SERVICES AND LICENSE AGREEMENT
This agreement (the "Agreement") contains the terms and conditions governing access to and use of ParagonERP software and services made available to you by ParagonERP Systems Inc. ("ParagonERP") and identified on the Customer Form (as defined below) as amended from time to time. The ParagonERP software and services provided pursuant to this Agreement are provided to you by using internet access to remote servers and, in some cases, though software downloaded onto your Devices (as defined below).
1. DEFINITIONS
"Authorized User" means your employees, contractors, consultants or agents who are authorized by you to use the ParagonERP Solution.
"Business Rules" means a set of rules that define or constrain one or more aspects of your business, describing the operations, definitions and constraints that apply to your business, which are reasonably capable of being implemented by the ParagonERP Solution.
"Cloud Network" means the cloud based network operated by ParagonERP for the purpose of hosting the Customer Data and operating the Paragon Solution, in conjunction or not with other service providers.
"Confidential Information" shall mean all information, whether provided in writing, verbally, by electronic or other data transmission, or in any other form or media whatsoever or obtained through on-site visits and whether provided before or after the date of this Agreement, including, without limitation, trade secrets, marketing/sales information, product information, technical information, customer information, supplier information, information about trade techniques/processes/procedures, financial information, business information and plans.
"Customer Data" means any data and information that you enter into the ParagonERP Solution, including any data and information you share with others and content you have generated or obtained from other sources.
"Customer Form" means the webpage on the ParagonERP.com website identifying you, your Authorized Users, your payment information, any Software, Materials and services you have ordered from ParagonERP and ParagonERP has agreed to provide, pricing, any third party add-ons you have accepted and other information required by ParagonERP from time to time for access to and use of the ParagonERP Solution.
"Customer Portal" means the internet access portal operated by ParagonERP for your access to the ParagonERP Solution, at the internet address provided by ParagonERP.
"Device" means any computer, phone, smart phone, tablet or other device used to access or use the ParagonERP Solution.
"Materials" mean any materials produced by or with ParagonERP pursuant to this Agreement.
"ParagonERP Solution" means the Software, Materials and services provided to you pursuant to this Agreement and identified on the Customer Form as amended from time to time.
"Software" means the object software, including any Updates, made available by ParagonERP as part of the ParagonERP Solution and includes both software owned by and licensed to ParagonERP.
"Subscription Fees" mean the fees charged by ParagonERP for access to and use of the ParagonERP Solution, as described on the Customer Form, as amended from time to time, denominated in United States dollars unless otherwise noted on the Customer Form.
"Updates" means any improvements, updates, upgrades, new releases, versions and updated content in respect of the Software.
"you" or "your" refers to the person, whether an individual or other legal entity, whose id appears on the Customer Form as the customer and does not include related persons, such as the individuals or entities that are shareholders, directors or officers of a corporation, its parent, subsidiaries or affiliates; partners of a partnership; or members of a trade association, joint venture or other organization.
2. AGREEMENT
2.1 This Agreement includes the Customer Form and any appendices to this Agreement to which you and ParagonERP may agree in writing from time to time. At its sole discretion and at any time, ParagonERP may withdraw the provision of service with respect to any third party add-on and shall adjust the Customer Form accordingly.
2.2 Only Authorized Users listed by you on the "Authorized Users" webpage of the Customer Portal, as amended from time to time, may access and use the ParagonERP Solution. You shall be responsible for the acts and omissions of your Authorized Users as if they were your acts and omissions.
2.3 Authorized User access credentials issued to access or utilize the ParagonERP Solution cannot be shared or used by more than one individual at a time, provided however, an Authorized User's access rights may be transferred from one individual to another if the original Authorized User is removed from the ParagonERP Solution, no longer requires, or is no longer permitted access to or use of the ParagonERP Solution.
2.4 You are responsible for securely managing your password(s) for access to the ParagonERP Solution and to contact ParagonERP if you become aware of any unauthorized access to your account.
2.5 ParagonERP reserves the right, at its sole discretion, to change, modify, add or remove portions of this Agreement at any time on notice provided to you and your continued use of any part of the ParagonERP Solution at any point at least 30 days after the notice date shall constitute your acceptance of the amendment of this Agreement. At ParagonERP's sole discretion, ParagonERP may also require that you accept the amendment of this Agreement in order to continue using the ParagonERP Solution. If you decline to accept the amendment of this Agreement, ParagonERP may at its sole discretion terminate your use of all or a portion of the ParagonERP Solution.
3. ParagonERP SOLUTION LICENSE GRANT
3.1 As long as you meet any applicable payment obligations in full and otherwise comply with this Agreement, ParagonERP grants you the right to use and access the ParagonERP Solution only for your own internal business purposes, and not to provide services to others, for the Term of this Agreement. You are only granted certain limited rights to install and use the Software, and ParagonERP reserves all other rights in the Software not granted to you in writing herein. This Agreement is entered into only for business purposes and not for personal purposes.
3.2 As between you and ParagonERP, ParagonERP owns all right, title and interest in any and all copyrights, trademark rights, patent rights and other intellectual property or other rights in the ParagonERP Solution and any improvements, design contributions or derivative works related to the ParagonERP Solution.
3.3 IF YOU USE THE ParagonERP SOLUTION FOR PURPOSES OR IN A MANNER NOT EXPRESSLY AUTHORIZED BY THIS AGREEMENT, YOU ARE COMMITTING A MATERIAL BREACH OF THIS AGREEMENT AND MAY VIOLATE APPLICABLE COPYRIGHT LAWS, AND ParagonERP MAY TERMINATE THIS AGREEMENT IMMEDIATELY FOLLOWING YOUR BREACH.
3.4 ParagonERP may, from time to time during the Term and, without your separate permission or consent, deploy Updates for the ParagonERP Solution, and you may not be able to use the applicable Software or Device (or certain functions of the Device) until the Update is fully installed. Updates will be deemed a part of the ParagonERP Solution for all purposes under this Agreement. Updates may include both additions to and removals of particular functionality offered by the ParagonERP Solution or may replace it entirely, and the content and functionality of such Updates is at the sole discretion of ParagonERP. ParagonERP will determine when and if Updates are appropriate and has no obligation to make any Updates available to you.
4. TERM, RENEWAL AND TERMINATION
4.1 This Agreement shall be effective for an initial term (the "Initial Term") commencing on the date hereof (the "Effective Date") and ending one month after the Effective Date (the "End Date"), provided that neither party terminates this Agreement as otherwise provided herein prior to the End Date.
4.2 The term of this Agreement shall be extended automatically for additional consecutive one-month periods (each a "Renewal Term" and collectively with the Initial Term, the "Term") commencing on the End Date and each subsequent monthly anniversary of the End Date, provided that (a) neither party has terminated this Agreement as otherwise provided herein; and (b) as of two days prior to the End Date or the end of the then-current Renewal Term, as the case may be, neither party has provided written notice to the other party of such party's intent not to renew this Agreement.
4.3 ParagonERP may immediately, in its sole discretion and without notice, terminate the use of the ParagonERP Solution if you fail to comply with this Agreement (including with respect to payment). In addition, ParagonERP may terminate this Agreement for convenience by providing 21 days' notice of termination to you.
4.4 Upon expiration or termination of this Agreement
4.4.1 you must immediately stop using the ParagonERP Solution and delete or destroy all copies of the Software and Materials; and
4.4.2 all outstanding amounts to ParagonERP become immediately payable and due.
4.5 For 90 days after the Term, the Customer Data shall be available free of charge for download by Customer in ASCII delimited form using Customer’s self-service extraction tools compatible with the ParagonERP’s Software Solution. ParagonERP shall have no obligation to maintain or provide access to any Customer Data 90 days after the Term. At your request after the Term, ParagonERP shall, unless and to the extent applicable laws require further retention of such data, within a reasonable time period delete or otherwise render inaccessible all Customer Data, to the extent possible based on the then-current technology and not including the deletion or rendering inaccessible from backup and archiving systems. When using the Solution as part of a free trial, Customer Data is not available for download when the free trial period ends.
4.6 Any expiration or termination of this Agreement shall not affect ParagonERP's rights to any payments due to it.
4.7 You agree that the Software may contain a "time out" feature that automatically will render the Software inoperative at the end of the Term.
5. PAYMENT
5.1 You shall pay the Subscription Fees to ParagonERP, or as directed by ParagonERP, on the following terms:
5.1.1 Subscription Fees listed as monthly on the Customer Form, plus all applicable taxes, will be billed to you electronically on a monthly basis, one month in advance. The first monthly Subscription Fees must be paid simultaneously upon acceptance of this Agreement.
5.1.2 Subscription Fees listed as one-time on the Customer Form, plus all applicable taxes, must be paid simultaneously upon acceptance of this Agreement.
5.1.3 You must pay with one of the following:
(a) a valid credit card acceptable to ParagonERP inputted by you on the Customer Form; or
(b) by another payment option accepted by ParagonERP in writing.
5.1.4 If the payment information and other information you provide on the Customer Form, as amended from time to time, is not accurate, current and complete, and you do not notify us promptly when such information changes, in addition to the termination rights described above, we have the right to immediately suspend or terminate your access to and use of the ParagonERP Solution.
5.1.5 If you do not notify us of updates to your payment method (for example credit card expiration date), to avoid interruption of your service, we may participate in programs supported by your card provider (for example updater services, recurring billing programs) to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
5.1.6 The Subscription Fee for the ParagonERP Solution does not include any taxes or duties whatsoever that may be applicable to any transaction under this Agreement. ParagonERP may bill to you and you shall pay all applicable taxes and duties on the same terms as the Subscription Fee, based on the address you provide on the Customer Form. You shall indemnify ParagonERP with respect to any taxes and duties related to any transaction related to this Agreement.
6. DATA FAIR USAGE
6.1 As part of your Customer Data, you can store attachments (for example, images, photos and documents), within ParagonERP. ParagonERP has a Data Fair Usage Policy to ensure that all customers get an optimal level of service. ParagonERP provides 1GB of storage free of charge for customers using ParagonERP. ParagonERP monitors a customer's use of storage and will determine and charge an additional fee as part of the Subscription Fee in the case that it deems it to be necessary.
7. CUSTOMER DATA
7.1 Your Customer Data belongs to you, but ParagonERP can use it to provide services, and develop new software as long as the Customer Data is aggregated or anonymized. You continue to hold any intellectual property rights you already hold in the Customer Data. On an aggregated or anonymous basis, you grant to ParagonERP a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of the Customer Data. You represent and warrant that (a) you have sufficient rights to grant ParagonERP the rights described in this Section, all without any obligation by ParagonERP to obtain consent of any third party and without creating any obligation or liability of ParagonERP; (b) the Customer Data is accurate; (c) the Customer Data does not will not infringe any intellectual property or violate any other right of any '; and (d) the Customer Data will not violate this Agreement or cause injury or harm to any person.
7.2 You are responsible for entering your Customer Data into and making Business Rules with the ParagonERP Solution and you shall be responsible for the content of the Customer Data and Business Rules supplied by you. You agree that you, and those persons acting on your behalf, have collected and maintain and handle all Customer Data in compliance with all applicable data privacy and protection laws, rules and regulations. Further, you are solely responsible for determining the suitability of the ParagonERP Solution for your business and complying with any regulations, laws, or conventions applicable to the Customer Data and your use of the ParagonERP Solution.
7.3 You are responsible for the Customer Data and ParagonERP is not responsible for the maintenance or security of such Customer Data, or any deletion, alteration to or disclosure of such Customer Data.
7.4 If you engage in processing personal data of EU residents, you have the responsibility that the processing of that data is compliant with the relevant EU data protection laws and the General Data Protection Regulation ("GDPR"). When you purchase ParagonERP Solution, you will be hosted on servers based on the address entered by you on the Customer Form. If you have an address within the EU, your ParagonERP Solution is hosted on servers located within the EU. You can request to be located on servers in the EU if you are not using an EU address by contacting support@ParagonERP.com. ParagonERP uses hosting service subprocessors to provide you the services of the ParagonERP Solution which are Microsoft Azure hosted by Microsoft and Google Cloud Platform.
7.5 You agree not to use, nor permit any third party to use, the ParagonERP Solution to upload, post, distribute, link to, publish, reproduce, engage in or transmit:
7.5.1 Electronic messages without the consent of the recipient;
7.5.2 Illegal, fraudulent defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage "flaming" others, or criminal or civil liability under any law;
7.5.3 Customer Data that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual's privacy;
7.5.4 Except as permitted by ParagonERP in writing, investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;
7.5.5 Virus, trojan horse, worm or other disruptive or harmful software or data; and
7.5.6 Any information, software or Customer Data which is not legally yours and without permission from the copyright owner or intellectual property rights owner.
7.6 You agree that ParagonERP may use your feedback, suggestions, or ideas in any way, including in future modifications of the ParagonERP Solution, other products or services, advertising or marketing materials. You grant ParagonERP a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to ParagonERP in any manner. You also grant ParagonERP permission to share with or publish to third parties summary results relating to your use of the ParagonERP Solution.
7.7 ParagonERP may, but has no obligation to, monitor content on the ParagonERP Solution. ParagonERP may disclose any information necessary to satisfy its legal obligations, protect ParagonERP or its customers, or operate the ParagonERP Solution properly. ParagonERP, in its sole discretion, may refuse to post, remove, or refuse to remove, any content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
7.8 You may export from the ParagonERP Solution to other systems your Customer Data during the Term using self-service extraction tools compatible with the ParagonERP Solution. The form, frequency and timing of the export of such Customer Data shall be in the sole discretion of ParagonERP. ParagonERP has no responsibility to export Customer Data and you are solely responsible for any export of such Customer Data. Notwithstanding the forgoing, during the Term, ParagonERP shall provide relevant data from the ParagonERP Solution to any third party add-ons identified on the Customer Form.
7.9 You can view the ParagonERP Privacy Policy and ParagonERP Security Policy on the webpage on ParagonERP.com and you hereby consent to the terms of that ParagonERP Privacy Policy and ParagonERP Security Policy. You shall cause any individuals with privacy or data protection rights with respect to Customer Data to also consent to the terms of the ParagonERP Privacy Policy, including for greater certainty that ParagonERP may combine the Customer Data with that of other users of the ParagonERP Solution and other services provided by ParagonERP.
8. CONFIDENTIALITY AND NONDISCLOSURE; PUBLICITY
8.1 You acknowledge that during the term of this Agreement you may obtain Confidential Information related to ParagonERP. ParagonERP owns and intends to maintain its ownership of all such Confidential Information.
8.2 You shall at all times maintain in the strictest confidence and trust all such Confidential Information, and shall not use such Confidential Information other than in the course of its duties and as expressly authorized by ParagonERP under this Agreement, nor disclose any such Confidential Information to any party without ParagonERP's prior written consent.
8.3 You shall disclose such Confidential Information only to your employees who have a need to know such information in connection with the performance of your duties under this Agreement; provided, that you shall appropriately bind each of its employees to whom such disclosure is made, to hold the Confidential Information in strict confidence and not to disclose such information to any person other than as is necessary in the course of its employment by you. You will indemnify ParagonERP for all damages suffered by ParagonERP in the event of wrongful disclosure of such Confidential Information.
8.4 The obligations of confidentiality set forth herein shall not apply to information which; (i) was rightfully in possession of or known to you without any obligation of confidentiality prior to receiving it from ParagonERP; (ii) is, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained by you from a source other than ParagonERP without any obligation of confidentiality; and (iv) is developed by or for you without use of the Confidential Information and such independent development can be shown by documentary evidence. Further, you may only disclose Confidential Information pursuant to a valid order issued by a court or government agency, provided that you provide ParagonERP (a) prior written notice of such obligation; and (b) the opportunity to oppose such disclosure or obtain a protective order.
8.5 You acknowledge that any breach of any provision of this Section may cause immediate and irreparable injury to ParagonERP, and in the event of such breach or threatened breach, ParagonERP shall be entitled to injunctive relief and any and all other remedies available at law or in equity.
9. ParagonERP SELLING PARTNERS
9.1 It is recommended that you use a Value Added Partner listed on the partner locating tool on the ParagonERP website (a "Value Added Partner") to provide professional services, including but not limited to, consulting, implementation, conversion, training, customer service support and customization relating to the Software. ParagonERP does not provide customer service to support the Software, with the exception of defect reporting, or provide for the use of the services of a Value Added Partner.
9.2 You agree that the Value Added Partner through which you have arranged for the procurement of the Software or from which you receive any services related to the Software is not an agent or partner of ParagonERP. The Value Added Partner is an independent company, person, or entity with no authority to bind ParagonERP or to make representations or warranties on behalf of ParagonERP. ParagonERP makes no representations or warranties as to such authorized distributor or reseller, or any other third party, related to the performance of the products or services of such entities, and fully disclaims any such warranties in accordance with this Section.
9.3 You agree that ParagonERP shall have no liability for the acts or omissions of the Value Added Partner.
9.4 You agree that ParagonERP is entitled to rely on written information from Value Added Partner in making any determination as to suspension of the ParagonERP Solution or termination of the Agreement and ParagonERP shall have no liability to you for any actions thereunder based on ParagonERP's reasonable belief in the accuracy or reliability of such information.
9.5 You shall pay Value Added Partner (or successors in interest or assignee(s) of Value Added Partner) fees and any applicable taxes for any services in respect of the ParagonERP Solution that are ordered from Value Added Partner, pursuant to the agreement between Value Added Partner and yourself.
10. ADDITIONAL TERMS
10.1 You agree that ParagonERP is not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice and ParagonERP shall have no liability with respect to your use of the ParagonERP Solution for any purpose.
10.2 You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and that you are not a person who is either barred or otherwise legally prohibited from receiving or using the Software under the laws of the country in which you are resident or from which you access or use the Software.
10.3 You may be offered other services, products, or promotions by ParagonERP ("ParagonERP Services") and you consent to receiving such offers, including by electronic message. Additional terms and conditions and fees apply to ParagonERP Services.
10.4 The use of the Software and Cloud Network requires an active and stable connection to the internet in order to function. It is your responsibility and not the responsibility of ParagonERP to ensure that you have at all times an active and stable internet connection. Also, in order to access and use the ParagonERP Solution, you may be required to have certain hardware and software, which are your sole responsibility.
10.5 When using the ParagonERP Solution, you shall not, and shall ensure that your Authorized Users do not, directly or indirectly, (a) copy, translate, disassemble, decompile, reverse-engineer or otherwise modify any parts of the ParagonERP Solution; (b) transmit any content, data or information that is unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous invasive of another's privacy right or right of publicity, or racially or ethnically objectionable; (c) infringe the intellectual property rights of any entity or person; (d) interfere with or disrupt the ParagonERP Solution, the Cloud Network or ParagonERP systems used to host the ParagonERP Solution, or other equipment or networks connected to the ParagonERP Solution; (e) use the ParagonERP Solution in the operation of a service bureau, outsourcing or time-sharing service; (f) circumvent or disclose the user authentication or security of the ParagonERP Solution or any host, network, or account related thereto; (g) access or use the ParagonERP Solution for the purpose of building a competitive product or service or copying its features or user interface; (h) permit access to the ParagonERP Solution by a competitor of ParagonERP; or (i) make any use of the ParagonERP Solution that violates any applicable local, provincial, federal, state, international or foreign law or regulation. In addition to the limitations established by this Section, you will not (i) copy the Software or Materials, or (ii) remove any copyright, trademark or other proprietary notices from the ParagonERP Solution.
10.6 You shall maintain commercially reasonable security standards for your use of the ParagonERP Solution.
11. DISCLAIMER OF WARRANTIES
11.1 THE ParagonERP SOLUTION IS PROVIDED "AS IS", to the maximum extent permitted by law without warranty of any kind. ParagonERP shall not be liable for any damages relating to your use of the ParagonERP Solution.
11.2 YOUR USE OF THE ParagonERP SOLUTION IS ENTIRELY AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ParagonERP, AND ITS THIRD PARTY PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY, "SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE ParagonERP SOLUTION IS FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE ParagonERP SOLUTION. ParagonERP AND ITS SUPPLIERS DO NOT WARRANT THAT THE ParagonERP Solution IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE EFFECTIVE DATE.
11.3 ParagonERP AND ITS SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE ParagonERP SOLUTION WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
11.4 ParagonERP DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE ParagonERP SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME ParagonERP MAY REMOVE THE ParagonERP SOLUTION FOR INDEFINITE PERIODS OF TIME.
12. LIMITATION OF LIABILITY AND INDEMNITY.
12.1 IN NO EVENT SHALL ParagonERP, ITS VALUE ADDED PARTNERS AND SUPPLIERS OF THIRD PARTY SOFTWARE BE LIABLE FOR ANY LOSS OF PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES. ALL LIABILITY BY ParagonERP HEREUNDER IS EXPRESSLY LIMITED TO THE LESSER OF (a) THE CUMULATIVE AMOUNT PAID BY YOU TO ParagonERP PURSUANT TO THIS AGREEMENT DURING THE SIX MONTHS PRIOR TO THE DATE OF THE FIRST OCCURRENCE OF ANY INCIDENT UPON WHICH CLAIM FOR LIABILITY IS BASED AND (b) US $10,000.
12.2 IN NO EVENT SHALL ParagonERP, ITS VALUE ADDED PARTNERS AND SUPPLIERS OF THIRD PARTY SOFTWARE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST REVENUE, LOST PROFITS, LOST OR DAMAGED DATA, INTERRUPTION OF BUSINESS, LOST OPPORTUNITY, LOSS OF GOODWILL OR LOSS OF REPUTATION, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY LIABILITY, STRICT LIABILITY OR OTHERWISE, EVEN IF ParagonERP OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF. THESE LIMITATIONS SHALL APPLY UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM THE USE OF THE ParagonERP SOLUTION, OR THE FAILURE OF THE ParagonERP SOLUTION TO PERFORM, OR FOR ANY OTHER REASON, AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12.3 You agree to indemnify and hold ParagonERP and its Suppliers harmless from any and all third-party claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Paragon Software (collectively referred to as "Claims"). ParagonERP reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by ParagonERP in the defense of any Claims.
12.4 No action, regardless of form, arising out of this Agreement may be brought by you more than 12 months after the date of the occurrence of the facts, circumstances or events in respect of such claim.
13. GOVERNING LAW AND DISPUTES
13.1 This Agreement is and shall be deemed to be a contract entered into and made pursuant to the laws of the Province of Ontario and the laws of Canada applicable therein and shall in all respects be governed, construed, applied and enforced in accordance with said laws, without reference to applicable conflict of laws rules or principles. Each of the Parties to this Agreement irrevocably submits to the non-exclusive jurisdiction of the courts of the Province of Ontario.
13.2 All disputes arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement, will be finally resolved by arbitration under the Arbitration Rules of the ADR Institute of Canada, Inc. The Seat of Arbitration will be Toronto. The language of the arbitration will be English.
13.3 The parties each agree that any and all disputes must be brought in the parties' individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. In addition, you agree to waive the right to participate in a class action or litigate on a class-wide basis. You waive any right to a trial by jury. You agree that you have expressly and knowingly waived these rights.
14. GENERAL
14.1 You represent and warrant that you (a) have, and at all times during the term of this Agreement, will comply with all applicable federal, provincial, state and local laws, ordinances, codes, regulations, rules, policies, licensing requirements, regulations and procedures, including without limitation, such laws and regulations related to resale or use of the Paragon Software under any laws, regulations or anti-bribery laws, including the U.S. Foreign Corrupt Practices Act and Corruption of Foreign Public Officials Act and (collectively, "Applicable Laws") and (b) have obtained all approvals, made all filings, completed all registrations, obtained all licenses and permits and given all notices, whatsoever, as may be required to enter into this Agreement, conducted all your activities as contemplated herein and will make all payments to ParagonERP as and when set out in this Agreement (herein, collectively, "Governmental Approvals") and all of which you shall retain or maintain in full force and effect, without amendment, change or alteration, at all times, except as may be required by law, policy or regulation, in order to retain or maintain the same.
14.2 This Agreement, including terms incorporated by reference, is the entire agreement between you and ParagonERP and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. If any part of this Agreement is ruled invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. ParagonERP's failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision. ParagonERP will not be responsible for failures to fulfill any obligations due to causes beyond its control.
14.3 All notices related to this Agreement shall be given to ParagonERP in writing at legal@ParagonERP.com and all notices to you shall be given electronically at the email address listed on the Customer Form.
14.4 You cannot assign or transfer ownership of this Agreement to anyone without written approval of ParagonERP. However, ParagonERP may assign or transfer it without your consent. Any assignment in violation of this Section shall be void.
14.5 The parties to this Agreement are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
14.6 Sections 3.2, 3.3, 7.1, 7.3, 7.5, 8, 9, 10.5 and 12 will survive and remain in effect even if the Agreement is terminated or expires.
14.7 It is the express wish of the parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglais seulement.