THESE TERMS ARE A LEGAL AGREEMENT BETWEEN CUSTOMER AND SAGE. BY CLICKING THE “CONFIRM” BUTTON BELOW, YOU REPRESENT THAT YOU HAVE THE RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE LEGAL ENTITY DESCRIBED AS “CUSTOMER” BELOW. IF YOU DO NOT HAVE THE RIGHT TO REPRESENT CUSTOMER, OR IF YOU DO NOT AGREE TO THESE TERMS, SAGE DOES NOT GRANT YOU THE RIGHTS TO USE THE PROVISIONING TECHNOLOGY AND SOFTWARE DESCRIBED BELOW. USE OF THE PROVISIONING TECHNOLOGY OR THE SOFTWARE CONSTITUTES CUSTOMER’S AGREEMENT WITH THESE TERMS.
1. Scope. These Sage Customer Terms (“Terms”) govern the use of: (i) the Sage provisioning website and the provisioning services provided through it (“Portal”), (ii) any associated online and offline components (such as landing page(s)) made available to Customer’s users in connection with the Portal (collectively with the Portal, “Provisioning Technology”), and (iii) the Software (as defined below).
2. Parties. The “Customer” is the legal entity listed on the order form issued by Sage or an authorized reseller that describes the Sage software product(s) or plan(s) that such entity has elected to purchase and that are provisioned through the Portal (“Software”). “Sage” is the Sage company that distributes the Software to Customer or the authorized reseller. A list of Sage distributing companies by location is provided in Section 15 below.
3. Software License. Customer’s use of the Software is subject to the End User License Terms applicable to each such Software and located: (i) for North America customers (other than Canada), at https://www.sage.com/en-us/legal/eula/, and (ii) for Canada customers, at https://www.sage.com/en-ca/legal/eula/ or, for Quebec customers, at https://www.sage.com/fr-ca/informations-legales/cluf/, including any supplemental license terms posted at each such respective link (collectively, “EULA”). Each applicable EULA is incorporated herein in its entirety by this reference. Throughout the term of the EULA, Customer agrees that the Software in the Cloud Environment (as defined below) shall be either the current Major Version or another preceding Major Version of the Software permitted for use in accordance with Sage’s product release and maintenance policies. “Major Version” means an upgrade to the Software that Sage has designated as a “major release” (or words of similar import) and has made available for deployment via the Portal.
4. Cloud Environment. The Provisioning Technology facilitates the deployment of the Software in a cloud environment managed by a Sage business partner (“Cloud Environment”). CUSTOMER (I) ACKNOWLEDGES THAT THEIR SAGE BUSINESS PARTNER MANAGES THE CLOUD ENVIRONMENT IN ITS OWN NAME AND NOT AS AN AGENT OR REPRESENTATIVE OF SAGE, AND (II) AGREES THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IT WILL NOT MAKE ANY CLAIM AGAINST SAGE OR ANY OF ITS AFFILIATES OR LICENSORS RELATED TO THE MANAGEMENT OF THE CLOUD ENVIRONMENT OR ITS RELIABILITY, INTEGRITY, PRIVACY, SECURITY OR AVAILABILITY.
5. Financial Terms. The fees and payment terms of the EULA shall apply to Customer’s use of the Software in the Cloud Environment. In the event that the Sage business partner bills the Customer for the Software, non-payment of any such fees by the Customer to the Sage business partner or by the Sage business partner to Sage shall be a breach of the EULA and these Terms.
6. Use of Provisioning Technology. Subject to the terms and conditions of this Agreement, Sage grants Customer a limited-term, non-exclusive, non-sublicensable, non-transferable (except as expressly permitted herein) right to access and use the Provisioning Technology for the deployment of the Software (including updates and upgrades thereto) in the Cloud Environment and the associated management of the Software user licenses. Sage will use commercially reasonable efforts to maintain availability of the Portal 24 hours a day, 7 days per week, subject to planned maintenance, force majeure events, and these Terms. In the event that Customer’s use of the Provisioning Technology interferes with or disrupts the integrity, security, availability or performance of the Provisioning Technology, Sage may modify or temporarily restrict or suspend Customer’s use thereof. In such event, the parties will cooperate in good faith to resolve the issue as soon as reasonably possible.
7. Access Credentials. Sage will provide Customer with access credentials for the Portal and the Software. Customer shall be responsible for: (i) the confidentiality of such access credentials that are in Customer’s possession or control; (ii) setting up appropriate internal roles, permissions, policies and procedures for the safe and secure use of the Provisioning Technology and Software, (iii) the activity of all Customer’s users in the Provisioning Technology and the Software; and (iv) the compliance of Customer’s users with these Terms. Customer must notify Sage as soon as reasonably possible if Customer becomes aware, or reasonably suspects, that the security of Customer’s account has been compromised.
8. Restrictions. Except as expressly authorized by these Terms, or by Sage in writing prior to each instance, Customer shall not: (i) use the Provisioning Technology for any purpose other than to manage Software subscriptions and licenses; (ii) use the Provisioning Technology to circumvent any EULA restrictions; (iii) derive the source code or use tools to observe the internal operation of, or scan, scrape, probe or penetrate, the Provisioning Technology; (iv) copy, modify or make derivative works of the Provisioning Technology; (v) remove any proprietary markings or notices from any materials provided or made available to Customer by Sage; (vi) frame or mirror the Provisioning Technology or any part thereof; or (vii) use the Provisioning Technology: (a) to send spam, duplicative, or unsolicited messages in violation of applicable laws or regulations; (b) to send or store material that violates the rights of a third party; (c) to send or store material containing viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (d) for any other illegal or unlawful purpose. Customer may not knowingly facilitate or aid a third party in any of the foregoing activities.
9. Mutual Warranties. Each party represents to the other that it (i) has the authority to enter into this Agreement, to carry out its obligations under it, and to give the rights and licenses granted herein, and (ii) this Agreement does not, and will not, conflict with any other agreement of such party with a third party.
10. Sage Warranty. Sage warrants that the Provisioning Technology will perform materially in accordance with the online or written user guides, specifications, and manuals regarding the Provisioning Technology made available by Sage, and any updates thereto (“Provisioning Technology Documentation”). If Customer notifies Sage in writing of any non-conformance of the Provisioning Technology with the Provisioning Technology Documentation, Sage will use commercially reasonable efforts to investigate and correct any such non-conformance promptly. Customer will use commercially reasonable efforts to mitigate any damage as a result of such non-conformance. Subject to Customer’s right to terminate these Terms for cause, this Section constitutes Customer’s sole and exclusive remedy for breach of the Sage warranties regarding the Provisioning Technology. Sage’s warranties about the Software and Customer’s corresponding remedies are set forth in the EULA. SAGE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE CLOUD ENVIRONMENT.
11. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, AND, WITH RESPECT TO THE SOFTWARE, THE EULA, THE SAGE PROVISIONING TECHNOLOGY AND THE SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SAGE, ON BEHALF OF ITSELF, ITS AFFILIATES AND LICENSORS, DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THOSE (I) OF MERCHANTABILITY OR SATISFACTORY QUALITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, (III) ARISING FROM CUSTOM, TRADE USAGE, COURSE OF PRIOR DEALING OR COURSE OF PERFORMANCE, OR (IV) NON-INFRINGEMENT.
12. Confidentiality. "Confidential Information" means all information of a party or its affiliates ("Discloser") disclosed to the other party or its affiliates ("Recipient"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information excludes: (i) information that was known to the Recipient without a confidentiality restriction prior to its disclosure by the Discloser; (ii) information that was or becomes publicly known through no wrongful act of the Recipient; (iii) information that the Recipient rightfully received from a third party authorized to make such disclosure without restriction; (iv) information that has been independently developed by the Recipient without use of the Discloser’s Confidential Information; and (v) information that was authorized for release in writing by the Discloser. The Recipient will use the same degree of care and resources as it uses for its own confidential information of like nature (but no less than reasonable care) to protect the Discloser’s Confidential Information from any use or disclosure not permitted by this agreement or authorized by the Discloser. The Recipient may disclose the Discloser’s Confidential Information to its employees, affiliates and service providers who need access to such Confidential Information to effect the intent of this agreement, provided that they are bound by confidentiality obligations no less restrictive than those herein. Recipient shall be responsible for any breach of this section by its employees, affiliates and service providers. The Recipient may disclose Confidential Information to the extent required by court or administrative order or law, provided that the Recipient provides advance notice thereof (unless requested or ordered not to do so by law enforcement or a court) and reasonable assistance, at the Discloser’s cost, to enable the Discloser to seek a protective order or otherwise prevent or limit such disclosure. A breach of the Recipient’s confidentiality obligations may cause irreparable damage, which money cannot satisfactorily remedy, and therefore the Discloser may seek injunctive relief for any threatened or actual breach of this section without the need to prove damages or post a bond or other surety.
13. Privacy. Customer acknowledges that in order for the Sage business partner to manage the Software and customer data therein in the Cloud Environment the Sage business partner that manages the Cloud Environment will have administrator-level access to the Provisioning Technology, Software and customer data therein. The Sage business partner’s access to, processing and retention of Customer data in the Cloud Environment is governed by Customer’s own agreement with the Sage business partner (and not by these Terms) and by the Sage business partner’s policies. Sage may collect, use and disclose information as set forth in the EULA and the privacy notice for the Provisioning Technology available at https://www.sage.com/en-us/legal/spnca/privacy-notice or a successor URL.
14. Term and Termination. These Terms will remain in effect until the expiration or termination of all Software licenses under the EULA. A breach by Customer of these Terms shall constitute a breach of the EULA. Any provision reasonably read as intended to survive the Terms’ termination or expiration shall survive, including without limitation, Sections 11, 13-17 and this sentence, as well as any surviving provisions of the EULA. Section 12 will survive for 3 years after termination or expiration of these Terms.
15. Limitation of Liability. The limitation of liability provisions of the EULA shall apply to any claims made under, or related to, these Terms.
16. General. The choice of law and dispute resolution terms of the EULA shall apply to any disputes related to these Terms. Notices under these Terms shall be sent as provided in the EULA; provided that notices of updates to these Terms may be provided by Sage as set forth below. The assignment provisions of the EULA shall apply to assignments of these Terms. If the EULA does not contain an assignment provision, neither party may assign any rights or obligations under these Terms without the other party’s prior written consent, except that Sage may assign these Terms to an affiliate in the Sage group of companies or otherwise in connection with a corporate transaction such as a merger, consolidation, reorganization or sale of assets. Any attempted assignment in breach of these Terms shall be void. Each party is an independent contractor, and neither party has any authority to act on behalf of the other. Neither party will represent itself as agent, servant, franchisee, joint venturer or legal partner of the other. Sage is entering into this agreement as principal and not as agent for any other Sage company, and claims under these Terms may be brought only against the Sage company party to it and not against any of other affiliated Sage company. These Terms, together with the EULA(s) incorporated herein, are the complete and exclusive understanding between the parties regarding the subject matter hereof and supersede any prior purchase order, confirmation, advertising, representation, or other communication. If any provision of these Terms is found to be void, invalid, or unenforceable, it shall be severed from and shall not affect the remainder hereof, which shall remain valid and enforceable. Any such severed provision shall be replaced with a similar provision which conforms to applicable law and embodies as closely as possible the original intent of the parties. A party’s failure or delay to exercise any right under these Terms will not act as a waiver of such right; rights may only be waived in writing signed by the waiving party. Except for the payment obligations, neither party will be liable to the other to the extent performance of any obligations under these Terms is delayed or prevented by an act of God (e.g., a natural disaster, accident or epidemic) or another event outside of reasonable control of the party seeking excuse of performance (e.g., acts of war, terrorism, government authority or by another third party outside the party’s control). From time to time, Sage may amend these Terms and/or the EULA. Sage will notify Customer of any material changes by promptly sending an email or posting a notice in the Provisioning Technology. By continuing to access or use the Provisioning Technology or the Software after such notice, Customer agrees to be bound by the modified Terms. Headings are for convenience only and may not be used in interpretation. The words “such as” and “including” do not signify limitation. The Terms, including the EULA(s), shall not be interpreted against the drafter. In the event of an express conflict between these Terms and the EULA, these Terms shall prevail. The parties have expressly requested and required that this Agreement and all other related documents be drawn up in the English language. Les Parties conviennent et exigent expressément que ce Contrat et tous les documents qui s’y rapportent soient rédigés en anglais.
17. Sage Contracting Entities.
Sage may update the list of contracting entities from time to time to reflect entity and/or address changes or additional territories.
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