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Transoft
Solutions Inc.
SOFTWARE
LICENSE AGREEMENT
IMPORTANT!
Please CAREFULLY READ the following License Agreement!
This is a legal
agreement between You (as defined at 2.1(ll)) on the
one part as licensee (hereinafter referred to as “You” or “Licensee”), and
Transoft Solutions Inc., as licensor, (hereafter referred to as
"Transoft") on the other part.
WARNING
Before
You acquire or install the Software You must accept the terms and conditions
of this Agreement. Accordingly, we recommend that You carefully read the
terms and conditions of this Agreement. COPYING
OR USE OF THE SOFTWARE EXCEPT AS EXPRESSLY PERMITTED BY THIS AGREEMENT IS
STRICTLY PROHIBITED AND CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND
AN INFRINGEMENT OF COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS IN AND TO
THE SOFTWARE.
IF
YOU COPY OR USE ALL OR ANY PORTION OF THIS SOFTWARE WITHOUT ENTERING INTO
THIS AGREEMENT OR OTHERWISE OBTAINING WRITTEN PERMISSION OF TRANSOFT, YOU ARE
VIOLATING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAW AND YOU MAY BE LIABLE
TO TRANSOFT AND ITS LICENSORS FOR DAMAGES. YOU MAY ALSO BE SUBJECT TO
PROSECUTION UNDER APPLICABLE LAWS.
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(1) contains
or stores computer programs;
(2) contains
a hardware partition or blade;
2) “User
Subscription License” as described and defined in Schedule “A”;
The provisions
applying to each License Type are as set out in Schedule “A” of this Agreement.
(a)
Libraries.
(1)
Except images which are identified by
Transoft as open-source images (the use of which is governed by the applicable
license terms available from the open-sourced images providers), Transoft is
the owner of the files or images in the libraries, including but not limited to
files or images of vehicles, aircraft, buildings, building components, facilities,
systems, passenger boarding bridges, baggage or cargo handling systems, people
mover systems, security systems or facilities, or other equipment, components,
systems or facilities, contained within or included with the Software (the
“Libraries”).
(2)
The Libraries are contained within or included
with the Software only for the operation of the Software and in conjunction
with the use of the Software. You may not copy, move, activate, use, transfer,
or allow any images management tool or software application to copy, move,
activate, transfer or use the Libraries in or with any software application,
program, software routine or file other than the Software.
(3)
Open Sourced images. Some images or files distributed by Transoft
may be open-source images or files and identified as such. Use of these open-source images or files is
governed by the applicable license terms available from the open-sourced images
or file providers.
(b)
Consent to Use of Data
(1)
You agree that Transoft may collect and
use technical data and related information, including but not limited to
technical information about Your use of the Software, Your Computer Device,
system, network and application software, and peripherals, that is gathered
periodically to facilitate the provision of products, software updates, upgrades,
fixes, product support services and other services to You (if any) related to
the Software. Transoft may use this information, as long as it is in a form
that does not personally identify You, to improve its products, services and
technologies or to provide or offer products, services or technologies to You.
(c)
Online Services
(1)
The Software may rely upon or facilitate
Your access to websites maintained by Transoft or its affiliates or third
parties offering products, information, software and services (“Online
Services”). Your access to and use of any website or online services is
governed by the terms, conditions, disclaimers and notices found on such site
or otherwise associated with any such products, information, software or services.
Transoft may, at any time, for any reason, modify or discontinue the availability
of any website and Online Services. Transoft does not control, endorse, or
accept responsibility for websites or Online Services offered by third parties.
Any dealings between You and any third party in connection with a website or
Online Services, including delivery of and payment for goods and services and
any other terms, conditions, warranties or representations associated with such
dealings, are solely between You and such third party. Except as expressly
agreed by Transoft or its affiliates or a third party in a separate agreement, Your
use of websites and Online Services is at Your own risk and under the limited
warranty, disclaimer and liability limitations set out in section 11.
(1)
If Your Software is an upgrade or update
to a previous version of Transoft software, You must possess a valid license to
such previous version in order to install, access or use such upgrade or
update. After You install such update or upgrade, You may continue to use any
such previous version in accordance with its end-user license agreement only if
(a) the upgrade or update and all previous versions are installed on the same
device, (b) the previous versions or copies thereof are not transferred to
another party or device unless all copies of the update or upgrade are also
transferred to such party or device, and (c) You acknowledge that any
obligation Transoft may have to support the previous version(s) may be ended
upon the availability of the upgrade or update. No other use of the previous
version(s) is permitted after installation of an update or upgrade. Upgrades
and updates may be licensed to You by Transoft with additional or different
terms.
(1)
For purposes of acquisitions by the government
of the United States of America, including any division, branch, department,
agency, commission, office, unit, or other constituent part of such government
which is subject to the provisions of the U.S. Federal Acquisitions Regulation
as amended or replaced from time to time (the “U.S. Government”), the Software
is commercial computer software as
defined in U.S. Federal Acquisitions Regulation (“FAR”) Section 12.212 and
subject to restricted rights as defined in FAR Section 52.227-19 “Commercial
Computer Software – Restricted Rights” and in U.S. Defense Federal Acquisitions
Regulation Section 227.7202, “Rights in Commercial Computer Software or
Commercial Computer software Documentation,” as applicable, and any successor
regulations. Any use, modification, reproduction, release, performance, display,
or disclosure of the Software by the U.S. Government must be in accordance with
the license rights and restrictions described in these terms.
(f)
Use in a Virtualized Environment
(1)
If You use virtualization software to
create one or more virtual computers on a single computer hardware system, each
virtual computer, and the physical computer, is considered a separate Computer
Device for the purposes of this Agreement. If You wish to use the Software on
more than one Computer Device, You must obtain separate copies of the Software
and obtain a separate license for each copy. You acknowledge and understand that
content protected by digital rights management technology or other encryption
technology may be less secure in a virtualized environment.
Transoft
Solutions may use Your Customer Data for purposes of providing You support,
addressing technical issues or requests, in order to improve or enhance Transoft’s
products and services, or when legally obligated. Transoft Solutions does not
monitor Customer Data used in its products and services but reserves the right
to remove Customer Data for any reason. When You provide Your Customer Data, You
authorize Transoft Solutions to use, reproduce, modify, distribute and make
accessible Your Customer Data in connection with providing You with products or
services and to fulfill Transoft’s obligations as permitted by these Terms.
5. permit Authorized Users to share Accounts, login or password information in respect to Accounts
(a)
You are responsible for ensuring that
all Authorized Users comply with the terms of this Software License Agreement,
and for the security of Accounts and all logins and passwords for such Accounts.
You must report any misuse of Accounts to Transoft immediately upon detection.
(b)
You are responsible for ensuring that
the Account information entered for You and by Your Authorized Users remains
and continues to be true and complete.
(c)
Transoft has the right to verify
(electronically or otherwise) Your installation of, access to, and use of any Software,
including installation, access and use by Your Authorized Users. As part of any
such verification, Transoft or its authorized representative will have the
right, on 15 days’ prior notice to You, to inspect Your records, systems, and
facilities. Additionally, within 15 days of such verification request, You
will, if requested, provide copies of all records and other additional
information related to Your (including Your Authorized Users’) installation of,
access to, and use of the Software. If Transoft determines that Your
installation, access or use is not in compliance with these terms of this
Agreement or any other terms agreed in writing with You, You will promptly
remedy the noncompliance, which may include purchasing valid Licenses to bring
Your usage into compliance, and pay the reasonable costs of the verification. Failure to remedy noncompliance will result
in immediate termination of this Software License Agreement. Transoft reserves
the right to seek any other remedies available at law or in equity.
(d)
The Software may include security
elements which support the detection of use and copying of Software, and which
may report such use and copying to Transoft for the purpose of verifying
compliance with the terms of this Software License Agreement. You acknowledge and accept that such data
will be reported to Transoft solely for this purpose.
(f)
You agree that: (1) the Software and all
related documentation, information and materials received by You from Transoft
under this Agreement may contain information that is the confidential property
of Transoft or its licensors; (2) all ideas, algorithms, techniques, methods
and processes used in the Software are and will be treated as the confidential
property of Transoft or its licensors; (3) You will exercise all reasonable
efforts to safeguard the confidentiality of all of the foregoing; and (4) none
of the foregoing nor any part thereof may be duplicated or in any way disclosed
to others, or used in whole or in part, other than described in Sections 3 and
4 and the portions of Schedules A and B that apply to the License Type
purchased by You. You agree to indemnify Transoft or its licensors for all
damages, costs and expenses (including court costs and reasonable legal fees
and costs) incurred by Transoft or its licensors in connection with any failure
of You or employees or agents of You to comply with the obligations of You
under this Section. The obligations of You previously set in this clause,
however, will not apply to confidential property which (i)
is now or hereafter becomes publicly known; (ii) is disclosed to You by a third
party which You had no reason to believe was not legally entitled to disclose
such information; (iii) is known by You prior to receipt by You of the
confidential property; (iv) is subsequently developed by You independently of
any disclosures made by Transoft; or (v) is disclosed with Transoft’s express
written consent.
(g)
The parties agree to treat as
confidential the terms of Agreement (including the Schedules) and the parties
agree to use their reasonable efforts to prevent disclosure thereof to any
third party except with the prior written consent of the other party, or as
required by law. This obligation of confidentiality shall extend for a period
of one (1) year following termination or expiration of this Agreement.
Notwithstanding the generality of the foregoing, either party may disclose the
existence of Agreement and may disclose the financial and other terms of this
Agreement to its employees, consultants, accountants, lawyers and other
professional advisors, third party lenders or others who have (1) a reasonable
commercial need to know the terms of this Agreement; and (2) a duty or
contractual obligation to maintain the confidentiality of this Agreement and
its terms.
14. .
Country-specific terms
(a)
Notwithstanding
the other terms of this Agreement, if Your principal place of business is in
(or, if You are an individual, You are a resident of) a country or jurisdiction
identified below, the terms set forth below for such country or jurisdiction
will apply to You:
(1)
Member states of
the European Union
(i)
If You acquired
Your License in a member country of the European Union or the European Free
Trade Association, the applicable “Territory” for such License is all the
countries of the European Union and the European Free Trade Association.
(ii)
If Your principal
place of business is in (or, if You are an individual, You are resident of) a
Member State of the European Union and there are any court proceedings in a
Member State between You and a third party relating to the use of an Offering,
(i) You will inform Transoft promptly in writing of
such court proceedings, and (ii) You will not serve Transoft with a third party
notice regarding such proceedings unless Transoft requests in writing that You
do so.
(iii)
If Transoft assigns
or otherwise transfers these Terms, Transoft will ensure that the assignment or
other transfer does not prejudice Your rights under these Terms. You may request Transoft’s consent to the
assignment or other transfer by You of these Terms and Your rights and
obligations under these Terms. Any such
consent by Transoft will be subject to demonstration by You that the transferee
will comply with these Terms, that You will remain responsible for such compliance,
and that You will no longer have any access to or use of any License granted
herein.
(iv)
Also, nothing in
these Terms purports to restrict or exclude (1) Transoft’s liability for death
or personal injury caused by Transoft’s negligence or (2) statutory liability
for products under the statute of a Member State of the European Union (e.g.,
the German Product Liability Act).
(b)
In addition,
notwithstanding any limitations on Territory in these Terms, these Terms do not
limit cross-border access or use (such as access or use in one Member State of
the European Union of Offerings purchased in another Member State of the
European Union) that is expressly authorized by applicable law.
(c)
Australia. The following
provision may apply to You depending on Your circumstances:
(1)
Our goods come
with guarantees that cannot be excluded under the Australian Consumer Law. You
are entitled to a replacement or refund for a major failure and for
compensation for any other reasonably foreseeable loss or damage. You are also
entitled to have the goods repaired or replaced if the goods fail to be of
acceptable quality and the failure does not amount to a major failure.
(2)
In addition to Your
other rights and remedies under law in relation to the Licenses, Licenses that
are legitimately purchased also come with a 90-day limited warranty as set out
in these Terms. If a License does not provide the general features and
functions described in the Documentation in the 90-day period after delivery to
You, please contact Transoft with details of Your product, serial number, place
of purchase, details of the defect and Your return contact details.
(d)
Transoft will not
be responsible for user error and may refer any such issues to a supporting
reseller, if any. You may be required to return the Software to the address we
provide to You at the time, at Your own cost.
(e)
DESPITE ANYTHING
ELSE IN THESE TERMS, IF ANY LICENSED SOFTWARE IS SUBJECT TO THE MANDATORY WARRANTIES OR
GUARANTEES OF THE COMPETITION AND CONSUMER ACT (CTH) OR OTHER APPLICABLE LAW IN
AUSTRALIA (THE “LAW”), AND SUCH LAW PERMITS TRANSOFT TO LIMIT ITS LIABILITY FOR
BREACH OF THESE WARRANTIES OR CONDITIONS, THEN TRANSOFT’S LIABILITY FOR BREACH
OF ANY SUCH WARRANTY OR GUARANTEE WILL BE LIMITED AT TRANSOFTS OPTION TO THE
REPAIR, REPLACEMENT OR REPERFORMANCE (OR THE COST OF DOING SO) OF THE RELEVANT
OFFERING.
(f)
Mainland China,
Hong Kong SAR, Macau SAR and Taiwan.
(1)
If You acquired
Your License in mainland China, the “Territory” for such subscription is
Mainland China. Likewise, if You acquired Your subscription in Hong Kong SAR,
the “Territory” for such subscription is Hong Kong SAR; if You acquired Your
subscription in Macau SAR, the “Territory” for such subscription is Macau SAR,
and if You acquired Your subscription in Taiwan, the “Territory” for such
subscription is Taiwan.
SCHEDULE
“A”
LICENSE
TYPES
(5) Except
as otherwise expressly permitted pursuant to the Scope of License You have purchased,
no Transfer is permitted and You are not permitted to make, grant, execute,
enter into, consent to, or allow any Transfer without the prior express written
consent of Transoft. If any Transfer occurs in breach of this Agreement,
Transoft shall have the right to terminate any rights for use of the Software
and any other rights granted to You pursuant to this Agreement immediately on
notice to You. Notwithstanding termination of any rights to use the Software or
termination of any other rights granted to You pursuant to this Agreement, You
remain obligated to perform and comply with all terms and conditions of this
Agreement.
SCHEDULE
“B”
MAINTENANCE ASSURANCE PROGRAM
This Maintenance Assurance
Program regulates the provision of Maintenance Services and Technical Product
Support to be provided by Transoft to You (the “Licensee”).
WHEREAS:
A.
Transoft and the Licensee have entered into one or more Software License
Agreements (the “SLA”) for the use of certain software owned by Transoft and
licensed to the Licensee (the “Licensed Software”).
B. Pursuant to the terms and
conditions of this Program, Transoft proposes to provide Maintenance Services
and Technical Product Support (as defined below) to the Licensee with respect
to the Licensed Software.
C. Section references in this Schedule B relate
to those Sections as set out within this Schedule B (unless otherwise
indicated).
TRANSOFT AND THE LICENSEE agree
as follows:
1.0
DEFINITIONS
1.1 “Annual Fee” means the fee payable by the Licensee to
Transoft on account of:
(a)
Services performed during the Initial Term as determined in accordance with the
Quote provided in Section 3.1; or
(b)
Services performed during a Renewal Term as determined in accordance with the
Quote provided in Section 4.2(a);
1.2 “Automatic Renewal Option” means an
option selected by the Licensee in a purchase order pursuant to Section 3.2(a)
indicating that the Licensor has elected to have a Renewal Term automatically
take effect;
1.3 “Documentation” means documentation
with respect to the Licensed Software provided to the Licensee pursuant to the
SLA;
1.4 “SLA” has the meaning set out in Recital A above;
1.5 “Expiration Date” means (except in
the case of an Automatic Renewal Term) the date on which the Initial Term or a
Renewal Term, as applicable will expire, which date will be:
(a)
the last day of the duration of the term as set out pursuant to Section 3.1(c)
or 4.2(b); or
(b)
if no date is set out pursuant to Sections 3.1(c) or 4.2(b), that day which is
one year from the commencement date of the Initial Term or the Renewal Term, as
applicable;
1.6 “Initial Term” has the meaning set out in Section 4.1;
1.7
“Late Renewal Fee” means the
amount added to the Renewal Fees applicable to the Renewal Term, as determined
pursuant to Section 4.2(a), if such Annual Fees are not paid by the
commencement of the Renewal Term, such Late Renewal Fee is comprised of the sum
of:
(a)
$100 (or the equivalent in the currency
in which Licensee is invoiced converted from Canadian dollars at the average
exchange rate of the previous year as determined by the Bank of Canada, rounded
to the nearest integer) or 10% of the Renewal Fee, whichever is greater; and
(b) If
the Renewal Fee plus the amount set out in sub-section 1.7(a) has not been fully paid within 30 days after
the commencement of the Renewal Term, an additional amount of 1/12th
of the Renewal Fee multiplied by the number of months after the commencement of
the Renewal Term, plus 10%;
1.8 “Maintenance”
means the provision of Maintenance Services and Technical Product Support during
the Maintenance Term to Licensees in accordance with the provisions of this
Schedule B;
1.9 “Maintenance Services”
means:
(a) updates
to the Licensed Software including patches, bug fixes and minor software
enhancements, and updates to the Documentation; and
(b) the
right to use new versions of the Licensed Software and related Documentation,
provided that prior to use of any new version of the Licensed Software, the
Licensee will enter into a new SLA with respect to any new version of the
Licensed Software;
1.10 “Maintenance Term” means the
Initial Term or the Renewal Term, as the case may be;
1.11 “Quote” means a quote provided in
accordance with Section 3.1 with respect to the Annual Fees payable by the
Licensee during the Initial Term or in accordance with Section 4.2(a) with
respect to the Annual Fees payable by the Licensee during a Renewal Term;
1.12 “Renewal
Fee” means the Fees applicable to the Renewal Term, as determined pursuant
to Section 4.2(a);
1.13 “Renewal Term” means any renewal term pursuant to Section
4.3;
1.14 “Retired Version” means a version of
the Licensed Software which is no longer supported by Transoft (as determined
by Transoft in its discretion);
1.15 “Sales Taxes” means,
where applicable such sum as will be levied upon the Annual Fee or Renewal Fee,
Supplemental Fees or any other fees payable pursuant to this Schedule B by the
Federal or any Provincial or Territorial Government and is computed as a
percentage of the fees and includes Goods and Services Tax, Harmonized Sales
Tax and any similar tax, the payment or collection of which, by the legislation
imposing such tax, is an obligation of Transoft;
1.16 “Service Hours” means regular business hours in the
respective jurisdiction where the Licensee is located, which can be found at
the following URLs:
(a)
for Licensees in North and South
America: https://www.transoftsolutions.com/technical-support/;
(b)
for Licensees in the Europe, Middle East
and Africa: https://www.transoftsolutions.com/emea/technical-support/;
(c)
for Licensees in Australia, New Zealand
and Asia Pacific: https://www.transoftsolutions.com/au/technical-support/;
Provided
that the foregoing URLs are subject to change from time to time at Transoft’s
sole discretion.
1.17 “Services” means the Technical
Product Support and the Maintenance Services and does not include the
Supplemental Services;
1.18 “Supplemental Fee” means the fee
payable to Transoft by the Licensee for Supplemental Services in accordance
with Section 2.3;
1.19 “Supplemental Services” means Transoft providing the
following:
(a)
Services which are required at any time outside of the Service Hours for the
jurisdiction where the Licensee resides;
(b)
on-site support or training services;
(c)
issues or errors resulting from the negligence, error, or omission of the
Licensee or its agents, employees, contractors, or representatives;
(d) issues resulting from
hardware malfunction;
(e) troubleshooting issues resulting from incorrect or unsupported configuration
of the hardware, operating system, or network on which the Licensed Software is
operating;
(f) troubleshooting
issues that do not impair or affect the operation of the Licensed Software;
(g)
support for Licensed Software which is being used on hardware or an operating
system other than those specified by Transoft for use with the Licensed
Software;
(h)
support for anything other than the Licensed Software, including any software
that is being used in combination with the Licensed Software;
(i) customization of the Licensed Software; and
(j)
delegated front-line support on behalf of Licensee’s support function, or
first-line support for Licensees’ users, which support should ordinarily be
provided by Licensee’s own support function, such as not but limited to
multiple installations for users within a networked environment.
1.20 “Technical Product Support” means
Transoft providing routine telephone and email support to provide the following
technical product support services:
(a)
proposed corrections for software error messages;
(b)
explanation of functions and features of the Licensed Software;
(c) explanation of the Documentation; and
(d)
guidance in the operation of the Licensed Software;
1.21 “Version” means the major number of
the Licensed Software at the time of its release, for example 10.1, in which
case the version number is 10.
2.0
SERVICES AND SUPPLEMENTAL SERVICES
2.1 Services. During the Maintenance
Term, Transoft will provide the Services (as defined in Section 1.17 above)
during the Service Hours in accordance with the terms of this Schedule B,
2.2 Exclusion. Notwithstanding Section
2.1 of this Schedule B, Transoft will have no obligation to provide the
Services if:
(a)
The version of Licensed Software for
which support is requested by the Licensee is older than one Version prior to
the latest Version released by Transoft, or older than three years, whichever
is shorter;
(b) the
Licensee is using a Retired Version;
(c) the
Licensee has modified the Licensed Software in any way;
(d) the
Licensee has any issues which are impacting the operation of the Licensed
Software, including, but not limited to defective hardware, viruses, and
network problems;
(e) the
Licensee is not using the Licensed Software with hardware and/or an operating
system which are compatible with the Licensed Software, as specified in the SLA
or in other materials or documentation provided by Transoft;
(f) in
the opinion of Transoft, the Licensee has not complied with its obligations
pursuant to Section 5.1;
(g) the
Licensee has failed to make payment to Transoft of any amount owing to Transoft
in accordance with the terms of this Schedule B; or
(h) the
Licensee is unable to (i) provide a valid license
number, (ii) verify the identity of Licensee’s Authorized User and/or Licensed
Software, as defined in SLA, and (iii) verify that Licensee is in compliance
with the SLA.
2.3 Supplemental Services. Supplemental
Services are not included in the Annual Fee. Upon request for Supplemental
Services by the Licensee, Transoft will provide a quote for the cost for such
Supplemental Services based on the rates charged by Transoft. Transoft will perform the Supplemental
Services at the written request of the Licensee after receipt and acceptance of
the quote, and the Licensee will pay for the Supplemental Services plus Sales
Taxes, if applicable, within 30 days of receipt of an invoice for such
Supplemental Services.
2.4
Service Level. Transoft's
service level commitment is that the SaaS Products and Services will be made
available for use for a minimum of 99.5% of the time during each calendar year.
Notwithstanding the foregoing, Licensee acknowledges and agrees that the SaaS
Products and Services may be unavailable from time to time as a result of
scheduled and unscheduled maintenance or other circumstances beyond the control
of Transoft. In the event that Transoft is not able to meet the service level
commitment for the availability of the SaaS Products and Services, Transoft
may, at its sole discretion, extend the Initial Term or any Renewal Term by a
corresponding period of time in which the SaaS Products and Services was
unavailable. Licensee agrees that any such extension of the Initial Term or any
Renewal Term will be Your only form of compensation in respect of Transoft not
meeting the service level commitment and that such compensation will be at Transoft's
sole discretion. Furthermore, You acknowledge and agree that Transoft shall not
be responsible for Your inability to access or use the Online Services as a
result of failures, errors unavailability or inoperability of Your equipment or
communication services or any service, equipment or communication disruptions
to the extent such disruptions are caused or contributed to by Licensee or any
third parties.
3.0
FEES, PAYMENT, AND INTEREST
3.1 Quote. Transoft will provide to the
Licensee a quote setting out the following:
(a) the
Fee payable by the Licensee to Transoft on account of Services to be provided
during the Initial Term;
(b) the
date on which the Quote must be accepted by the Licensee pursuant to Section
3.2 of this Schedule B (the “Acceptance Date”);
(c) the
duration of the Initial Term; and
(d) if
the Licensee did not pay the Renewal Fee prior to the Expiration Date, the Late
Renewal Fee or, the fee to upgrade the Licensed Software, if the License
Software has been upgraded since the Expiration Date, whichever fee is the
greater.
3.2 Acceptance. If on or before the Acceptance Date, the
Licensee:
(a) provides
to Transoft a signed purchase order confirming acceptance of the Quote and
other applicable terms, including but not limited to the Automatic Renewal
Option;
(b) pays
to Transoft the Annual Fee plus Sales Taxes, if applicable, or by such other
date indicated in the Quote, including, but not limited to the Automatic
Renewal Option; and
(c) agrees
to the terms of this Schedule B;
the
terms set out herein will become binding on Transoft and the Licensee.
3.3 No Acceptance. If the Licensee does
not comply with the provisions of Section 3.2 on or before the Acceptance Date,
then:
(a) the
Quote will become invalid and will no longer be binding on Transoft; and
(b) Maintenance
Services will cease.
3.4 Interest. Any amounts not paid when
due to Transoft pursuant to the terms of this Schedule B will bear interest at
a rate of 24% per annum.
3.5 Fees. Without limiting any other
provision of this Schedule B, the Licensee acknowledges and understands that
Transoft has the right to change the Annual Fee applicable to any Renewal Term,
as set out in Section 4.2 of this Schedule B.
4.0
TERM, RENEWAL, AND TERMINATION
4.1 Term. The term of Maintenance (the
“Initial Term”) will commence on the date that the Licensee complies with the
provisions of Section 3.2 of this Schedule B (the “Commencement Date”) and will
terminate on the Expiration Date.
4.2 Renewal. No less than 60 days prior
to the Expiration Date of the Initial Term or any Renewal Term, Transoft will
give a Quote to the Licensee consisting of:
(a)
the Renewal Fee;
(b)
the duration of the Renewal Term; and
(c)
any other terms applicable to the Renewal Term.
4.3 Acceptance of Renewal. If:
(a)
The Licensee selected the Automatic Renewal Option and the Licensee does not
within 30 days of delivery by Transoft of a Quote pursuant to Section 4.2 of
this Schedule B, give written notice to Transoft that the Licensee does not
intend to renew Maintenance, the terms of this Schedule B will automatically be
renewed and the terms of this Schedule B, as amended pursuant to Section 4.2
will apply to the Renewal Term; or
(b)
The Licensee did not select the Automatic Renewal Option and if no later than
30 days prior to the Expiration Date of the Initial Term or the applicable
Renewal Term the Licensee:
(i) provides to Transoft a signed purchase order confirming
acceptance of the Quote pursuant to Section 4.2 and other applicable terms; and
(ii)
pays to Transoft the Annual Fee applicable to the Renewal Term plus Sales Taxes,
if applicable;
Maintenance
be renewed and the terms of this Schedule B, as amended pursuant to Section 4.2
will apply to the Renewal Term.
4.4 No Acceptance. If:
(a)
The Licensee selected the Automatic Renewal Option and the Licensee gives
written notice to Transoft that the Licensee does not intend to renew Maintenance
within 30 days of delivery by Transoft of a Quote pursuant to Section 4.2(a), Maintenance
will not be renewed and the Maintenance will cease to be provided after the
Expiration Date; or
(b) The Licensee did not select the Automatic
Renewal Option and the Licensee has not complied with the provisions of Section
4.3(b)(i) and 4.3(b)(ii) within the applicable time
period, Maintenance will not be renewed and the Maintenance will cease to be
provided after the Expiration Date.
4.5 Exception. Notwithstanding Section
4.4, if no later than 90 days after the Expiration Date of the Initial Term or
Renewal Term, as applicable the Licensee:
(a) pays
to Transoft the Late Renewal Fee; and
(b) pays
to Transoft the Renewal Fee applicable to the Renewal Term (plus applicable
Sales Taxes);
Maintenance
will be renewed for a further term of a duration determined pursuant to Section
4.2(b), such term to commence one day after the Expiration Date of the
preceding Initial Term or Renewal Term, as applicable and the terms of this Schedule
B, as amended pursuant to Section 4.2 will apply to the Renewal Term.
4.6 New Term. If the Licensee does not
comply with the provisions of Sections 4.3 or 4.5 of this Schedule B, and the
Licensee requires the Services after 90 days from the Expiration Date, the
Licensee will request a Quote in accordance with Section 3.1 of this Schedule
B.
4.7 Termination by Transoft. Transoft
will have the right to terminate Maintenance:
(a)
Immediately upon written notice on expiration or termination of the SLA;
(b)
Immediately upon written notice at any time if:
(i) the Licensee is in material breach of any warranty,
term, condition or covenant of the Licensee pursuant to this Schedule B and
fails to cure that breach within 5 days after written notice of that breach and
of Transoft’s intention to terminate;
(ii)
the Licensee:
(A)
becomes insolvent;
(B)
fails to pay its debts or perform its obligations in the ordinary course of
business as they mature;
(C)
admits in writing its insolvency or inability to pay its debts or perform its
obligations as they mature; or
(D)
becomes the subject of any voluntary or involuntary proceeding in bankruptcy,
liquidation, dissolution, receivership, attachment or composition or general
assignment for the benefit of creditors that is not dismissed with prejudice
within thirty (30) days after the institution of such proceeding.
Termination
under paragraph 4.7(b)(i) above will in the absence
of a cure become effective automatically upon expiration of the cure period set
out in the applicable paragraph. Termination under subsection 4.7(b)(ii) will
become effective immediately upon written notice of termination at any time
after the specified event or the failure of the specified proceeding to be
timely dismissed.
4.8 Termination by Licensee. If during
a term of the SLA (the “SLA Term”) and during the Maintenance Term, Transoft is
unable to resolve a technical issue within 60 days of a request from the
Licensee pursuant to the terms of this Schedule B, the Licensee may on written
notice to Transoft terminate Maintenance, and if the Licensee elects to
terminate in accordance with this Section 4.8:
(a) The Licensee will have no further rights
pursuant to this Schedule B, provided that the provisions of the SLA will
remain in full force and effect; and
(b)
Transoft will provide to the Licensee that amount which is equal to the Annual
Fee multiplied by the number of days left in the applicable Initial Term or
Renewal Term and divided by the total number of days of the applicable Initial
Term or Renewal Term, less an administration fee of $100, or an equivalent
amount in the currency applicable to the invoice issued by Transoft to
Licensee, converted from Canadian dollars at the average exchange rate of the
previous year as determined by the Bank of Canada, rounded to the nearest
integer.
4.9 Obligations on Termination. Upon
termination of Maintenance the Licensee will immediately pay to Transoft any
amounts owing to Transoft by the Licensee pursuant to the terms of this Schedule
B.
4.10 Consequences
of Termination or Non-Renewal. Upon
termination of Maintenance, or upon failure to renew prior to the Expiration
Date,
(a) the
Licensee will no longer be eligible to receive Maintenance Services or
Technical Product Support and Transoft will not be obliged to provide any
Maintenance Services or Technical Product Support to Licensee. Any request for Technical Product Support from
a Licensee who has either terminated Maintenance, or failed to renew prior to
the Expiration Date, will be treated as a request for Supplemental Services, as
defined in Section 2.3;
(b) requests
received within 90 days of the Expiration Date for access to software upgrades
issued during Maintenance Term, for which fees were received, but which
upgrades were not installed, will be subject to an administrative fee of $100,
converted from Canadian dollars at the average exchange rate of the previous
year as determined by the Bank of Canada, rounded to the nearest integer; and
(c) requests
received after 90 days from the Expiration Date for access to software upgrades
issued during the Maintenance Term, for which fees were received, but which
upgrades were not installed, will be subject to fees for upgrading at current
prices.
4.11 Suspension
of Maintenance Services and Technical Product Support. If the Licensee has
not made the payment of the Annual Fee or Renewal Fee by the date indicated on
the Quote, or the subsequent related invoice, whichever is later, Transoft
shall have the right to suspend provision of Maintenance Services and Technical
Product Support until such time as payment, including accrued interest has been
received.
5.0
COVENANTS OF THE LICENSEE
5.1 Licensee Cooperation. In order to
enable Transoft to provide the Services and Additional Services, the Licensee
will use reasonable efforts to provide all information, answer questions, and
do all such things as are required to enable Transoft to replicate a problem.
5.2 Address
details. Licensee shall be obliged to provide a valid email address to
Transoft for delivery of new versions and updates, and to provide updated
address details to Transoft should Licensee’s email address change. Transoft
shall be entitled to rely upon the accuracy of the email address and updates
provide by Licensee.
6.0
ACKNOWLEDGEMENT AND DISCLAIMER
6.1 Acknowledgement. The Licensee
acknowledges and agrees that the Services and Additional Services are provided
“as is” and Transoft makes no warranty, representation or guarantee, expressed
implied or statutory, with respect to the Services whether as to the accuracy,
reliability, suitability, function, absence of errors, or otherwise whatsoever.
6.2 Disclaimer. In no event will
Transoft or its affiliated companies, directors, employees, or contractors (the
"Representatives") be liable for any damages or for any loss whether
caused or alleged to be caused directly or indirectly by the Services including,
but not limited to, any interruption of service, loss of business or
anticipated profits, loss of goodwill, loss of data, computer failure, lost
savings, or incidental, special, punitive or consequential damages resulting
from the Services even if caused by the negligence of Transoft and even if
Transoft had the knowledge of the possibility of such liability, loss, or
damage.
6.3 Limitation. Without limiting the
generality of Sections 6.1 and 6.2 of this Schedule B, under no circumstances
will Transoft become responsible for any costs, payments, claims or damages,
other than to make payment in accordance with Section 4.8(b) of this Schedule B.
7.0
GENERAL
7.1 SLA. The terms of this Schedule B are
in addition to the terms of the SLA and will not amend or replace the SLA. If
there is any discrepancy between the terms of this Schedule and the terms of
the SLA, the terms of the SLA will prevail.
7.2 No Amendment. The terms of this Schedule
B will supersede the terms of any Purchase Order signed by the Licensee.
7.3 Notice. Any notice required or
permitted to be given under this Schedule B will be in writing, and be
delivered to the address first above written or such other address as the parties
may, from time to time, designate. Notice will be delivered by personal
delivery, courier, registered mail, or via confirmed electronic mail. The
delivery of a notice will be deemed effective upon receipt, if delivered
personally or by courier, or five (5) business days from sending, if delivered
by registered mail or immediately upon acknowledged receipt by the recipient if
delivered by electronic mail.
7.4 No Waiver. No waiver by any party
hereto of any breach of any covenant, representation, warranty, proviso,
condition or stipulation herein contained whether express or implied or
negative or positive in form by any other party hereto will have any effect or
be binding upon any party hereto unless same will be in writing and under the
authority of such party, and any waiver whatsoever will extend only to the
particular breach so waived, and will not limit or affect the right of any
party with respect to any other or further breach.
SCHEDULE
“C”
Part 1 – Americas
countries, territories or geographic areas
|
Antigua and Barbuda Argentina Bahamas Barbados Belize Bolivia Brazil Canada Chile Colombia Costa Rica Cuba Dominica Dominican Republic El Salvador Ecuador Grenada Guatemala Guyana Haiti Honduras Jamaica Mexico Nicaragua Panama Paraguay Peru Saint
Kitts and Nevis Saint
Lucia |
Saint
Vincent and the Grenadines Suriname Trinidad
and Tobago United
States of America (USA) Uruguay Venezuela |
And
the following dependent territories: Anguilla (UK) Aruba (Netherlands) Bermuda (UK) Bonaire (Netherlands) British Virgin Islands
(UK) Cayman Islands (UK) Clipperton Island (France) Curacao (Netherlands) Falkland Islands (UK) French Guiana (France) Greenland (Denmark) Guadeloupe (France) Martinique (France) Montserrat (UK) Navassa Island (USA) Puerto Rico (USA) Saba (Netherlands) Saint Barthelemy (France) Saint Martin (France) Saint Pierre and Miquelon
(France) Sint Eustatius (Netherlands) Sint Maarten (Netherlands) South Georgia and the
South Sandwich Islands (UK) Turks and Caicos Islands
(UK) US Virgin Islands (USA) |
Part 2 -
APAC countries
Australia
Bangladesh
Bhutan
Brunei
Cambodia
China
(People’s Republic of)
Cook
Islands
Fiji
India
Indonesia
Japan
Kiribati
Laos
Malaysia
Maldives
Marshall
Islands
Micronesia
(Federated States of)
Mongolia
Myanmar
Nauru
Nepal
New
Zealand
Niue
Pakistan
Palau
Papua
New Guinea
Republic
of China (Taiwan)
Philippines
Samoa
Singapore
Solomon
Islands
South
Korea
Sri
Lanka
Thailand
Timor-Leste
Tonga
Tuvalu
Vanuatu
Vietnam
And the Territories of France
known as French Polynesia and New Caledonia
*
North Korea is currently prohibited and is not included within APAC or any
other Zone
Without
limiting the generally applicable prohibitions set out in Section 8 of this
License Agreement the following countries are excluded from APAC for purposes
of this License: North Korea
And
no rights are granted for use of the Software in these excluded countries
Part 3
– EMEA countries or geographic regions
|
Albania |
|
Algeria |
|
Andorra |
|
Angola |
|
Austria |
|
Bahrain |
|
Belarus |
|
Belgium |
|
Benin |
|
Bosnia and Herzegovina |
|
Botswana |
|
Bulgaria |
|
Burkina Faso |
|
Burundi |
|
Cameroon |
|
Cape Verde |
|
Central African Republic |
|
Chad |
|
Comoros |
|
Croatia |
|
Cyprus |
|
Czech Republic |
|
Democratic Republic of
the Congo |
|
Denmark |
|
Djibouti |
|
Egypt |
|
Equatorial Guinea |
|
Eritrea |
|
Estonia |
|
Ethiopia |
|
Faroe Islands |
|
Finland |
|
France |
|
Gabon |
|
Gambia |
|
Georgia |
|
Germany |
|
Ghana |
|
Gibraltar |
|
Greece |
|
Guernsey |
|
Guinea |
|
Guinea-Bissau |
|
Hungary |
|
Iceland |
|
Ireland |
|
Isle Of Man |
|
Israel |
|
Italy |
|
Ivory Coast (Cote
D’Ivoire) |
|
Jersey |
|
Jordan |
|
Kenya |
|
Kuwait |
|
Latvia |
|
Lebanon |
|
Lesotho |
|
Liberia |
|
Libya |
|
Liechtenstein |
|
Lithuania |
|
Luxembourg |
|
Macedonia |
|
Madagascar |
|
Malawi |
|
Mali |
|
Malta |
|
Mauritania |
|
Mauritius |
|
Moldova |
|
Monaco |
|
Montenegro |
|
Morocco |
|
Mozambique |
|
Namibia |
|
Netherlands |
|
Niger |
|
Nigeria |
|
Norway |
|
Oman |
|
Palestine |
|
Poland |
|
Portugal |
|
Qatar |
|
Romania |
|
Rwanda |
|
San Marino |
|
Sao Tome & Principe |
|
Saudi Arabia |
|
Senegal |
|
Serbia |
|
Slovakia |
|
Slovenia |
|
South Africa |
|
Spain |
|
Sudan |
|
Swaziland |
|
Sweden |
|
Switzerland |
|
Tanzania |
|
Togo |
|
Tunisia |
|
Turkey |
|
Uganda |
|
Ukraine |
|
United Arab Emirates |
|
United Kingdom |
|
Vatican City |
|
Western Sahara |
|
Yemen |
|
Zambia |
|
Zimbabwe |
But “EMEA” expressly excludes any of the dependent territories that are included in the
list of countries, territories or geographic areas included within “Americas”
set out in Part 1 of this Schedule “C” and the territories of France known as
French Polynesia and New Caledonia included within “APAC” set out in Part 2 of
this Schedule “C”. Without limiting the
generally applicable prohibitions set out in Section 8 of this License
Agreement the following countries, territories or geographic areas are excluded from EMEA or any other Zone for purposes of this License: Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen and no rights are
granted for use of the Software in these excluded countries, territories or
geographic areas.
SCHEDULE “D”
PRIVACY POLICY
Introduction
Transoft Solutions Inc. together with its subsidiaries and affiliates (collectively,
“Transoft”) is committed to protecting the personal data
You share with Transoft. This privacy policy describes Transoft’s policies and
practices in respect of the collection, use, processing and disclosure of
personal data.
Acceptance of this privacy policy
All customers, prospective customers, subscribers, users and other
visitors to our website are expected to carefully read this privacy policy. If
you as a customer, prospective customer, subscriber, user or other visitor to
our website do not agree with this privacy policy, you should refrain from
providing any personal data to us. We reserve the right to change our privacy
policy as we consider necessary from time to time and otherwise in compliance
with applicable privacy laws. Continued use of Transoft’s website, products and
services after having been informed of this privacy policy or any such changes
to our privacy policy implies acceptance of this privacy policy and changes to
it.
Guiding
Principles
This privacy
policy reflects our commitment to comply with;
· Personal
Information Protection Act (PIPA - BC),
· Personal
Information Protection & Electronic Document Act (PIPEDA - ON),
· General Data
Protection Regulation, (GDPR - EU)
· Data Protection
Act (DPA -UK)
·
Australia’s Privacy Principles
(APP - AU)
· Brazilian
Internet Act (BR)*
· Information
Technology Act (IN),
· California Online
Privacy Protection Act (CalOPPA - US), and
· any other
relative legislation related to the collection, storage, destruction, use and
distribution of personal data which apply to Transoft and its operations.
Transoft’s objective is to implement and maintain appropriate technical,
security and organizational measures to protect personal data against
unauthorized or unlawful processing and use, and against accidental loss,
destruction, damage, theft or disclosure.
In particular, to achieve this goal
Transoft aims to ensure that personal data is:
(a) processed lawfully, fairly and in
a transparent manner in relation to the individual (data subject) ('lawfulness, fairness and transparency');
(b) collected for specified, explicit
and legitimate purposes and not further processed in a manner that is
incompatible with those purposes; However, further processing for archiving
purposes in the public interest, scientific or historical research purposes or
statistical purposes may not be considered to be incompatible with the initial
purposes ('purpose limitation');
(c) adequate, relevant and limited to
what is necessary in relation to the purposes for which they are processed ('data minimization');
(d) accurate and,
where necessary, kept up to date; in this regard we will take reasonable steps
to ensure that personal data that are inaccurate, having regard to the purposes
for which they are processed, are erased or rectified without delay ('accuracy');
(e) kept in a form which permits
identification of data subjects for no longer than is necessary for the
purposes for which the personal data are processed; personal data may be stored
for longer periods insofar as the personal data will be processed solely for
archiving purposes in the public interest, scientific or historical research
purposes or statistical purposes subject to implementation of the appropriate
technical and organizational measures required by applicable laws and
regulations in order to safeguard the rights and freedoms of the individual
(data subject) ('storage limitation'); and
(f) processed in
a manner that ensures appropriate security of the personal data, including
protection against unauthorized or unlawful processing and against accidental
loss, destruction or damage, using appropriate technical or organizational
measures ('integrity and confidentiality').
Definitions
For the purposes of this policy, certain words and phrases used have
meanings given to them as follows:
· “personal data” means any information
relating to an identified or identifiable natural person ('data subject'). In
this regard, an identifiable natural person is someone who can be identified,
directly or indirectly, in particular by reference to an identifier such as a
name, an identification number, location data, an online identifier or to one
or more factors specific to the physical, physiological, genetic, mental,
economic, cultural or social identity of that natural person. This information
can include an individual’s identification card, passwords, medical
information, family history, opinions or beliefs, as well as facts about or
related to the individual.
· 'biometric data' means personal data resulting from specific technical processing
relating to the physical, physiological or behavioural
characteristics of a natural person, which allow or confirm the unique
identification of that natural person, such as facial images or dactyloscopic data (e.g. fingerprints);
· 'consent' of the data subject means any
freely given, specific, informed and unambiguous indication of the data
subject's wishes by which he or she, by a statement or by a clear affirmative
action, signifies agreement to the processing of personal data relating to him
or her;
· 'controller' means the natural or legal
person, public authority, agency or other body which, alone or jointly with
others, determines the purposes and means of the processing of personal data;
· 'data concerning health' means personal data related to the
physical or mental health of a natural person, including the provision of
health care services, which reveal information about his or her health status;
· “data subject” means an identified or
identifiable natural person.
· 'genetic data' means personal data relating to the inherited or acquired
genetic characteristics of a natural person which give unique information about
the physiology or the health of that natural person and which result, in
particular, from an analysis of a biological sample from the natural person in
question;
· 'personal data breach' means a breach of security leading to
the accidental or unlawful destruction, loss, alteration, unauthorized
disclosure of, or access to, personal data transmitted, stored or otherwise
processed;
· 'processing' means any operation or set of operations which is performed on
personal data or on sets of personal data, whether or not by automated means,
such as collection, recording, organization, structuring, storage, adaptation
or alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination,
restriction, erasure or destruction;
· 'processor' means a natural or legal person, public authority, agency or
other body which processes personal data on behalf of the controller;
· 'recipient' means a natural or legal person, public authority, agency or
another body, to which the personal data are disclosed, whether a third party
or not.
· “restriction of processing” means the marking of stored personal
data with the aim of limiting their processing in the future.
Consent:
Transoft’s policy
is to obtain prior consent from the data subject to the collection, use,
processing or disclosure of personal data, except where otherwise required or
permitted by law. Our goal is to request consent in an intelligible and easily
accessible form, using clear and plain language in an intelligible and easily
accessible form, using clear and plain language.
Consent may be
express or implied, depending on the circumstances. When appropriate, the written consent of the
individual (data subject) will be requested (i.e. by mail, email or fax or
other electronic means). If the consent
is given in the context of a written declaration or form which also concerns
other matters, the request for consent will be presented in a manner which is
clearly distinguishable from the other matters, in an intelligible and easily
accessible form, using clear and plain language. Sometimes, an individual's
consent may be obtained verbally or implied through his or her conduct or
dealings with Transoft.
Transoft
generally does not require an individual to consent to collection, use,
processing or disclosure of personal data as a condition of the provision of a
product or service, beyond that which is necessary to provide the product or
service or processing is necessary for the performance of a contract to which
the individual (data subject) is party or in order to take steps at the request
of the individual (data subject) prior to entering into a contract. However,
some personal data may be requested that is optional for an individual to
provide in order to improve the user experience or to help Transoft improve the
products or services it offers and provides.
Transoft may
collect, use or disclose personal data without notice or consent only
where permitted or required by law.
Consent may be
varied or withdrawn at any time subject to legal limitations and reasonable
notice if required by law (without affecting the lawfulness of processing based
on consent before its withdrawal).
Transoft will advise the individual of any consequences of a variation
or withdrawal.
Collection and use
General
In order to provide services or information to its customers,
prospective customers, website visitors and others, Transoft collects certain
types of data from them. This section describes how data is collected and used
by Transoft.
The Personal Data We Collect:
Transoft collects
and retains only the personal data that is required to meet the purposes
identified by Transoft. Transoft is committed to collecting personal
data in a fair, open and lawful manner.
For this reason, Transoft does not indiscriminately collect personal
data.
The type of
personal data we may collect includes contact information (such as name, postal
address, email address, telephone or fax numbers, etc.) but we may from time to
time request a data subject to optionally provide demographic information or
product or service preferences or usage patterns.
When a data subject inquires about products or services or orders
products or services, or engages in activities such as downloading demos or
subscribing to online software services or software as a service, the data
subject may provide information such as name, company name, job title and
department, email, address, telephone and facsimile numbers, credit-card number
and other relevant data.
Transoft may also collect, record and analyze information of visitors to
its website. We may record your IP address and use cookies. Transoft may add
information collected by way of page view activity. Furthermore, Transoft may
collect and process any personal data that you volunteer to us in our website’s
forms, such as when you subscribe to a service or register a product. Such
personal data may comprise your IP address, first and last name, your postal
and email address, your telephone number, your job title, your areas of
interest, interest in Transoft’s products, and certain information about the
company you are working for (company name and address), as well as information
as to the type of relationship that exists between Transoft and yourself.
Our website also
provides for an easy way to contact us either by direct communication with us
or by electronic mail (e-mail address). If a data subject contacts us by e-mail
or via a contact form, the personal data transmitted by the data subject are
automatically stored. This personal data transmitted on a voluntary basis by a
data subject to us are stored for the purpose of processing or contacting the
data subject. There is no transfer of this personal data to third parties.
Transoft also gathers data about visits to the website, including
numbers of visitors and visits, Geo-location data, length of time spent on the
site, pages clicked on or where visitors have come.
This information is used by Transoft to identify its customers,
prospective customers, website visitors and others and provide or offer them
with products, support, services, mailings, conduct sales and marketing
actions, billing and to meet contractual obligations. It is completely optional
for customers, prospective customers, website visitors and others to engage in
activities or obtain services offered or provided by Transoft. Depending upon
the activity or service, some of the information that we ask a data subject to
provide is identified as mandatory and some as voluntary or optional. If the
data subject does not provide the mandatory data with respect to a particular
activity, the data subject may not be able to engage in that activity or
receive the applicable product or service or may not be able to fully benefit
from the product or service offered.
Transoft’s policy
is not to conduct processing of (a) personal data revealing racial or ethnic
origin, political opinions, religious or philosophical beliefs, or trade-union
membership, or (b) genetic data, biometric data for the purpose of uniquely
identifying a natural person, data concerning health or data concerning a
natural person's sex life or sexual orientation.
General Data and Information
Transoft’s
website collects a series of general data and information when a data subject
accesses the website. This general data and information are stored in the
server log files. Collected general data may include (a) the browser types and
versions used, (b) the operating system used by the accessing system, (c) the
website from which an accessing system reaches our website (so-called
referrers), (d) the sub-websites, (e) the date and time of access to the
Internet site, (f) an Internet protocol address (IP address), (g) the internet
service provider (ISP) of the accessing system, and (h) other similar data and
information that may be used in the event of attacks on Transoft’s website or
other information technology systems.
When using these
general data and information, Transoft does not draw any conclusions about the
data subject. On the contrary, this information is used to (1) help deliver the
content of Transoft’s website in the intended manner, (2) improve the content
of Transoft’s website as well as its advertisement and promotion, (3) improve
the performance of Transoft’s website or other information technology systems,
and (4) provide applicable law enforcement authorities with information
necessary for criminal prosecution in case of hacking or cyber-attack on
Transoft’s website or other information technology systems. Accordingly,
Transoft uses anonymously collected data and information for statistical
analysis with the aim of improving and protecting data security and our
operations and service offerings, and to improve protection for the personal
data we collect and process.
Cookies
Like many other
Internet sites and servers, Transoft’s website uses cookies. Cookies are small
text files that are stored in a computer system via an Internet browser. Many cookies
contain what is often called a cookie ID. A cookie ID is a unique character
string through which internet pages and servers can be identified and
recognized in connection with the specific Internet browser in which the cookie
was stored. This allows us to differentiate an individual browser of the data
subject from the Internet browsers of others and thus track the visit.
Through the use
of cookies, Transoft is able to make it easier for users to navigate and use
its website by not requiring a user to enter access data each time the website
is accessed because this is done by the website and the cookie stored on the
user’s computer system. In this way, cookies function as
your identification card and enable Transoft to record your passwords used on the
site, purchases and preferences. Cookies used by us cannot run programs or
deliver viruses to your computer.
Any individual
(data subject) may, at any time, prevent the setting of cookies through
Transoft’s website by means of adjusting the setting of the Internet browser
used. As well, cookies that have already been established may be deleted at any
time through virtually all widely used Internet browsers. However, If an
individual (data subject) deactivates the setting of cookies in the Internet
browser used, the functions of Transoft’s website may not be fully usable by or
available to that individual.
Identified Purposes:
Individuals (data
subjects) will be informed of the purposes for the collection, use or
disclosure of their personal data at or before the time the information is
collected. Our goal is that the purposes
will be those that a reasonable person would consider appropriate in the
circumstances and otherwise consistent with the guiding principles set out in
this privacy policy.
The primary purposes that Transoft collects and uses personal data is to
record and support products, services and participation in the activities you
select, to keep you informed about product upgrades, special offers,
announcements, learning opportunities and other products and services of
Transoft and to improve its website by analyzing how visitors navigate its
website.
Our aim is only
to conduct processing of personal data in compliance at all times with
applicable legal requirements and if and to the extent at least one of the
following applies:
(a)
the individual (data subject) has given consent to Transoft’s the
processing of his or her personal data for one or more specific purposes;
(b)
processing is necessary for the performance of a contract (such as
an end user license agreement, on-line subscription or maintenance assurance
program agreement) to which the individual (data subject) is party or in order
to take steps at the request of the individual (data subject) prior to entering
into a contract;
(c)
processing is necessary for compliance with a legal obligation to
which Transoft as the controller is subject;
Or in rare cases:
(d)
processing is necessary in order to protect the vital interests of
the individual (data subject) or of another natural person;
(e)
processing is necessary for the performance of a task carried out
in the public interest or in the exercise of official authority vested in
Transoft as the controller;
(f)
processing is necessary for the purposes of the legitimate
interests pursued by Transoft as the controller or by a third party, except
where such interests are overridden by the interests or fundamental rights and
freedoms of the individual (data subject) which require protection of personal
data,
If personal data is
to be used or disclosed for a purpose not identified at the time of collection,
individual consent will be obtained, where required by applicable law.
Sharing personal data
Transoft may also share such information with service vendors or
contractors in order to provide a requested service or transaction or in order
to analyze the visitor behavior on its website.
Limiting Use, Disclosure and Retention:
Transoft limits
its use or disclosure of personal data to the purposes for which it was
originally collected, unless it has first obtained the consent of the person
from whom such information was received, or as otherwise permitted or required
by law. Transoft retains personal
information only for as long as it is needed for the purposes for which it was
collected or used, or as otherwise required by law. The criteria used to
determine the period of storage of personal data is the respective statutory
retention period. After expiration of that period, the corresponding data is routinely
deleted, as long as it is no longer necessary for the fulfillment of the
contract or the initiation of a contract.
From time to time
Transoft may use a third party or a related entity to store or manage personal
data on our behalf. In such circumstances,
Transoft requires such service providers and related entities to protect, by
contract or other means, the personal data transferred to them by
Transoft. For Canada, such service
providers or related entities may from time to time process or store personal
data in countries other than Canada. In
this event, such personal data would be subject to the laws of such countries,
including those authorizing or requiring disclosure of information to
government authorities.
Accuracy:
Personal data is
maintained in as accurate, complete and up-to-date form as necessary for the
purpose for which it is collected, or where it is likely to be used to make a
decision about an individual or is likely to be disclosed to another
organization. Transoft does not routinely
update personal data and relies on the individual to advise it when his or her
personal data changes.
From time to
time, in its sole discretion, and for a reasonable and legitimate purpose,
Transoft may request written confirmation from an individual that the
information collected and held by Transoft is up to date and accurate.
Safeguards:
Personal data is
protected, by appropriate technical and organizational measures including
security safeguards appropriate to its sensitivity and level of risk, from
unauthorized access, collection, use, disclosure, copying, modification,
disposal or similar risks. Transoft’s security safeguards include:
• premises security;
• locked
file cabinets and secure faxes and photocopiers;
• restricted
access to personal information;
• technological
safeguards such as security software and authentication methods;
• secure destruction methods including
cross-cut shredding and the use of attestations of destruction;
• organizational
security measures
If Transoft uses the
services of any third parties to process personal data, Transoft will enter
into legal agreements that require the third party to protect the personal data
in a manner acceptable to Transoft and consistent with the protection provided
by Transoft.
Transoft also
ensures that any of its Employees who deal with personal data are properly
trained and are aware of the necessary and appropriate measures required to
protect personal data.
Individuals (data subjects) have has a
specific right to object to Transoft’s processing of their personal data if
Transoft:
· processes the
personal data based an exercise of official authority (including profiling);
· uses the personal
data for direct marketing (including profiling); or
· processes the
personal data for purposes of scientific/historical research and statistics.
Right to Restriction of Processing
Individuals (data subjects) have the
right to obtain from Transoft restriction of processing where one of the
following applies:
· the accuracy of
the personal data is contested by the individual for a period enabling Transoft
to verify the accuracy of the personal data;
· the processing is
unlawful and the individual opposes the erasure of the personal data and
requests the restriction of their use instead;
· Transoft no
longer needs the personal data for the purposes of the processing, but they are
required by the individual for the establishment, exercise or defence of legal claims;
· the individual
has objected to processing by means of automated decision-making pending the
verification whether the legitimate grounds of Transoft override those of the
individual.
Where processing has been restricted
in this regard such personal data shall, with the exception of storage, only be
processed with the individual’s consent or for the establishment, exercise or defence of legal claims or for the protection of the rights
of another natural or legal person or for reasons of important public interest
of an applicable governmental authority.
An individual who
has obtained restriction of processing pursuant to privacy policy be informed
by Transoft before the restriction of processing is lifted.
Right to Erasure
Individuals (data subjects) have the
right to obtain from Transoft the erasure of personal data concerning him or
her without undue delay and Transoft will erase personal data without undue
delay where one of the following grounds applies:
· the personal data
are no longer necessary in relation to the purposes for which they were
collected or otherwise processed;
· the individual
(data subject) has withdrawn his or her consent on which the processing is
based and where there is no other legal ground for the processing;
· the individual
(data subject) objects and has a legal basis for such objection and there are
no overriding legitimate grounds for the processing;
· the personal data
have been unlawfully processed; or
· the personal data
have to be erased for compliance with a legal obligation to which Transoft is
subject.
Notification regarding rectification or erasure of personal data or
restriction of processing
Transoft will communicate any rectification or
erasure of personal data or restriction of processing carried out in accordance
with this privacy policy (or otherwise as required by applicable law) to each
recipient to whom the personal data have been disclosed, unless this proves
impossible or involves disproportionate effort. Transoft will inform the
individual (data subject) about those recipients if the individual (data
subject) requests it.
Right to Object and Automated Individual Decision-Making
Individuals (data
subjects) have the right to refuse to be subjected to automated decision
making, including profiling and may insist on human intervention if the
decision is:
· Based on
automated processing; and
· Produces a legal
effect or a similarly significant effect on the individual.
Right to data portability
Individuals (data subjects) have the
right to receive the personal data concerning him or her, which he or she has
provided to Transoft, in a structured, commonly used and machine-readable
format and have the right to transmit those data to another controller without
hindrance from Transoft, where:
(a) the processing is based on consent
or on a contract with Transoft; and
(b) the processing is carried out by
automated means.
In exercising his
or her right to data portability pursuant to this privacy policy, the
Individuals (data subjects) have the right to have the personal data
transmitted directly from one controller to another, where technically
feasible.
The exercise of the right referred to
in this section shall be without prejudice to the rights of the individual for
erasure. That right shall not apply to processing necessary for the performance
of a task carried out in the public interest or in the exercise of official
authority vested in Transoft.
Our Legal Obligation to Disclose Personal
Information
We are permitted to disclose personal
information when we are legally required to do so or have good reason to
believe that this is legally required.
Exceptions Arising Under Law
Applicable law to
which the Transoft is subject may restrict the scope of the obligations and rights
provided for in this privacy policy when such a restriction respects the
essence of the fundamental rights and freedoms and is a necessary and
proportionate measure in a democratic society to safeguard:
(a)
national security;
(b)
defence;
(c)
public security;
(d)
the prevention, investigation, detection or prosecution of
criminal offences or the execution of criminal penalties, including the
safeguarding against and the prevention of threats to public security;
(e)
other important objectives of general public interest of governmental
authority having jurisdiction over Transoft in particular an important economic
or financial interest of the governmental authority, including monetary,
budgetary and taxation a matters, public health and social security;
(f)
the protection of judicial independence and judicial proceedings;
(g)
the prevention, investigation, detection and prosecution of
breaches of ethics for regulated professions;
(h)
a monitoring, inspection or regulatory function connected, even
occasionally, to the exercise of official authority in the cases referred to in
points (a), (b), (c), (d), (e) and (g);
(i)
the protection of the individual (data subject) or the rights and
freedoms of others;
(j)
the enforcement of civil law claims.
We may also reveal a user’s personal information without his/her prior
permission only when we have good reason to believe that the disclosure of this
information is required to establish the identity of, to contact or to initiate
legal proceedings against a person or persons who is/are suspected of infringing
rights or property belonging to Transoft or to others who could be harmed by
the user’s activities or of persons who could (deliberately or otherwise)
transgress upon these rights and property.
Openness and Communications:
Transoft will
make available information about Transoft’s policies and practices in respect
of management of personal data. This Transoft privacy policy is available on
our web site at http://transoftsolutions.com and can be accessed at any
time. A hard copy of this privacy policy
is also available at 350-13700 International Place, Richmond, British Columbia,
V6V 2X8, Canada.
In the case of a
personal data breach that is likely to result in a high risk to the rights and
freedoms of natural persons, in addition to any reporting obligations to
statutory authorities, Transoft will communicate the personal data breach to
the affected individual (data subject) without undue delay and otherwise as
required by applicable law. Such
communication, if applicable, will include at least the following
·
communicate the name and contact details of the Chief Privacy
Officer or other contact point where more information can be obtained;
·
describe the likely consequences of the personal data breach;
·
describe the measures taken or proposed to be taken by Transoft to
address the personal data breach, including, where appropriate, measures to
mitigate its possible adverse effects.
However, Transoft
may not be required to communicate to individuals in the event of a personal
data breach if any of the following conditions are met:
· Transoft has
implemented appropriate technical and organizational protection measures, and
that those measures were applied to the personal data affected by the personal
data breach, in particular those that render the personal data unintelligible
to any person who is not authorized to access it, such as encryption;
· Transoft has
taken subsequent measures which ensure that the high risk to the rights and
freedoms of individual (data subject) is no longer likely to materialize;
· it would involve
disproportionate effort. In such a case, Transoft may instead issue a public
communication or similar measure whereby the individuals (data subjects) are
informed in an equally effective manner.
Individual
Access:
Upon written
request, Transoft will inform an individual about how his or her personal data
in Transoft’s custody or control has been and is being used and disclosed,
including the names of individuals and organizations to whom the information
has been disclosed, and will give the individual access to the personal data,
subject to any limitations as permitted or required by law. Transoft authenticates the identity of the
person seeking access to personal data before providing access. In responding to an access request, Transoft
may charge a reasonable fee but no fee shall be charged for access to Employee
personal data.
Transoft will
take appropriate measures to provide any personal data relating to processing
to the individual (data subject) in a concise, transparent, intelligible and easily
accessible form, using clear and plain language. The information will be
provided in writing, or by other means, including, where appropriate, by
electronic means. When requested by the individual (data subject), the
information may be provided orally, provided that the identity of the
individual (data subject) is proven by other means.
Transoft will
facilitate the exercise of an individual’s rights legal rights to access
personal data collected and processed by Transoft.
Transoft may deny
access to personal data when required or authorized by law. Possible reasons for denying access to
personal data include, but are not limited to:
• where the disclosure may reasonably be
expected to threaten an individual’s safety or physical or mental health;
• where the information would reveal
third party personal information;
• where the information is protected by
solicitor-client privilege;
• where the information would reveal
confidential commercial information; or
• Transoft demonstrates that it is not
in a position or is no longer in a position to identify the individual (data
subject); and
·
other reasons as permitted or required by law.
Where the
information can be severed and the remaining personal data can be provided,
Transoft will do so. If Transoft is
unable to provide access to all of the personal data it holds about an
individual, then the reasons for the denial of access will be provided to the
individual.
Requests for
access to, or information about, personal data must be made in writing, either
to the Chief Privacy Officer or Privacy Officer via email to privacy@transoftsolutions.com or by postal
mail at the address below. Where the requester makes the request by electronic
form means, the information shall be provided by electronic means where
possible, unless otherwise requested by the requester. Upon receipt of a
request, Transoft will without undue delay advise the requester as to the steps
required to carry out the access request, including the method of
authenticating the individual’s identity and of any steps necessary to identify
the records or information sought. The time
to respond to a complete request is generally thirty (30) days, but may be
extended in limited circumstances as permitted or required by law. If Transoft extends the time for response we
will tell the requester the reason, the time when we expect to respond and his
or her rights under the associated law(s).
If Transoft does
not take action on the request, Transoft will inform the individual (data
subject) without delay and at the latest within one month of receipt of the
request of the reasons for not taking action and on the possibility of lodging
a complaint with an applicable supervisory authority and seeking a judicial
remedy.
Where Transoft has reasonable doubts
concerning the identity of the requester, Transoft may request the provision of
additional information necessary to confirm the identity of the requester.
Where requests are manifestly
unfounded or excessive, in particular because of their repetitive character,
Transoft may either:
· charge a
reasonable fee taking into account the administrative costs of providing the
information or communication or taking the action requested; or
· refuse to act on
the request.
Transoft will
bear the burden of demonstrating the manifestly unfounded or excessive
character of the request.
Transoft’s Data Protection Officer
The detailed contact information for
Transoft’s Chief Privacy Officer and data protection officer is as follows:
Chief Privacy Officer Privacy
Officer (Data Protection)
Transoft Solutions Inc. Transoft Solutions (Europe) BV
350-13700 International
Place Wijnhaven
60
Richmond, British
Columbia, Canada 3011 WS
Rotterdam
V6V 2X8
Requesting a Correction:
Individuals have
certain legal rights to obtain from Transoft without undue delay the
rectification of inaccurate personal data concerning him or her. In this
regard, an individual may challenge the accuracy of the personal data under
Transoft’s custody or control. Where an individual successfully demonstrates
that an error in the accuracy or completeness of their personal data exists,
Transoft will make any necessary amendments and if appropriate, advise any
third parties to whom the information was disclosed in the year prior to the
date the correction was made. Taking
into account the purposes of the processing, an individual will also have the
right to have incomplete personal data completed, including by means of
providing a supplementary statement.
If the correction
is not made, Transoft will annotate the information to show the challenge. Transoft will correct personal data when
advised to do so by an organization that disclosed the information to Transoft.
Challenging Compliance:
If you have any
questions about this Transoft privacy policy or have reason to believe that
Transoft may have failed to adhere to this privacy policy, you may contact our
Chief Privacy Officer listed above. We
will conduct an investigation without undue delay and work to resolve any
issues or concerns expressed.
Links to other sites
Please be aware that while visiting our site, visitors can follow links
to other sites that are beyond our sphere of influence. Transoft is not
responsible for the content or privacy policy of these other sites.
For Further Information
If you have any further questions regarding the data Transoft collects,
or how we use it, then please feel free to contact us by email at:
privacy@transoftsolutions.com, or in writing at:
Transoft Solutions Inc.
Attention: Chief Privacy officer
Suite 350 – 13700 International Place
Richmond, B.C. V6V 2X8
Canada
Version 6.1
Special Terms for BriskLUMINA
and BriskVANTAGE
The
following terms are incorporated into the Agreement between You and Transoft in
respect of the Software described in the invoice or quote issued by Transoft to
You, the terms and conditions of the software license agreement in respect of
such Software and all attached schedules and any amendments or addenda
(including this document):
Software as a Service. BriskLUMINA and BriskVANTAGE are
provided as Software as a Service under a limited term Subscription License,
with the Expiry Date for such license indicated in the date of the Quote or
Invoice for any BriskLUMINA or BriskVANTAGE
traffic study, whichever is later.
Data limits. Unless specifically otherwise agreed, data
for processing for BriskLUMINA traffic studies will
be limited to 100 hours of video per camera. BriskVANTAGE
data limits that are processed outside of Transoft’s servers are subject to any
data limits provided in the quotation or invoice.
Video Quality. You are
responsible for providing video of sufficient quality for analysis by
Transoft. Calibration and video quality
checks must be performed prior to primary video analysis is commenced. If the
system is yielding insufficient recognition or movement classification results,
Transoft may, in its sole discretion may provide support or advice to remedy
the issue. Processing of the video data should not be commenced until the video
quality and configuration is confirmed. Transoft makes no guarantee that video
received will be of sufficient quality to generate reliable analysis and bears
no liability in that regard. Failure by
You to provide video of sufficient quality will not automatically result in a
refund.
Camera setup. Where You are
setting up cameras to collect video of the intersection that is referenced in
the Invoice as the subject of the BriskLUMINA or BriskVANTAGE traffic study, the following criteria must be
adhered to. Failure to set up cameras
correctly may impair video quality and result in refusal by Transoft to process
such data.
1.
Vehicle-only studies: minimum video
resolution of 640x480;
2.
Pedestrian and/or cyclist studies:
minimum video resolution of 1280x720;
3.
Minimum frame rate of 15 frames per
second;
4.
Frame rate must be constant throughout
video collection period;
5.
Camera view must be unchanged throughout
collection period with regards to height and angle. Measures must be taken to prevent disturbance
by wind or from replacement of storage cards and/or batteries;
6.
Camera must be installed between a
minimum height of 6 metres and a maximum height of 10
metres (20 to 32 ft.) and angled to maximize capture
of the intersection and minimize sky.
Reprocessing Fees. If for any
reason Transoft must reprocess Your original video data after the initial
processing has been performed, additional fees will apply.
Data storage. Transoft may
store Your data and analysis on its servers in order to provide the service.
You may access Your data and analysis up to the subscription expiry date
(“Expiry Date”) indicated on the invoice, unless extended through renewal of
subscription, or otherwise separately and specifically agreed in writing. All data and analysis are only guaranteed to
be retained by Transoft for 30 days after the Expiry Date. If You wish to retrieve and/or reinstate any
such data and analysis, this service will be subject to a separate fee
comparable to renewal of Subscription.
Ownership of data. All video data
supplied by (or on behalf of) You shall remain Your property. All analysis and any reports generated by
Transoft concerning such data including annotated video segments are provided
to You under license and are Yours to download and retain and use in
perpetuity. Unless otherwise agreed,
Transoft may use Your data to train its system and enhance the quality of
analysis provided. All Intellectual
Property developed by Transoft and employed in the provision of analysis to You
will remain the inalienable property of Transoft.
No liability for external reports. Transoft
bears no responsibility for recommendations made by external engineers or other
professional service providers (“Specialists”) in any reports procured by
Transoft on Your behalf. Transoft’s role
in procurement of such Specialists’ reports is purely as an agent. All opinions and recommendations made by such
Specialists are made in their own professional capacity and any liability
arising from such opinion and recommendations shall remain solely with such
Specialists. Transoft bears no liability
for any such opinions or recommendations and makes no warranty therefor. You fully indemnify Transoft for any and all
claims that may arise as a result of You implementing any recommendations made
by such Specialists, whether directly or indirectly and regardless of whether
such recommendations were made negligently.