BusinessBuilder Software Inc. ("BBSI")
Software License Agreement
PLEASE READ THIS DOCUMENT
CAREFULLY. YOU HAVE AGREED TO THE TERMS OF THESE TWO AGREEMENT BY CLICKING ON THE
"ACKNOWLEDGE" BUTTON CONTAINED IN THE BusinessBuilderTM SOFTWARE.
1. End User Licensing Agreement (EULA) -
The first agreement outlines your terms of usage for the software and its contents. It is between you, the End User and BBSI, the owner of the software.
2. Guarantee -
This agreement outlines the terms and conditions that relate to the ROI Guarantee offered through ShopProsTM.
This is a legal agreement
between you (the end user) and BusinessBuilder Software Inc. ("BBSI"). This
Software License Agreement states the terms and conditions upon which BBSI
offers to license the software together with all related documentation and
accompanying items including, but not limited to, the executable programs,
drivers, libraries and data files associated with such programs (collectively,
you, the end user as Licensee desire to license certain
software programs owned by BBSI as Licensor for Licensee's own internal use;
Licensor is willing to grant Licensee such a license,
subject to the terms and conditions of this Agreement.
In consideration of the license fees to be paid
hereunder and for other good and valuable consideration, the parties agree as
OF LICENSE. Licensor grants to Licensee and Licensee accepts, on the terms and
conditions set forth herein, a nontransferable, nonexclusive right to use the
software program identified on the attached Schedule 1 ("the
Program") and any accompanying end user documentation (the
"Documentation"; the Program and the Documentation are collectively
referred to herein as the "Software"). Access to the Program licensed
under this Agreement may only be accessed on one computer at a time, and the
Program may only be accessed by the number of users for which Licensee has paid
a license fee. Additional Software may be added to this Software License
Agreement through additional Schedules approved by both Licensor and Licensee.
AND PAYMENT. Licensor shall supply access to the Software listed on Schedule 1
and Licensor will invoice Licensee for the License Fees indicated thereon.
License Fees are exclusive of any federal, state, provincial or
local taxes, including any VAT or other withholdings, imposed on this
transaction, the License Fees, or on Licensee's use or possession of the
Software, all of which shall be paid by Licensee without deduction from the
Licensee agrees to pay any invoice in full within 10 days of
All prices and payments are in U.S. dollars unless otherwise
OF THE SOFTWARE.
Restrictions on Use . The license granted by Licensor to
Licensee to use the Software is subject to the following restrictions:
The Software may be used only by Licensee for its internal
business purposes and only for the direct benefit of Licensee.
The Software may be used at any point in time only by the number
of locations for whom a license fee has been paid, as specified on Schedule 1;
all such use may only be by those persons using the Software for the benefit of
Licensee in the course and scope of their employment.
3.1.3 User Access and Roles – Each licensee may allow use by its employees in accordance with the roles and access rights assigned by an authorized coach or administrator.
Licensee shall use the Software only in its original form, and
shall not modify, reverse compile, reverse engineer, disassemble, or translate
the Software, except to the extent necessary to permit interoperability between
the Software and other software programs, nor shall Licensee create any
derivative works or otherwise use the Software except as specifically permitted
in this Agreement.
Licensee shall not rent, lease, sublicense, allow access to, or
transfer the Software to any other party, by operation of law or otherwise,
unless listed as a specific term of license in Schedule 1.
Licensee will not export or re-export the Software.
Security Devices . Upon delivery of the Software, Licensor
will provide to Licensee all necessary codes or authorization's required to
activate the software and to allow for as many users as Licensee has purchased
licenses to use the Software. Upon payment of additional license fees, Licensee
shall be provided with one or more additional authorization's that will allow
for additional users. Licensee will not attempt to defeat, modify, copy, work
around or duplicate any security devices protecting the Software.
Proprietary Rights. Copyright is pending on the software.
Notwithstanding the copyright, the Software contains trade secrets and
confidential information of Licensor. No copies may be made of the Software,
the Documentation or any part thereof, except as specifically permitted herein.
Protection of Software. Licensee acknowledges that
Licensor represents that the Software and all copies of it, regardless of the
form or media in which the original or copies may exist, are the sole and exclusive
property of Licensor. Licensee further acknowledges that Licensor represents
that the Software, including the source and object codes, logic and structure,
constitute valuable trade secrets of Licensor. Licensee agrees to secure and
protect the Software consistent with the maintenance of Licensor's rights in
the Software, as set forth in this Agreement. Except as expressly permitted
herein, Licensee agrees not to disclose or otherwise make available any part of
the Software to any third party on any basis. By accepting this License,
Licensee does not become the owner of the Software; Licensor retains all right,
title and interest in and to the Software. This section shall survive any
termination of this Agreement.
OF THE DATA COLLECTED
User acknowledges that the Software is used for planning and
coaching purposes and draws its benchmarking data from both published
information and the actual data of the software's End Users. End User hereby
consents to allow its data to become part of this overall database on condition
that the specific information gathered will not be divulged by BBSI, its Agents
or its Resellers.
TERM OF AGREEMENT.
Term and Termination. This Agreement is effective from the
date on which Licensor accepts it after execution by Licensee, and shall remain
in effect until terminated. Subject to the Initial Term description in Schedule
1, Licensee may terminate this Agreement: (a) at any time upon written notice
to Licensor or (b) thirty (30) days after written notice to Licensor in the
event that Licensor breaches any provision of this Agreement and has not cured
such breach within the thirty (30) day period. Licensor may terminate this
Agreement: (a) at any time upon written notice to Licensee in the event of any
breach of Section 3 hereof or (b) thirty (30) days after written notice to
Licensee in the event that Licensee breaches any provision of this Agreement
other than Section 3 hereof and has not cured such breach within the thirty
(30) day period.
Actions to be Taken Upon Termination. Upon termination Licensee shall immediately discontinue use of the Software.
Effect of Termination. Termination of this Agreement will
not bar Licensor from seeking any other remedy it may have available against
Licensee for breach of the Agreement. Licensee shall hold Licensor harmless for
any loss or other consequences of a termination of the License under this
Limited Warranty . Licensor warrants that the Program licensed to
Licensee hereunder, if properly installed and used, shall materially conform to
the specifications set forth in the accompanying Documentation for a period of
three (3) months from the date of access to the Software to Licensee
(hereinafter the "Warranty Period"). Licensee shall promptly notify
Licensor in writing upon the discovery of any non-conformance. Licensor shall
correct any such non-conformance of which it has been properly notified within
the Warranty Period, through the means it determines to be most appropriate,
whether by telephone instructions, the issuance of updating documentation,
corrective code, or other methods.
Notwithstanding the warranty provisions above, Licensor shall
have no warranty obligations with respect to any part or parts of the Software
if Licensee or any third party has modified or attempted to modify the Software
or if any damage has occurred due to causes external to the Software, or if the
Software has been subjected to an extreme power surge or electromagnetic field,
whether or not through the fault of Licensee, or if Licensee has refused to
implement software changes recommended by Licensor.
THE WARRANTY SET FORTH ABOVE SHALL BE EXCLUSIVE AND IN LIEU OF
ALL OTHER LIABILITIES, OBLIGATIONS, CONDITIONS AND/OR WARRANTIES, EXPRESSED OR
IMPLIED (INCLUDING BUT NOT LIMITED TO ANY IMPLIED AND/OR STATUTORY WARRANTIES
OR CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR
PURPOSE, AS WELL AS ANY IMPLIED AND/OR STATUTORY WARRANTIES ARISING FROM THE
COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE), AND LICENSEE
HEREBY WAIVES ALL OTHER RIGHTS, OBLIGATIONS AND/OR WARRANTIES AND ASSUMES ALL
RISKS AND LIABILITIES IN RESPECT THEREOF. LICENSOR MAKES NO WARRANTY THAT THE
OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR WITHOUT INTERRUPTION. LICENSOR
DOES NOT WARRANT THAT THE SOFTWARE SHALL OPERATE WITH ANY HARDWARE OR SOFTWARE
OTHER THAN AS SPECIFIED IN THE DOCUMENTATION
IN NO EVENT SHALL LICENSOR
BE LIABLE FOR ANY LOSS OF OR DAMAGE TO REVENUES, PROFITS OR GOODWILL OR OTHER
SPECIAL, INCIDENTAL, INDIRECT AND CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING
FROM ITS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS
AGREEMENT OR ANY OF THE ATTACHMENTS HERETO, OR RESULTING FROM THE FURNISHING,
PERFORMANCE, OR USE OR LOSS OF ANY SOFTWARE OR OTHER MATERIALS DELIVERED TO
LICENSEE HEREUNDER, INCLUDING WITHOUT LIMITATION ANY INTERRUPTION OF BUSINESS,
WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH OF WARRANTY OR OTHERWISE,
EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notwithstanding anything herein to the contrary, the maximum aggregate amount
of money damages for which Licensor may be liable to Licensee under this
Agreement, resulting from any cause whatsoever, shall be limited to the amounts
actually paid by Licensee to Licensor under this Agreement.
AND MAINTENANCE TERMS AND CONDITIONS.
Provision of Support and Maintenance. Licensee may elect
to purchase support and maintenance for the Software as described in this
Section 8 by paying Licensor the applicable Maintenance Fees described herein.
Term of Maintenance. Licensor agrees to provide
Maintenance (as defined herein) to Licensee pursuant to the terms and
conditions set forth herein provided that Licensee pays the Maintenance Fee for
each Software product for which Maintenance is desired as further described in
Section Schedule 1 below. The remaining portion of the calendar year after the
effective date of this Agreement is the first "Maintenance Period"
hereunder; each one-year period thereafter beginning on January 1 during the
term of this Agreement for which Licensee has paid the applicable Maintenance
Fee is a subsequent "Maintenance Period."
Maintenance Services. In exchange for the Maintenance Fee,
Licensor agrees to provide to Licensee during the term of this Agreement
support and maintenance (collectively "Maintenance") as follows:
Support. Licensor will provide telephone support to Licensee for
current versions of the Software between the hours of 9:00 a.m. and 5:00 p.m.,
EST, Monday through Friday, excluding holidays. Licensor will investigate all
questions and problems of Licensee promptly. Licensee agrees to provide
adequate information to Licensor to assist in the investigation and to confirm
that any problems have been resolved.
Maintenance . Licensor will supply to Licensee, at no
additional charge, any improvements, upgrades, or modifications to the Software
that Licensor makes generally available. Any such improvements, upgrades, or
modifications shall become part of the Software for all purposes of this
Licensee acknowledges and agrees that the Maintenance to be
provided by Licensor hereunder is limited to the most current version of the
Software and the immediately preceding version.
Training. Licensee may purchase training from Licensor at
Licensor's then current fees for training. The date and time of the training
shall be scheduled by Licensor. All travel, living, and other out-of-pocket
expenses incurred by Licensee's employees will be paid by Licensee.
Exclusions. Licensor's obligation to provide Maintenance
is contingent upon proper use of the Software. Moreover, Licensor shall be
under no obligation to provide Maintenance should such services be required due
to (a) damage occurring in transit; (b) improper installation or operation; (c)
misuse, abuse or negligent use, repair, alteration or improper storage or any
use which does not conform to the specific or general instructions of Licensor
or to the provisions of the Documentation; (d) any modification or attempted
modification of the Software by Licensee or any third party; (e) causes
external to the Software or if the Software has been subjected to an extreme
power surge or electromagnetic field, whether or not through the fault of
Licensee; or (f) Licensee's failure or refusal to implement software changes
recommended by Licensor.
Consideration. In payment of the services to be provided
by Licensor hereunder, Licensee shall pay Licensor monthly, in advance for the
then current annual maintenance fee for each user (hereinafter called the "Maintenance
Fee"). Licensor shall invoice Licensee for Maintenance Fees annually, unless
either party terminates Maintenance for a subsequent Maintenance Period as
provided herein. The Maintenance Fee shall be payable in twelve monthly
installments beginning on the first day of the Maintenance Period. All
payments to Licensor under this Agreement shall be payable in the U.S. dollars
and shall be net of any and all taxes, withholdings, set-offs or deductions of
any nature. In the event that, by prevailing laws of the territory in which
Licensee operates, any withholding or other tax may become necessary, Licensee
shall pay on its own account such taxes directly to the tax authorities of the
Termination. In addition to the rights of Licensor to
terminate Maintenance for Licensee's failure to pay Maintenance Fees when due,
either party may terminate Maintenance hereunder by so notifying the other
party at least thirty (30) days prior to the start of any Maintenance Period.
Licensor may terminate the Maintenance for any Software provided it notifies
Licensee of such termination at least ninety (90) days prior to such
termination and it refunds to Licensee a pro-rated portion of the prepaid
Maintenance Fee for such Software. Licensor may terminate Maintenance without
notice or refund if this Agreement is terminated. Termination of Maintenance
hereunder shall not in and of itself terminate this Agreement.
MISCELLANEOUS PROVISIONS .
Assignment. Neither this Agreement nor any rights
hereunder, in whole or in part, shall be assignable or otherwise transferrable
by Licensee, and any purported assignment or transfer shall be null and void.
Severability . If any term or provision of this Agreement
shall be found to be illegal or unenforceable, then, notwithstanding, it will
be enforced to the maximum extent permissible, and the legality and
enforceability of the other provisions of this Agreement will not be affected.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS
AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY OR LIMITED WARRANTY IS
INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION
AND TO BE ENFORCED AS SUCH.
Breach. No consent by either party to, or waiver of, a
breach of this Agreement by the other party, whether express or implied, shall
constitute a consent to, waiver of, or excuse for any other different,
continuing, or subsequent breach.
Entire Agreement. This Agreement and the Schedules and
attachments hereto constitute the entire agreement between the parties
concerning the Software and supersede all prior agreements, whether written or
verbal, between the parties. No purchase order, other ordering document or any
other document which purports to modify or supplement this Agreement or any
Schedule or attachment hereto shall add to or vary the terms and conditions of this
Agreement unless executed by both Licensor and Licensee. No amendment shall be
considered to have been made to this Agreement unless it is in writing and is
executed by both of the parties.
Governing Law. The parties agree that this Agreement shall
be governed and construed by the laws of the Province of Ontario, Canada.
Licensee hereby submits to the jurisdiction and venue of the superior courts of
the Province of Ontario, Canada.
Convention on Contracts for the International Sale of Goods.
The parties expressly agree that the United Nations Convention on Contracts for
the International Sale of Goods shall not apply to this Agreement.
- The Program means the BBSI BusinessBuilder SoftwareTM
The Initial Term of this Agreement is twelve (12) months from the date on which
the agreement became effective.
- This agreement permits use for a single business location, not including
additional access for facilitators and administrative personnel who will be
provided access by Licensor.
Maintenance Fees are included with the monthly software
fee where End User has opted to acquire the software based on the Monthly
If End User has elected to acquire the software license
via the One Time Fee schedule then the Annual Maintenance Fee shall be equal to
15% of the initial license fees.
Profit Guarantee – 2x ROI
Profit Guarantee – 2x ROI
. ShopProsTM offers new
members a limited and conditional guarantee subject to the following terms and
If by the end of 12 months following
, the previous three months Operating Profit (RUN RATE) is
less than DOUBLE ROI ShopProsTM will reimburse fees on a PRORATA
basis. This guarantee is contingent upon the conditions described below.
Game Day is described in the attached
exhibit. This is usually two days of on-site coaching and evaluation aimed at
getting staff buy-in to the ShopProsTM systems and activities selected by the
member. Most of the related action plans will be outlined on the Plan page of
the location’s BusinessBuilderTM Game Day normally occurs between 3 – 6 months
– represents the
Pre-Tax Net Profit, not including Depreciation or Amortization. For Clarity,
it is the Profit line as shown on the BusinessBuilderTM Performance screen as
- is the total
Operating Profit for months 10, 11, & 12 following Game Day.
Represents the total operating profit for
the same three months as the Run-Rate period preceding membership in ShopProsTM.
is shown in the below example which has been
calculated as follows.
all fees paid to ShopProsTM during the twelve months following Game Day divided
by four to represent an average of fees during the Run Rate period.
Return represents the
Operating Profit during the Run Rate period compared to the Baseline.
Operating Profit over the entire twelve-month period following Game Day.
– With the member’s
agreement and consent, ShopProsTM will either reimburse its portion of the
average monthly Investment shortfall for twelve months or membership fees will
be waived for a specified period of time
– To participate in the
Guarantee, the following conditions must be met
for at least twelve months preceding the end of the Run-
authorized by ShopProsTM, member will not undertake training or coaching
services from any company other than ShopProsTM
Member must apply “best
efforts” towards completion the actions cited in the Business Plan within the
time frames specified.
ShopProsTMmay immediately terminate the Agreement: (i) in the event that Customer fails to make any payment or any other amount when due or (ii) if Customer experiences a material adverse change in financial condition. In addition, either Party may immediately terminate the Agreement upon written notice if the other Party is subject to a voluntary or involuntary liquidation, dissolution, receivership, bankruptcy, insolvency, assignment for benefit of creditors, or other similar proceedings.
– The Guarantee is
subject to the following exceptions
conditions that result in closure, temporary closure or other uncontrollable
events that create material negative impact on the business.
Member illness that
materially impacts member’s ability to apply “best efforts”.
expenditures that beyond those foreseen and planned for in the BusinessBuilderTM
Upon mutual agreement,
the member may forego Game Day and establish a separate and alternate date
representing the beginning of the twelve-month period completed by the Run-Rate