Software Resale and Services Terms and Conditions
Last updated January 10th, 2017
These Software Resale and Service Terms and Conditions (“Terms” or this “Agreement”) govern the purchase of software or services by the purchaser (“you”, “your”, “Purchaser” and terms of similar meaning) from Pavliks Group Inc. o/a pavliks.com (“pavliks.com”, “we”, “us” and terms of similar meaning) made pursuant to a submitted Purchase Order (“Order”).
The Order is automatically deemed to include all the terms and conditions of these Terms; provided that whenever the provisions of the Order expressly conflict with these Terms, the conflicting provisions of the Order control and shall take precedence over the conflicting provisions of these Terms, but only where the Order explicitly states that it is intending to supersede these Terms for that provision.
1. ORDER ACCEPTANCE
Upon submission of an Order by the Purchaser, pavliks.com shall have a period of ten (10) days to accept such Order. You may cancel or amend your Order at any time prior to acceptance by pavliks.com.
2. PURCHASED PRODUCTS AND SERVICES
Software products (“Software”) license through pavliks.com are owned by the applicable licensors of such Software and are subject to third party license terms as further described in the Order (“Third Party Licenses”).
The Software may permit users to upload or store content (“User Content”). Your User Content is your responsibility. We have no responsibility or liability for your User Content, or for any loss or damage your User Content may cause to you or other people. You are solely responsible for maintaining copies of and replacing any User Content. Please read the Third Party Licenses to understand how the third party providers of Software may store and maintain your User Content.
Services provided by pavliks.com pursuant to the Order (“Services”) shall be performed in a timely, diligent and professional manner, in accordance with all applicable laws, rules and regulations, and in accordance with all generally accepted industry standards applicable to the provision of similar services. Maintenance, support and training services shall be described in the Order. The provision of Software licenses, maintenance, support and training services shall be deemed to be Services for the purposes of these Terms.
3. FEES, CHARGES & TAXES
Fees and other charges for the goods and services ordered are described on the Order. Fees for Services may change from time to time. If your fees change, we will give you at least thirty (30) days’ notice. If they do change, your continued use of the Services after the change indicates your agreement to the new fees and charges after the effective date of the change. Any change to fees and other charges will not be applicable to the billing period in which the change occurs or to any prepaid subscription periods.
For Services offered on a payment or subscription basis, the following terms apply if you are the user paying for the Services, unless pavliks.com notifies you otherwise in writing:
- Payments will be billed to you in Canadian dollars, and your account will be debited when the Order is accepted unless stated otherwise in the Order;
- You must pay with one of the following:
- A valid credit card acceptable to pavliks.com;
- Cheque or wire transfer; or
- By another payment option pavliks.com provides to you in writing.
- Payments made by credit card may be subject to an additional transaction fee from time to time.
- If your payment information is not accurate, current, and complete and you do not notify us promptly when such information changes, we may suspend or terminate one or more of the Services provided (including but not limited to any Software licenses).
- If you do not notify us of updates to your payment method (e.g. credit card expiration date), to avoid interruption of your use of Services, we may participate in programs supported by your card provider (e.g. updater services, recurring billing programs, etc.) to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
You are responsible for all taxes applicable to the fees and charges in any applicable jurisdiction.
Generally, fees will be invoiced one month in advance. Such invoices shall be paid within thirty (30) days of receipt. Invoices that are unpaid within thirty (30) days of receipt shall accrue interest of 2% per month (24% per year).
If the credit card or other payment method on your account is declined or fails for any reason, pavliks.com will use reasonable efforts to contact you and advise you of the failed billing attempts. Notwithstanding the foregoing, pavliks.com reserves the right to terminate the Services if your credit card on file is declined or fails for any reason.
OTHER THAN AS DESCRIBED IN THESE TERMS, THE SOFTWARE AND SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS WITHOUT WARRANTIES FROM PAVLIKS.COM OF ANY KIND, EITHER EXPRESS OR IMPLIED. PAVLIKS.COM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PURPOSE, TITLE AND NON-INFRINGEMENT. PAVLIKS.COM DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, AND EXPRESSLY DISCLAIMS AND WARRANTY OR REPRESENTATION AS TO THE ACCURACY OR PROPRIETARY CHARACTER OF THE SOFTWARE OR SERVICES OR ANY PORTION THEREOF.
You are encouraged to review the Third Party Licenses to determine if warranties are provided by the licensor of such Software. Such warranties (if any) are provided directly from the Licensor and pavliks.com shall not have any responsibility to aid in any warranty claims.
5. LIMITATION OF LIABILITY; INDEMNITY
You waive and shall not assert any claims or allegations of any nature whatsoever against pavliks.com, its affiliates or subsidiaries, their contractors, vendors or other partners, any of their successors or assigns, or any of their respective officers, directors, agents or employees (collectively, the “Released Parties”) arising out of or in any way relating to your use of the Services, including, without limitation, any claims or allegations relating to the alleged infringement of proprietary rights, alleged inaccuracy of the Software, or allegations that any Released Party has or should indemnify, defend or hold harmless you or any third party from any claim or allegation arising from your use or other exploitation of the Software or Services. You use the Software and/or Services at your own risk.
Without limitation of the foregoing, neither pavliks.com nor any other Released Party shall be liable for any direct, special, indirect or consequential damages, or any other damages of any kind, including but not limited to loss of use, loss of profits or loss of data, whether in an action in contract, tort (including but not limited to negligence) or otherwise, arising out of or in any way connected with the use of the Services, including without limitation any damages caused by or resulting from your reliance on the Services or other information obtained from pavliks.com or any other Released Party, or that result from mistakes, errors, omissions, interruptions, deletion of User Content or other data, defects, viruses, delays in operation or transmission or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction or unauthorized access to pavliks.com, any user, or any other Released Party's records, programs or services.
In no event shall the aggregate liability of pavliks.com, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the Services exceed any amount paid by you for such Services during the three months prior to the date of any claim, if any.
You shall defend, indemnify and hold harmless pavliks.com and the other Released Parties from any loss, damages, liabilities, costs, expenses, claims and proceedings arising out of your use of the Services and from the use of the Services by any person to whom you give access to your account.
6. SERVICE TERM AND TERMINATION
6.1. Service Term
Your license to the Software and/or receipt of Services is provided for a term specified in your Order (“Term”). The initial Term begins on the date that the Order is executed (“Date of Purchase”). Upon completion of the initial Term, your license to the Software and/or receipt of the Services shall continue on a month-to-month basis, at the then current rates, until terminated in accordance with these Terms.
If these Terms expire or terminate for any reason, Sections 4, 5, 6, 7, and 8, and any representation or warranty you make in these Terms, shall also survive indefinitely.
6.2. Termination or Discontinuance of Licenses and/or Services
- During the initial Term, either party may terminate the Services if the other party commits a material breach and the breach is not cured within ninety (90) days of receipt of a written notice.
- pavliks.com may suspend or terminate the licenses to Software and/or Services immediately if (i) you fail to make any payment when due; (ii) you declare bankruptcy or are adjudicated bankrupt; (iii) a receiver or trustee is appointed for you or substantially all of your assets; or (iv) your licenses to the Software were suspended or terminated by one or more the third party licensors of the Software.
- after the initial Term, either party may terminate one (1) or more of the Services by providing the other party with thirty (30) days prior written notice.
6.3. Early-Cancellation Fee (ECF)
If you wish to terminate your licenses to the Software and/or any Services during the initial Term or without the requisite amount of notice or pavliks.com terminates your licenses to one (1) or more of the Services for the reasons described in Section 6.2 (a) and (b) above, then upon termination, you will be responsible for an early cancellation fee equal to the following:
During the initial Term – the applicable monthly fees multiplied by the number of remaining months
After the initial Term – the applicable monthly fees for the month in which the termination occurs and for one (1) month after.
For greater certainty, termination of licenses to Software and/or Services that are billed on a month-to-month basis shall not incur any early-cancellation fees.
8.1. Entire Agreement
These Terms and the Order constitute the entire agreement between you and pavliks.com and govern the license of Software and/or use of Services by you or those who may use the Services that you have ordered. This Agreement supersedes any prior agreements between you and pavliks.com and any and all prior contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
8.2. Governing Law and Arbitration
This Agreement is governed by and construed in accordance with the laws of the Province of Ontario and the federal laws applicable therein. The parties shall refer all disputes between the parties in relation to this Agreement to the arbitration of a single arbitrator with experience in software and technology services, if the parties agree upon one, otherwise to three arbitrators with the same experience, one to be appointed by each party and a third to be chosen by the first two named before they enter upon the business of arbitration. The arbitration shall occur in Toronto, Ontario, Canada. The award and determination of the arbitrator or arbitrators or any two of the three arbitrators is binding upon the parties and their respective heirs, executors, administrators and assigns.
Notices under this Agreement shall be in writing, addressed to the party at its last-provided address, and shall be deemed given when delivered personally, or by e-mail (with confirmation of receipt) or conventional mail (registered or certified, postage prepaid with return receipt requested).
8.4. Force Majeure
Notwithstanding any other provision herein contained, neither party shall be liable to the other for delays in the performance of or completion of this Agreement if such delay is caused by strikes, earthquakes, riots, wars, government regulations, acts of God, fire, flood or other similar causes beyond its control.
If any provision of this Agreement shall be declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect.
8.6. No Waiver
All waivers of any rights or breach hereunder must be in writing to be effective, and no failure to enforce any right or provision shall be deemed to be a waiver of the same or other right or provision on that or any other occasion.
8.7. Assignment; Enurement.
Neither party may assign or otherwise transfer its rights and/or obligations under this Agreement without the prior written consent of the other party, provided however, that Pavliks.com shall be entitled to assign the benefit of this agreement to any related entity, successor or purchase of the pavliks.com’s business on notice to the customer. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
8.8. Class Action
Neither party shall be entitled to join or consolidate claims or pursue any claim as a representative or class action.
8.9. French Language
The parties confirm that it is their express wish that this agreement, as well as any other documents relating to this agreement, including notices, schedules and authorizations, have been and shall be drawn up in the English language only. Les parties confirment qu'il est leur volonté expresse que cet accord, ainsi que les autres documents relatifs à cet accord, y compris les avis, les horaires et les autorisations, ont été et doivent être rédigés dans la langue anglaise seulement.
8.10. Export Controls
You agree to comply fully with all relevant export laws and regulations of Canada, and without limiting the generality of the foregoing, you expressly agree that you shall not export, directly or indirectly, re-export, divert or transfer any portion of the Services or any direct product thereof to any destination, company or person restricted or prohibited by such laws or regulations.
8.11. Future Changes to this Agreement
pavliks.com reserves the right to change or modify any of the terms and conditions contained in these Terms, or any policy or guideline applicable to the license of Software or the Services, at any time and in its sole discretion. If we do so, we will notify you by posting a notice on the pavliks.com website. If you do not agree with the changes, you may terminate your agreement with us in accordance with these Terms. Unless otherwise specified, any changes or modifications will be effective immediately upon posting of the revisions on pavliks.com website, and your continued use of the Software and/or Services after such time will constitute your acceptance of such changes or modifications. You should from time to time review the Terms and any policies and documents incorporated in them to understand the terms and conditions that apply to your use of the Software and/or Services. The Terms will always show the ‘last updated’ date at the top. If you have any questions about the Terms, please email us at the contact address below.
If you have any questions regarding this Agreement or your use of the Services, please contact us here: