-time become available to You for purchase.
• Use:  the access, download, install, copy or benefit derived from using the Software in accordance with the documentation displayed on the website of the software (www.tms-Monitor.ca); This license specifically prohibits You, the User, from changing, distributing, selling, or copying any files, code, media or anything contained in the Software for the purpose of distribution or sharing the Software.

General

This EULA applies to any licenses granted to You by KCC for the use of the Software. By purchasing a User License for the Software and/or downloading and using the Software, You enter into this EULA with KCC.

This EULA may be modified from time to time. KCC will notify you of such modifications on its website or otherwise, e.g. by using the email address used for the provision of the User License. Any modifications to this EULA shall only apply upon acceptance by You.

License

KCC grants You a non-exclusive, non-transferable, limited, revocable license to Use the Software in accordance with this EULA. KCC reserves all rights not expressly granted to You.

KCC is and remains the sole owner of any or all material, files, code, or intellectual property rights with respect to the Software and its website. You shall not acquire any ownership to the Software as result of Your purchase of the User License or Your Use of the Software.

Permitted use and restrictions

In order to be able to install the Software and receive Updates and upgrades, Your computer shall have access to the Internet and shall meet the system requirements described on the website: https://www.tms-Monitor.ca.

You may install and Use the Software on one server only, unless You have purchased more than one license to the Software. In the event You have purchased more than one Full version, the number of computers or servers You may Use the Software on shall not exceed the number of Full version licenses purchased. If You exceed the limit, this license agreement is voided and KCC may block the User License.

You shall Use the Software in accordance with applicable laws and shall not:

• rent, lease, lend, sell, redistribute, sublicense or otherwise commercially exploit the User License and/or the Software or any portion, file, code or intellectual property contained in or associated with the Software;
• assign the User License, or the Software without prior written approval of KCC;
• Use the Software for any unlawful or illegal activity, or to facilitate an unlawful or illegal act;
• delete or alter any disclaimers, warnings, copyright or other proprietary notices accompanying or contained in the Software; or
• copy (except as otherwise provided in this EULA), adapt, translate, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of the Software and the User License or any portion thereof.

KCC may modify the Software at any time at its sole discretion and without notice to You, for example to provide Updates or Upgrades.

Maintenance and support

KCC will notify You of any available Updates and upgrades.

You will be entitled to receive Updates free of charge for the duration of the License period specified on the software plans web page on the date of purchase of the User License for the Software.

In order to receive Updates after this period, You will need to renew your User License for the Software. You may need to pay an additional fee to download an upgraded version.

You can obtain available Updates and Upgraded full versions from KCC by contacting KCC at the contact details provided on the software website.

Any maintenance and support provided by KCC, including the provision of Updates and Upgrades, will be provided in an adequate way on an “as is” basis without any warranty, as soon as reasonably practicable, subject to availability of personnel.

Privacy and Use of Data

KCC and its subsidiaries may periodically collect and use technical and related data concerning the Software You have licensed, including about the version number of the Software You have installed and about the system You have installed the Software on. KCC will use such data to facilitate maintenance and support with respect to the Software, to improve its products and to provide further services or technologies to You

KCC may process personal data with respect to You, if and to the extent necessary to provide the User License, to provide maintenance and support to You with respect to the Software and to comply with its obligations under this EULA. To the extent KCC will process personal data, it will comply with its obligations under applicable data protection law.

KCC will never disclose, sell or share your data with any person, organization, or entity other than KCC and its subsidiaries.

Disclaimer of Warranties

You acknowledge that You use the Software at Your own risk and the entire risk as to satisfactory quality, performance and accuracy is with You.

The Software and accompanying documentation are provided on an “as is” and “as available” basis without warranty - express or implied - of any kind, and KCC specifically disclaims the warranty of fitness for a particular purpose.

No oral or written advice given by KCC, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of this warranty and You may not rely upon such information or advice.

You expressly acknowledge that You assume all risk and responsibility for selecting to use the Software, for the installation, use and results obtained from use of the Software. There is no warranty by KCC or any other party that the software will meet your requirements or that the operation of the Software will be uninterruptible or error free.

Liability Limitation

To the fullest extent of applicable law, KCC shall not be liable for special, incidental, or consequential damages resulting from possession, use or malfunction of the Software, included but not limited to damages to property, loss of goodwill, computer failure or malfunction, and, to the extent permitted by law, damages for personal injuries, property damage, or lost profits, or punitive from any causes of action arising out of or related to the agreement.

The liability of KCC and any third party that has been involved in the creation, production, or delivery of the Software for all damages arising out of or in any way relating to the Software, the User License, the Software and/or this EULA shall in no event exceed the total amount paid by You to KCC for the User License.

KCC and any third party that has been involved in the creation, production, or delivery of the Software are under no circumstances liable for consequential or indirect damages (including damage for loss of profit, business interruption, loss of data, and the like arising out of the use or inability to use the Software).

The limitations of liability referred to in this Liability Disclaimer clause shall not apply in the event that damages arise from the intent, willful misconduct or gross negligence of KCC or the management of KCC.

Termination and Ongoing Effectiveness

This EULA is effective from the time You purchase a User License. You may terminate the agreement at any time by permanently deleting, destroying the Software, all files, databases, backup copies and files, and all related materials provided by KCC, at your own expense.

KCC is entitled to terminate the Software by blocking the User License during the license term with immediate effect and without prior notice in the event You fail to comply with the terms in this EULA, in the event You fail to pay Your fee for the User License within the applicable payment term, or in the event KCC is required to do so by law or an order of an applicable court.

Upon termination of the Software, You MUST cease all use of the Software. You acknowledge that the provisions of this EULA, which by their nature are intended to survive termination, will remain in effect after termination of this EULA.

Governing law and disputes

This EULA shall be governed by and construed in accordance with the laws of Ontario, Canada, excluding its conflicts of law rules.

Any dispute between KCC and You shall exclusively be submitted to the competent court in Kingston, Ontario, Canada.

This EULA was enacted on May 1, 2020.

Kinsella Computer Consultants Inc.
399 Quarry Pond Crt.
Kingston, ON K7K 7L3
info@tms-Monitor.ca