Terms of Service
This document defines the Terms of Service provided by TIRE STORAGE SOLUTIONS LTD., a Canada corporation with an office located at, 15 Brunel Rd, Unit #9, Mississauga Ontario, Canada L5Z 2H6 Phone: (905) 370-2113; (hereinafter “TSS”) and its customers (hereinafter the “Dealer”)
WHEREAS the Dealer receives and stores tires from its customers (the “Tires”);
AND WHEREAS TSS has developed a system and method for the tracking and storage of Tires through the use of specialized software program (the “Software”) and certain equipment (the “Business”);
AND WHEREAS Dealer wishes to acquire the right and license to use the Software and to obtain certain Services (as such capitalized term is, and all other capitalized terms not otherwise defined herein are, defined in Schedule “A” to this document) and TSS has agreed to grant said license and provide such Services upon and subject to these terms of service;
NOW THEREFORE THIS DOCUMENT WITNESSES that in consideration of the respective covenants and agreements of the parties contained herein, the parties hereto agree as follows:
1. In connection with the operation by the Dealer of the Business:
(a) TSS shall sell, and the Dealer shall buy, the Designated Hardware;
(b) TSS hereby grants to Dealer a non-exclusive and non-transferable license during the Term, to use the Software at the Designated Locations and to input and access the Customer’s Information in the manner contemplated by the Authorized Dealer Agreement (the “Software License”);
(c) upon request by the Dealer, TSS shall train the employees of Dealer in the use and operation of the Software (the “Training”);
(d) the Dealer shall have the non-exclusive right to use and display the Trademarks in the operation of the Business; all of which shall collectively be referred to as the “Services”.
2. Additional options
(a) for the installation and deployment of the Designated Hardware and for initial online training included;
(b) for additional online training, additional fee per session will apply;
(c) for any additional onsite Training, additional fee per day plus travel expenses, or any portion thereof, will apply;
(d)Taxes will apply as required
3. Schedules A, B, C, D and E form an integral part of this document and are incorporated herein by reference.
THIS IS SCHEDULE “A” TO THE TIRE STORAGE SOLUTIONS TERMS OF SERVICE
1.1 Definitions. In this document, unless the context otherwise requires, the following terms have the following meanings:
(a) “Agreement” means the Authorized Dealer Agreement and any schedule, appendix, addendum or amendment which is signed by the parties and which references this agreement;
(b) “Bar Code Label” means the tag containing the Customer’s Information in bar code form which is to identify each Tire and the location of each Tire within a Container;
(c) “Business” means the identification, inventorying, storage and/or retrieval of Tires;
(d) “Confidential Information” means any business, marketing, technical, scientific or other information disclosed by a party and relating to such party’s operations, products, designs, plans, strategy, business opportunities, finances, research, development, know-how, trade secrets or employees, and, at the time of disclosure, is designated as confidential, is disclosed in circumstances of confidence, or would be understood by the receiving party, exercising reasonable business judgment, to be confidential;
(e) “Customer’s Information” means the Data Fields in the Software which are used to identify the customer’s relevant information i.e. name, address, year, make and model number of the vehicle, vehicle identification number, make, model number and condition of tires, etc.;
(f) “Data Fields” means the information fields which are to be completed by Dealer, relating to the Customer’s Information;
(g) “Database” means the aggregate of the Customer’s Information and for greater certainty includes any content, reports, data, databases resulting therefrom;
(h) “Designated Hardware” means, inter alia:
(i) the mobile computer which enables the Bar Code Label to be placed on each Tire or on each Container to be interpreted, stored and transmitted using the Software to the Database maintained by TSS;
(ii) the printer which produces the Bar Code Label for placement on each Tire or on each Container; and
(iii) such other hardware or equipment as may be required by TSS for use by the Dealer in connection with the operation of the Business;
(i) “Designated Location(s)” means only the location(s) described on the first page to this Authorized Dealer Agreement as being the Dealer’s place(s) of business;
(j) “Documentation” means user manuals, reference manuals, on-line help or other printed material or instructions accompanying the Software;
(k) “Person” means any individual, partnership, limited partnership, joint venture, syndicate, sole proprietorship, company or corporation, unincorporated association, trust, trustee, executor, administrator or other legal personal representative, regulatory body or agency, government or governmental agency;
(l) “Services” has the meaning ascribed thereto in Section 1 of the Authorized Dealer Agreement;
(m) “Software” means the Tire Storage Solutions software which contains the Data Fields, and includes any Documentation;
(n) “Software License” means the license to use the Software pursuant to the terms and conditions of the Authorized Dealer Agreement, as more fully set out in Section 1(b) of the Authorized Dealer Agreement; and
(o) “Specifications” means the specifications relating to the functionality and/or features of the Software;
2. REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of TSS. TSS represents and warrants as follows, and acknowledges that Dealer is relying upon such representations and warranties:
(a) TSS is duly incorporated and validly existing under the laws of its jurisdiction of incorporation; TSS has the corporate power and authority to enter into the Authorized Dealer Agreement and to perform its obligations hereunder;
(b) the performance by TSS of its obligations hereunder will not violate the intellectual property rights of any Person, including without limitation any trademark, copyright or other similar rights; and
(c) TSS is the owner of the Software.
2.2 Representations and Warranties of Dealer. The Dealer represents and warrants that, and acknowledges that TSS is relying upon such representations and warranties:
(a) Dealer is duly incorporated and validly existing under the laws of its jurisdiction of incorporation;
(b) Dealer has the corporate power and authority to enter into the Authorized Dealer Agreement and to perform its obligations hereunder; and
(c) Dealer, as well as all representatives of Dealer, are registered under, and are compliant with, all laws, or requirements of any Person, governing the sale and servicing of Tires pursuant to the laws of the territory in which the Dealer operates its business.
3. CONFIDENTIALITY AND PERSONAL INFORMATION
3.1 Confidentiality. Except for the specific rights granted by the Authorized Dealer Agreement, neither party shall use or disclose any Confidential Information of the other party. A party receiving Confidential Information from the other shall use the same degree of care to protect the confidentiality of such Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable care, including ensuring that such information is disclosed to employees and agents on a need to know basis and that all such employees and agents have agreed in writing not to disclose or use Confidential Information. Within fifteen (15) days of the request of the disclosing party, and in its sole discretion, the receiving party shall either return to the disclosing party originals and copies of any Confidential Information and all information, records and materials developed from them by the receiving party or destroy the same. Either party may only disclose the general nature, but not the specific terms and conditions, of the Authorized Dealer Agreement without the prior consent of the other party. The disclosure obligations contained herein shall continue for a period of ten (10) years after expiration or termination of the Authorized Dealer Agreement.
3.2 Privacy and Personal Information. Each party agrees that it will not, without the prior written consent of the other party, disclose or make available any Personal Information (as that term is define in the Personal Information Protection and Electronic Documents Act to any other person or entity except for designated employees of the other party who have a need to access the Personal Information in order to fulfil the terms of the Authorized Dealer Agreement. No employee shall be designated by the either party to access the Personal Information disclosed or transferred by the other party unless such employee agrees to hold such Personal Information in confidence and private and limit the use of such Personal Information to the uses permitted hereby pursuant to and in accordance with a written covenant at least as restrictive as the covenant given by each party contained in this Section 3.2.
3.3 Ibid. Each party hereto agrees that the Personal Information provided to it by the other party hereto shall only be used for such purposes as are specified herein or as otherwise permitted in writing by the disclosing party and that the other party shall not sell, transfer or disclose such Personal Information to any other party or use the Personal Information for any other purpose other than the purposes specified in the Authorized Dealer Agreement. Each other party will follow all rules and regulations of the disclosing party with respect to the use, destruction, retention and security of the Personal Information disclosed by the disclosing party.
4. LIMITED WARRANTY
4.1 Limited Warranty. The TSS warrants to the Dealer that the Services which TSS is obligated to perform hereunder, will be performed in a good and professional manner and in accordance with all applicable laws and regulations and all generally accepted industry standards for the provision of similar services.
4.2 Exclusive Remedies. Notwithstanding anything herein to the contrary, TSS’s entire liability, and the Dealer’s sole and exclusive remedy, for a breach of the warranty set out in Section 4.1 shall be, at TSS’s sole option, for TSS to:
(a) return the Fees paid by the Dealer for the current Term; or
(b) use all commercially reasonable efforts to promptly correct the breach.
4.3 No Liability. Notwithstanding anything herein contained to the contrary, in no event whatsoever will TSS, its directors, officers, employees, agents, contractors or affiliates, be liable for any claim for:
(a) punitive, exemplary or aggravated damages;
(b) damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of computer resources or any stored data, including the Customer’s Information;
(c) indirect, consequential or special damages of any kind;
(d) contribution, indemnity or set-off in respect of any claims against the Dealer by any third party; or
(e) any damages whatsoever relating to interruption, delays, errors or omissions.
4.4 Limitation on Liability. Without limiting the generality of Sections 4.1 through 4.4 inclusive, except for Loss (as defined in Schedule “D”), the maximum total liability of TSS, and its directors, officers, agents, representatives, shareholders and employees, for any claim whatsoever, under any circumstances, regardless of the cause of action and including without limitation claims for breach of contract, tort, negligence or otherwise, and the Dealer’s sole remedy therefore, shall be strictly limited to an award for direct, provable damages not to exceed the amount of Fees paid by the Dealer to TSS hereunder for the current Term. No action, regardless of form, arising out of the Authorized Dealer Agreement may be brought by the Dealer more than twelve (12) months after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or reasonably ought to have been discovered by, the Dealer.
5.1 Indemnification by the Dealer. The Dealer agrees to indemnify and hold TSS, its directors, officers, employees, agents, contractors and affiliates, harmless from and against any loss, damage or liability, including reasonable legal costs that TSS may suffer or incur as a result of or in connection with any of the following:
(a) the Dealer’s use of the Services;
(b) any claim or suit made by any client of the Dealer;
(c) any breach by the Dealer of its obligations under the Authorized Dealer Agreement;
(d) the Dealer’s use of the Software in any manner not contemplated by the Documentation or the modification or unauthorized use of the Software; or
(e) the Dealer’s use of the Software in connection with any activity that is illegal, offensive or immoral or that infringes on the rights of privacy or publicity, or any intellectual or proprietary rights of any third party.
5.2 Indemnification by TSS for Claims. The TSS agrees to indemnify and hold the Dealer, its directors, officers, employees, agents, contractors and affiliates, harmless from and against any loss, damage or liability, including reasonable legal costs, that the Dealer may suffer or incur as a result of or in connection with any claim, that the use by the Dealers of the Services provided by TSS in accordance with the terms of the Authorized Dealer Agreement has infringed the trademark, patent, copyright or other similar intellectual property rights of any third party.
6.1 Without limiting any other rights or remedies available to TSS, at law or in equity, TSS has the right to terminate the Authorized Dealer Agreement immediately and without notice to Dealer, if:
(a) Dealer is in breach or default of any of its obligations under the Authorized Dealer Agreement, other than in regard to payment, and such breach or default continues un-rectified for ten (10) days following written notice of such breach or default to Dealer;
(b)Dealer ceases to carry on business, voluntarily enters into, or is adjudged to be, bankrupt or insolvent, or a receiver, trustee or similar person is appointed with respect to Dealer’s assets; or
(c) TSS has not received the Fees when due under the Authorized Dealer Agreement.
6.2 Upon termination, TSS may suspend the Services until the past due payment is made and in the event of early termination of the Authorized Dealer Agreement.
THIS IS SCHEDULE “B” TO THE TIRE STORAGE SOLUTIONS TERMS OF SERVICE
1. Obligations of the Dealer. The Dealer shall accept the Designated Hardware, related materials, training and warranty under the terms and conditions of the Authorized Dealer Agreement.
2. Installation. The Dealer is responsible for the Installation of the Designated Hardware. Installation occurs when the Designated Hardware is at the Designated Location and the Designated Hardware is configured so as to comply with the Specifications.
3. Acceptance. The Designated Hardware shall be considered as having been accepted by the Dealer when:
(a) with respect to the mobile computer, it is capable of interpreting, storing or transmitting the Customer’s Information contained on the Bar Code Label to be placed on each Tire or on each Container to be interpreted, stored and transmitted using the Software to the Database maintained by TSS; and
(b) with respect to the printer, it produces the Bar Code Label containing the Customer’s Information for placement on each Tire or on each Container.
4. Ownership. The ownership in the Designated Hardware passes from TSS to the Dealer at the time of delivery provided that the Dealer has paid all the amounts owing to TSS pursuant to Subsection 2(a) of the Authorized Dealer Agreement. The Dealer is responsible for insuring the Designated Hardware after the Dealer assumes ownership.
5. Warranties. TSS warrants as follows:
(a) TSS has the right to sell the Designated Hardware free of any liens or encumbrances.
(b) The Consideration paid for the Designated Hardware is the same or less than the generally available price for the same equipment as at the date of the Authorized Dealer Agreement.
(c) The Designated Hardware is of marketable quality.
(d) The Dealer may avail itself of any warranty provided by the original manufacturer of the Designated Hardware and will facilitate, at the Dealer’s request, the purchase of an extended warranty.
(e) At the time of Delivery, the Designated Hardware complies with the Specifications.
(f) The Designated Hardware is new.
The above warranties are instead of any and all other warranties, representations or conditions (express or implied, oral or written) with respect to the Designated Hardware, including any implied warranties or conditions of title, merchantability or fitness or suitability for a particular purpose. TSS disclaims and the Dealer waives all other such warranties, representations and conditions.
THIS IS SCHEDULE “C” TO THE TIRE STORAGE SOLUTIONS TERMS OF SERVICE
1. Grant of Software License. TSS hereby grants to the Dealer a non-exclusive and non-transferable license during the Term, to use the Software at the Designated Locations and to access the Customer’s Information in the manner contemplated herein (the “Software License”). The license granted does not permit the Dealer to, and the Dealer will not:
(a) use the Software for any use or purpose other than for the purposes set out in Section 1 and otherwise in a manner consistent with the Documentation;
(b) provide, lease, lend, use for timesharing, application service provider or service bureau purposes, or otherwise use or allow others to use the Software for their own benefit or for the benefit of third parties;
(c) modify, incorporate into or with other software, or create a derivative work of any part of the Software;
(d) disclose the results of any benchmarking of the Software, or use such results for its own competing software development activities;
(e) copy, reproduce, duplicate, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatever.
2. Terms and Conditions Surrounding Hosting of Customer’s Information. The Dealer acknowledges that:
(a) TSS has entered into a hosting agreement with a third-party company to host the Software, which may be amended or replaced from time to time;
(b) TSS does not provide the Dealer with any performance specifications regarding the Dealer’s access to, or the availability of, the Software or the Database;
(c) TSS is not liable for any failure in the Dealer’s ability to access the Software or the Database;
(d) the Dealer shall be solely responsible for the inputs, selection and use of the services and all items, statements or other content transmitted, posted, received or created through Dealer’s account, even if transmitted, posted, received or created by someone else; and
(e) the Dealer will provide all power, supplies, cabling, communications facilities, and all other equipment and facilities required to access the Software and agrees to comply with all Licensor’s policies.
3. Property Rights. The Dealer acknowledges as follows:
(a) the Software is licensed, not sold;
(b) all right, title, interest, ownership rights, and all intellectual property rights in and to the Software are and shall remain solely and exclusively in TSS and/or its licensors;
(c) the Dealer agrees not to take any action to jeopardize, limit or interfere in any manner with TSS’s (or its licensor’s) ownership of or rights in or to the Software; and
(d) the Dealer acknowledges that the Software is protected by copyright and other intellectual property laws and by international treaties and agrees to abide by all applicable laws, regulations and treaties in regard thereto.
The Dealer acknowledges that the Software is of an extraordinary and unique character and that the injury which would be suffered by TSS in the event of a breach by Dealer of any of its obligations hereunder would be irreparable and otherwise of a character which could not be fully compensated for solely by recovery of monetary damages. Accordingly, without in any way limiting the other rights or remedies of TSS, TSS shall be entitled to apply to obtain equitable relief, restraining order, injunction, decree, or remedy, as may be appropriate to restrain any breach or threatened breach of the foregoing licences by the Dealer.
4.1 Notice of Infringement. The Dealer shall immediately notify TSS in writing of any claim, demand, action, suit or proceeding, threatened or actual, against the Dealer, which relates to the Dealer’s use of the Software and in which it is alleged that the Dealer has or may have infringed the trademark, patent, copyright or other similar intellectual property rights of any third party (a “Claim”).
4.2 Option to Defend. The Licensor, if it elects to do so by notice in writing to the Dealer, may defend and/or settle any Claim, in its sole discretion and in whatever manner that TSS deems appropriate, and, in that event, the Dealer hereby appoints TSS as its lawful attorney, with full power of substitution, to do such things as TSS in its discretion considers necessary or desirable in order to defend and/or settle any such Claim, and such appointment, coupled with an interest, is irrevocable by the Dealer. In the event that TSS elects to undertake the defence and/or settlement of a Claim as herein provided, the Dealer agrees to use co-operate in all reasonable respects with the efforts of TSS in regard thereto, at TSS’s expense.
4.3 Use of Software Prohibited. In the event that the Dealer is prohibited from using the Software in accordance with the provisions of the Authorized Dealer Agreement, by reason of the order of a court of competent jurisdiction, TSS shall:
(a) provide the Dealer with software or products that have functionality similar to that of the Software;
(b) modify or alter the Software so as to render it useable by the Dealer in accordance with the provisions of the Authorized Dealer Agreement; or
(c) return to the Dealer any unused or prepaid license fees paid by the Dealer hereunder, upon which event the Authorized Dealer Agreement and any rights of the Dealer to use the Software shall terminate and the Dealer shall return all copies of the Software and the Documentation to TSS.
THIS IS SCHEDULE “D” TO THE TIRE STORAGE SOLUTIONS TERMS OF SERVICE
1. Definitions. In this Schedule, unless the context requires otherwise, the terms defined in this document have the meanings ascribed to therein and the following terms will have the meanings indicated below:
(a) “Applicable Law” means, with respect to any Governmental Authority, (i) any law, statute, regulation, code, ordinance, license, decision, order, writ, injunction, decision, directive, judgment, policy, decree and any judicial or administrative interpretations thereof, (ii) any agreement, concession or arrangement with any other Governmental Authority and (iii) any license, permit or compliance requirement;
(b) “Governmental Authority” means any Canadian federal, provincial, regional, local or municipal governmental body, agency, instrumentality, board, bureau, commission, department, authority or entity established or controlled by a government, including any legislative, administrative or judicial body, or any person purporting to act therefor.
(c) “Loss” means any loss of Tires occurring as a result of any contamination, adulteration, mislabelling, misidentification or other loss of or damage to wheels.
THIS IS SCHEDULE “E” TO THE TIRE STORAGE SOLUTIONS TERMS OF SERVICE
1. Grant of License to use the Trademarks. In connection with the operation of the Business and the use of the Software by the Dealer, the Dealer:
(a) shall utilize the Trademarks (as defined below) without any accompanying words or symbols of any nature;
(b) acknowledges that the use of any of the Trademarks outside the scope of the Authorized Dealer Agreement, without TSS’s prior written consent, is an infringement of TSS’s ownership and rights in and to the Trademarks, and expressly covenants that during the currency of the Authorized Dealer Agreement and after the expiration or termination of it the Dealer shall not, directly or indirectly, commit an act of infringement or contest or aid in contesting the validity or right of TSS to any of the Trademarks or take any other action in derogation thereof;
(c) shall use the Trademarks only in connection with the Business and for no other purpose. All renderings of the Trademarks shall be accompanied by a notice indicating the ownership of the Trademarks by TSS, in such form as TSS may require from time to time;
(d) acknowledges that neither the Authorized Dealer Agreement nor the grant of the Software License shall confer upon the Dealer any right, title or interest in any of the Trademarks, except the right to use the same in accordance with the terms hereof, and the Dealer agrees not to use any of the Trademarks in any manner calculated to represent that the Dealer is the owner of the same. The Dealer agrees that he will not at any time during the term of the Authorized Dealer Agreement or thereafter dispute or contest, directly or indirectly, the validity or enforceability of any of the Trademarks nor counsel, procure or assist anyone else to do the same, nor directly or indirectly attempt to dilute the value of the goodwill attaching to the Trademarks, nor counsel, procure or assist anyone else to do the same;
(e) agrees that all goodwill associated with TSS and identified by the Trademarks shall enure directly and exclusively to the benefit of TSS and is the property of TSS and that upon the expiration or termination of the Authorized Dealer Agreement, no monetary amount shall be assigned as attributable to any goodwill associated with any of the Dealer's activities in the operation of the Business or the Dealer's use of the Trademarks; and
(f) shall plainly indicate that the Dealer is a licensee of the Trademarks and trade names of TSS if the Dealer utilizes any of the Trademarks on any stationary, invoices, purchase orders or similar documents, such material. Prior to any use by the Dealer of any additional or substitute trade mark or trade name of TSS, the Dealer shall, at his own expense, amend such sign to explicitly refer to each such additional or substitute trade mark or trade name.
“Trademarks” means the trade names, trademarks, design marks and other commercial symbols and related logos relating to the trade name "TIRE STORAGE SOLUTIONS" together with such other trade names, Trademarks, design marks, symbols and logos as TSS may from time to time designate for use in connection with the grant of the Software License.