End-User License Agreement (EULA) & Terms of Service
BY USING THE STICKS SOFTWARE AND ANY OF ITS FEATURES, SERVICES, ADD-ON PRODUCTS, OR DOCUMENTATION (COLLECTIVELY, “STICKS”), YOU AND ANYONE YOU ALLOW TO USE THE SOFTWARE ON YOUR BEHALF OR ON BEHALF OF YOUR BUSINESS OR A DEVELOPER OR HOMEBUILDER (INDIVIDUALLY AND COLLECTIVELY SOMETIMES REFERRED TO AS “YOU”, “YOUR”, OR “CLIENT”) AGREE TO BE LEGALLY BOUND BY THE MOST CURRENT VERSION OF THESE TERMS OF USE (THE “TERMS” OR “TERMS OF USE”), WHICH MAY BE UPDATED BY STICKS FROM TIME TO TIME AND ACCESSIBLE TO YOU IN THE STICKS TERMS OF USE LINK FOUND WITHIN THE STICKS SOFTWARE. IF YOU DO NOT AGREE TO THE MOST CURRENT VERSION OF THESE TERMS, YOU MAY NOT USE (OR MUST STOP USING) STICKS.
1. License, Restrictions, and Access.
a. License. When you purchase and register to use Sticks, you have a non-exclusive, non-transferable (except as expressly provided in these Terms), limited license to access and use Sticks solely for the purpose of enterprise resource planning for building and developing residential or commercial properties during the Initial Term or any subsequent Term.
b. Restrictions. We hope you love using Sticks as much as we enjoyed creating it! Other than building and developing residential or commercial properties, you are prohibited by these Terms from sharing (except as expressly provided by these Terms), renting, leasing, selling, transferring, sublicensing, assigning, time sharing, or making publicly available, your access to Sticks, including but not limited to your log-in credentials. You are also prohibited from using Sticks for any purpose other than enterprise resource planning for building and developing residential or commercial properties including but not limited to: (1) reverse engineering, decompiling or otherwise attempting to discover source code; or (2) studying, examining, benchmarking, scraping, modifying, reproducing, copying, making derivative works from, distributing, publishing, promoting service bureau services, publicly displaying or training, or demonstrating Sticks. And if you are a enterprise resource planning software company or any other competitor of Sticks, you should know that accessing, using, or licensing Sticks for any reason whatsoever is strictly prohibited—so don’t do it!
c. Access to the Sticks Network. Depending on the Sticks features and services you use, you may have direct or indirect access to the Sticks network including servers owned, leased and maintained by Sticks Software Inc.(sometimes called the “Sticks.Cloud”). Sticks will use commercially reasonable efforts to keep the Sticks.Cloud up and running 24-hours a day, seven days a week, excluding down-time for maintenance, repairs, and other necessary activities. By using Sticks, you are prohibited from knowingly or negligently doing anything to disrupt, damage, interfere with, or otherwise adversely affect the Sticks.Cloud including but not limited to introducing, transmitting or disseminating viruses, corrupted files, malware, or any other harmful or malicious software or programs.
2. Authorized Users and Passwords.
a. Authorized Users. You agree that you will not allow anyone to log into Sticks for any purpose that is inconsistent with or in any way prohibited by these Terms. Only you or the individuals you have expressly authorized to manage development of residential or commercial properties on your behalf are authorized to access and use Sticks, but you cannot sublicense access to Sticks to other homebuilders or developers.
b. Passwords. You should always observe good password security practices in all your on-line activity, including when using Sticks. It is your sole and exclusive responsibility to protect your password. Although Sticks will make a reasonable effort to work with you to restore a backup of data that is lost or corrupted because your password was obtained and used by an unauthorized party, under no circumstances shall Sticks be liable to you or anyone for any reason whatsoever, including for any data loss, corruption, or misuse, arising from the misuse of your password by anyone under any circumstance.
2. Property and Purchaser Data Ownership, Protection, and Limitation of Liability.
a. Data Ownership. Property and purchaser data is owned by you and hosted by Sticks in the Sticks.Cloud at no additional charge. If at any time you would like a copy of your current property and purchaser data, you can export it in the form of reports using standard Sticks tools. However, as set forth in these Terms, for safety and security reasons all enterprise resource planning related data that you, your purchasers, or anyone else acting on your behalf entered into Sticks will be permanently deleted if you cancel or terminate Sticks. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT ANY DATA YOU WISH TO PRESERVE IS COPIED AND EXPORTED BEFORE YOUR ACCESS TO STICKS ENDS AND ANY DATA IS PERMANENTLY DELETED IN ACCORDANCE WITH THESE TERMS.
b. Data Protection. Sticks takes the protection of your data seriously and agrees to use firewalls and other commercially reasonable technology generally used in the industry to prevent unauthorized third-party access to the Sticks.Cloud where your property and purchaser data is stored. Sticks also agrees to use commercially reasonable encryption technology generally used in the industry to protect the transmission of sensitive purchaser data and to encrypt highly sensitive purchaser data that is at rest in the Sticks.Cloud.
c. LIMITATION OF LIABILITY. NOTWITHSTANDING THE FOREGOING, STICKS SHALL NOT BE LIABLE TO YOU IF: (A) ITS USE OF FIRE- WALLS AND OTHER TECHNOLOGY FAILS TO PREVENT UNAUTHORIZED THIRD-PARTY ACCESS TO CLIENT DATA; OR (B) ITS USE OF ENCRYPTION TECHNOLOGY FAILS TO PREVENT UNAUTHORIZED THIRD-PARTIES FROM ACCESSING SENSITIVE PURCHASER IN- FORMATION DURING TRANSMISSION OR FROM ACCESSING HIGHLY SENSITIVE PURCHASER INFORMATION AT REST IN THE STICKSCLOUD. NOTHING IN THESE TERMS SHALL CONSTITUTE A REPRESENTATION OR WARRANTY BY STICKSTHAT CLIENT DATA TRANSMISSION OR STORAGE WILL BE INACCESSIBLE TO UNAUTHORIZED THIRD PARTIES.
3. Confidentiality, Exceptions, Obligations to Disclose, and the Return of Confidential Information.
a. Confidentiality. “Confidential Information” means the property and purchaser data that you manage using Sticks, and all Sticks and Sticks patent, copyright, trade secret, and other proprietary information of any kind. You and Sticks agree not to disclose the other’s Confidential Information to any unauthorized third party, except as described below.
b. Confidentiality Exceptions. Confidential Information is not protected from disclosure if the information: (1) is no longer confidential (through no fault of the party that would like to disclose it); (2) was already in the possession of the party that would like to disclose it, provided it was obtained properly and without any violation of any other confidentiality requirements that apply; or (3) was independently developed by the party that wants to disclose it without having used, referred to, or relied on the other party’s Confidential Information.
c. Obligations to Disclose. From time to time, Sticks may receive a legal request from a third party in the form of a subpoena, search warrant, or other legal process (collectively, a “Disclosure Demand”) demanding that Sticks disclose certain Confidential Information that belongs to you and that is in Sticks.Cloud. When this happens, Sticks will notify you that it has received the Disclosure Demand unless Sticks is legally prohibited from doing so (such as if a court orders Sticks to surrender data without notifying you, which can sometimes happen in criminal or other sensitive investigations). If you receive a Disclosure Demand notice from Sticks, can either take no action in which case Sticks will comply with the Disclosure Demand in whatever ever way it is legally required to do so, or you can take steps, at your own expense, to prevent Sticks from complying with the Disclosure Demand. Taking steps to prevent Sticks from complying with a Disclosure Demand will almost certainly require that you get competent legal advice, which Sticks cannot provide.
d. Return of Confidential Information. Your Confidential Information is and shall at all times remain yours, and Sticks’s Confidential Information is and shall at times remain Sticks’s. These Terms do not grant or imply any license or other rights to you or to Sticks of the other’s Confidential Information, except as expressly set forth in these Terms. Upon the end of your Term, you have five business days to return to Sticksany Sticks Confidential Information you may have, if any. For safety and security reasons, all enterprise resource planning related data that you, your purchasers, or anyone else acting on your behalf entered into Sticks during the time you used Sticks will be permanently deleted when your access to Sticks ends. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT ANY CONFIDENTIAL INFORMATION THAT BE- LONGS TO YOU, SUCH AS ENTERPRISE RESOURCE PLANNING DATA, IS EXPORTED BEFORE YOUR ACCESS TO STICKS ENDS, as Sticks will have no obligation to return this data to you or to preserve or retain it after your access ends for any reason (except as may be ordered by a court or other authority of competent jurisdiction).
4. DISCLAIMERS, WARRANTY, WAIVERS, REMEDIES, AND LIABILITY LIMITATIONS.
a. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH BELOW IN THE “LIMITED SOFTWARE WARRANTY,” AND TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, STICKS DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH REGARD TO STICKS, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT STICKS WILL MEET YOUR SPECIFIC SOFTWARE, TECHNICAL, PROPERTY MANAGEMENT, OR ANY OTHER REQUIREMENTS OR EXPECTATIONS.
b. INTERNET PERFORMANCE DISCLAIMER. STICKS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA VIA THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT THE INTERNET. STICKS WILL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY AND AVOID SUCH EVENTS BUT CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, STICKS DISCLAIMS ANY LIABILITY RESULTING FROM OR RELATING TO SUCH EVENTS.
c. LIMITED SOFTWARE WARRANTY. Sticks warrants that Sticks does not infringe on or misappropriate any third party proprietary information, trademark, copyright, patent rights, intellectual property rights, or trade secrets. Any damages for a breach of this LIMITED SOFTWARE WARRANTY by Sticks are strictly limited by these Terms.
d. REMEDY FOR BREACH OF LIMITED SOFTWARE WARRANTY. IF STICKS BREACHES ITS LIMITED SOFTWARE WARRANTY TO YOU, STICKS AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO MODIFY THE LICENSED PROGRAMS SO THAT THE LICENSED PROGRAMS CONFORM TO THAT WARRANTY. IF SUCH MODIFICATION IS NOT COMMERCIALLY REASONABLE, THEN STICKS WILL NOTIFY YOU AND YOU MAY TERMINATE THESE TERMS WITHOUT PENALTY. THE FOREGOING IS YOUR SOLE REMEDY IN THE EVENT OF A BREACH OF THE LIMITED SOFTWARE WARRANTY.
e. DAMAGES WAIVER. NOTWITHSTANDING ANY OTHER OF THESE TERMS, AND TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, STICKS DISCLAIMS ALL OBLIGATIONS AND LIABILITIES FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, ATTORNEYS' FEES, EXPERTS' FEES, AND COURT COSTS (EVEN IF STICKS HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING FROM OR IN CONNECTION WITH THESE TERMS.
f. LIMITATION OF STICKS’S LIABILITY AND YOUR SOLE REMEDY AGAINST STICKS. IN ADDITION TO ALL OTHER LIMITATIONS SET FORTH IN THESE TERMS, AND TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AGREE THAT STICKS SHALL HAVE NO LIABILITY WHATSOEVER EXCEPT IN THE EVENT OF A CLAIM OR CAUSE OF ACTION ARISING OUT OF OR CONNECTED WITH THESE TERMS FOR WHICH STICKS WAS THE SOLE CAUSE, AND THAT STICKS’S MAXIMUM LIABILITY TO YOU, REGARDLESS OF THE AMOUNT OF LOSS YOU MAY CLAIM OR HAVE SUFFERED, SHALL BE LIMITED TO A REFUND OF THE FEES YOU ACTUALLY PAID TO STICKS IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE DATE YOU FIRST NOTIFY STICKS OF YOUR CLAIM. THIS REFUND IS YOUR SOLE AND EXCLUSIVE REMEDY.
5. Disputes.
In the event of a dispute arising out of or related to these Terms or your use of Sticks, you and Sticks will use commercially reasonable and good faith efforts to informally and timely resolve the dispute. All such efforts shall be confidential and be protected under applicable law as compromise and settlement negotiations. If after 30 calendar days of good faith negotiations in accordance with this section the parties are unable to reach a mutually satisfactory resolution, either party may pursue its rights and remedies under applicable law.
6. Assignment.
These terms and your access to Sticks cannot be assigned by you for any reason without the prior, express, written consent of Sticks, which Sticks may withhold in its sole discretion. Any attempted or purported assignment without the prior, express, written consent of Sticks is void. These Terms are binding on and inure to the benefit of both you and Sticks and our respective, authorized assigns, successors, and legal representatives.
7. Governing Law and Venue.
These Terms are governed and determined by the laws of Canada and the Province of Alberta as such laws are applied to agreements made and performed entirely within Edmonton, Alberta, Canada. Any action or proceeding related to or arising out of these Terms shall be resolved only in a court of competent jurisdiction in the City of Edmonton, Province of Alberta, Canada (or, if there is no court of competent jurisdiction in the City of Edmonton, Alberta, Canada, then the court of competent jurisdiction closest to the City of Edmonton, Alberta, Canada), and you and Sticks expressly consent to the personal jurisdiction of such courts and waive any right to cause any action or proceeding to be brought or tried elsewhere.
8. Waiver.
If you or Sticks waiver any breach of these Terms by the other party, that waiver shall not be construed as a waiver of any subsequent breach of the same or similar nature, or any other breach of any kind.
9. Severability.
If a court or other body of competent jurisdiction determines that any part of these Terms is unenforceable, you and Sticks expressly acknowledge and agree that all other parts of these Terms unaffected by that determination shall remain valid and enforceable.
10. Headings.
The section headings and captions in these Terms are for convenience only, and you and Sticks agree that the headings and captions do not and are not intended to limit or change the substance of these Terms in any way.
11. Data Use.
Sticks may aggregate, compile, and use your data to improve, develop or enhance Sticks or the other services Sticks offers or may offer in the future. By aggregating any such data, Sticks will not preserve it in a form that can be traced back to you or any purchasers residing in any property you own, develop or manage.