Terms Of Use

Please read this terms of service and any other policies and documents referenced in this terms of service, which make up the “agreement.” Please read the agreement carefully before using this service.

Please read this terms of service and any other policies and documents referenced in this terms of service, which make up the “agreement.” Please read the agreement carefully before using this service.

Agree: by using the service or clicking “sign up now” customer is agreeing to be bound by the agreement and if customer is not an individual, individual who clicks “sign up now” has the appropriate authority to bind the customer to the agreement.

Cancel: if customer does not want to agree to this agreement then do not click to sign up but then customer cannot use the service.

This agreement is between Icicle Technologies Inc. (Icicle) and the entity or individual agreeing to these terms (Customer).

1. Software-as-a-Service

Subject to this Agreement, Icicle grants to Customer a non-exclusive, non-transferable, non-sub-licensable revocable license (License) to access and use a cloud based software service when Customer registers for a Icicle account and as further outlined at icicle.burtonsoftware.com (Service). The License is granted for the Term (as defined below) of this agreement.

2. Use of Service

a. Customer Owned Data. When registering for our Service you will provide Information that is necessary so you can use the Service, including, but not limited to, company name, individual name, address, phone number and email address.

b. Access to Customer Account. Customer may allow other Icicle users (Other Users) to access Customer’s account. Such access must be for the sole benefit of Customer. Customer is solely responsible for all access granted to Other Users and the actions of Other Users on Customer’s account. Icicle accepts no liability or responsibility for any actions by an Other User on Customer’s account. It is Icicle’s policy that Icicle, its directors, officers, employees, agents or consultants will not make any changes to Customer Data, except in the event of a termination of this Agreement. However, in certain circumstances, Icicle, its directors, officers, employees, agents or consultants will make changes to Customer Data, including changes or amendments to files a Customer sends to Icicle, if a Customer or a Customer’s Other Users request such changes or amendments. Sometimes Icicle, its directors, officers, employees, agents or consultants need to change information in a Customer’s account so Icicle can fix technical issues that prevent Icicle from properly delivering the Service.

c. Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Icicle promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s technical documentation (support.burtonsoftware.com) and applicable law.

e. Third Party Services. Customer can integrate certain third party services into the Service. These third party services are not provided by Icicle. Customer agrees to hold harmless and release Icicle and the Released Parties (defined below) from any liability relating to Customer’s use of the third party services or integration of the Services with the third party services. Customer’s ability to use the third party services may be limited according to the third party’s terms and conditions. When Customer integrates with a third party service, Customer authorizes Icicle to share any Customer Data, whether confidential or not, with the third party service so Customer can take advantage of integration with Icicle. Any links to a third party service or website Customer finds in the Service or on Icicle.com are provided for convenience only and Icicle does not control or endorse any material or information found on those third party sites.

h. Trial Version. If Customer has registered for a trial use of the Service, Customer may access the Service for a trial period granted by Icicle. The Service is provided AS IS, with no warranty during this time period. All Customer data may be deleted after the trial period, unless Customer converts its account to a non-trial account.

3. Payment

Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.

4. Mutual Confidentiality

a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (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). Icicle’s Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout).

b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

5. Icicle Property

a. Reservation of Rights. The software, workflow processes, user interface, designs, know-how, and other technologies provided by Icicle as part of the Service are the proprietary property of Icicle and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain with their respective owners. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. Icicle reserves all rights unless expressly granted in this agreement.

b. Restrictions. Customer may not (i) sell, resell, rent or lease the Service; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service, including, but not limited to uploading or distributing in any way files that contain viruses or corrupted files that may damage the operation of the Services; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.

6. Term and Termination

a. Term. This agreement continues until Customer or Icicle terminates the Customer account (Term).

b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

c. Return of Customer Data.

Within 30-days after termination, upon request Icicle will make the Service available for Customer to export the Customer Data.

After such 60-day period, Icicle has no obligation to maintain the Customer Data and may destroy it.

d. Return or Destroy Icicle Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay Icicle for any unpaid amounts, and destroy or return all property of Icicle. Upon Icicle’s request, Customer will confirm in writing its compliance with this destruction or return requirement.

e. Aggregate Data. During and after the Term, Icicle may use non-personally identifiable Customer Data for purposes of enhancing the Service, aggregated statistical analysis, technical support and other business purposes.

f. Suspension of Service for Violation of Law. Icicle may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in sole discretion acting reasonably believes that, as part of using the Service, Customer has violated a law. Icicle will attempt to contact Customer in advance before Icicle suspends the Service.

7. Service Level Agreement/Warranty and Remedy

Warranty. Icicle warrants to Customer that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excluding scheduled outages, force majeure, and outages that result from any Customer technology issues).

Availability Warranty: 98%

Credit: 25% of previous monthly fee if below the warranty

Limited Remedy. The Service may be interrupted or contain an error. Customer’s exclusive remedy and Icicle’s sole obligation for its failure to meet the warranty above will be for Icicle to provide a credit for the applicable month as provided in the chart above (if this agreement is not renewed, then a refund), for the month; provided that Customer notifies Icicle of such breach within 30 days of the end of that month. In addition, Customers under a prepaid annual contract can terminate this agreement upon notice to Icicle if the performance falls below the availability warranty, and Icicle will refund such a Customer a pro-rated amount of any fees paid to Icicle for the Service.

8. Liability Limit and Disclaimer

a. Limit on purposes of services. The services are not designed to replace professional advice, such as tax and accounting advice.

b. Disclaimer. Except as expressly provided in this agreement, the services are not guaranteed and are provided “as is.” While Icicle takes reasonable, physical, technical and administrative measures to secure the service, Icicle gives no representations, warranties or conditions of any kind, express or implied, including without limitation representations, warranties or conditions as to uninterrupted or error free or virus free service, accessibility, privacy of files, security, merchantability, quality or fitness for a particular purpose and those arising by statute or otherwise, or from a course of dealing or usage of trade.

c. Limitation on Liability. ICICLE, ITS DIRECTORS, Officers, agents, contractors, Shareholders or affiliates (RELEASED PARTIES) will not be liable in any way for any claim for: (a) punitive, EXEMPLARY or aggravated damages; (b) damages for loss of profits or REVENUE, failure to realize expected savings, loss of use or lack of availability of customer data; (c) indirect, CONSEQUENTIAL or special damages, ARISING from or in connection with the services, regardless of WHETHER or not customer informed or advised Icicle of the possibility of such damages; (d) Contribution, indemnity or set-off in respect of any claims against customer; (e) any damages whatsoever relating to third-party products, client materials or any goods or services not developed or provided by Icicle; or (f) any damages whatsoever relating to interruption, delays, errors or OMISSIONS EVEN IF SUCH INTERRUPTION, DELAYS, ERRORS OR OMISSIONS WERE CAUSED BY ANY OF THE RELEASED PARTIES.

d. Total limit on Liability. Icicle’s liability for all damages arising out of or related to this agreement (whether in contract, warranty tort, including negligence, or otherwise) does not exceed the amount paid by Customer within the 12 month period prior to the event that gave rise to the liability.

9. Indemnity

If any third-party brings a claim against Icicle or any of the Released Parties related to Customer’s acts, omissions, data or information within the Services, Customer must defend, indemnify and hold Icicle or the Released Parties harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.

10. Governing Law and Forum

The laws of British Columbia, Canada govern this agreement. Any dispute arising out of or related to this agreement must be exclusively brought in a court of competent jurisdiction in British Columbia. The prevailing party in litigation is entitled to recover its attorneys’ fees and costs from the other party.

11. Amendment of Service and Terms

Icicle can, without notice and in Icicle’s sole discretion, without any notice or liability to Customer, terminate Customer’s right to the License to use the Service or any part of the Service. Icicle can also terminate, without any notice or liability to Customer, any part of the Service. Icicle is constantly adding new products and features to the Service, so Icicle can amend this Agreement as Icicle sees fit.

12. Other Terms

a. Entire Agreement and Changes. This agreement constitutes the entire agreement between the parties and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding.

b. No Assignment. Customer may not assign or transfer the Agreement or a Customer account to a third party, unless as part of a merger or sale of substantially all the assets of Customer.

c. No Partnership. Nothing in the Agreement creates a partnership or joint venture between the Customer and Icicle. Icicle is not providing Customer with any advice, including financial, accounting, or tax.

d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for force majeure events.

e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

f. Survival of Terms and no CISG. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.

g. English. The parties have agreed that this agreement and the related documents be drawn up in the English language. Les parties exigent que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.

h. Age of Majority. By clicking Sign Up, the Customer certifies that the Customer is of the age of majority in whatever jurisdiction the Customer is located.

Icicle Technologies Inc. 6255 Jade Court Richmond, BC V7C 5A7 Canada Rev. September 1, 2013