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, the "Software").

WHEREAS you, the end user as Licensee desire to license certain software programs owned by BBSI as Licensor for Licensee's own internal use;

AND WHERAS Licensor is willing to grant Licensee such a license, subject to the terms and conditions of this Agreement.

NOW THEREFORE In consideration of the license fees to be paid hereunder and for other good and valuable consideration, the parties agree as follows:

1.     GRANT 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.

2.     DELIVERY AND PAYMENT. Licensor shall supply access to the Software listed on Schedule 1 and Licensor will invoice Licensee for the License Fees indicated thereon.

2.1    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 License Fees.

2.2    Licensee agrees to pay any invoice in full within 10 days of receipt.

2.3    All prices and payments are in U.S. dollars unless otherwise indicated.

3.     USE OF THE SOFTWARE.

3.1    Restrictions on Use . The license granted by Licensor to Licensee to use the Software is subject to the following restrictions:

3.1.1     The Software may be used only by Licensee for its internal business purposes and only for the direct benefit of Licensee.

3.1.2     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.

3.1.4     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.

3.1.5     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.

3.1.6     Licensee will not export or re-export the Software.

3.2    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.

3.3    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.

3.4    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.

4.     USE OF THE DATA COLLECTED

4.1    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.

5.     TERM OF AGREEMENT.

5.1    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.

5.2    Actions to be Taken Upon Termination. Upon termination Licensee shall immediately discontinue use of the Software.

5.3    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 Article 4.

6.     WARRANTY.

6.1    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.

6.2    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.

6.3    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

7.     LIMITATION OF LIABILITY.

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.

8.     SUPPORT AND MAINTENANCE TERMS AND CONDITIONS.

8.1    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.

8.2    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."

8.3    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:

8.3.1     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.

8.3.2     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 Agreement.

8.3.3     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.

8.4    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.

8.5    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.

8.6    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 territory.

8.7    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.

9.     MISCELLANEOUS PROVISIONS .

 

9.1    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.

9.2    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.

9.3    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.

9.4    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.

9.5    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.

9.6    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.

 

 

 

Schedule 1

 

1.     The Program - The Program means the BBSI BusinessBuilder SoftwareTM

2.     Initial Term - The Initial Term of this Agreement is twelve (12) months from the date on which the agreement became effective.

3.     Authorized Users - 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.

4.     Maintenance Fees -

o    Maintenance Fees are included with the monthly software fee where End User has opted to acquire the software based on the Monthly Plan.

o    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

 

1.  Guarantee Overview . ShopProsTM offers new members a limited and conditional guarantee subject to the following terms and conditions:

2.  The Guarantee- If by the end of 12 months following Game Day , 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.

3.  Definitions

a.    GAME DAY– 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 following membership.

b.    OPERATING PROFIT – 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 illustrated below:

c.    RUN-RATE - is the total Operating Profit for months 10, 11, & 12 following Game Day.

d.   BASELINE - Represents the total operating profit for the same three months as the Run-Rate period preceding membership in ShopProsTM.

e.   ROI – is shown in the below example which has been calculated as follows.

            i.   Investment represents 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.

           ii.   Return represents the greater of:

1.     incremental Operating Profit during the Run Rate period compared to the Baseline.

2.     Incremental Operating Profit over the entire twelve-month period following Game Day.

          iii.   PRORATA REIMBURSEMENT – 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

4.  Conditions & Exceptions

a.    Conditions – To participate in the Guarantee, the following conditions must be met

            i.     Continuous membership for at least twelve months preceding the end of the Run- Rate Period.

           ii.     Unless specifically authorized by ShopProsTM, member will not undertake training or coaching services from any company other than ShopProsTM

          iii.     Member must apply “best efforts” towards completion the actions cited in the Business Plan within the time frames specified.

          iv.     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.

b.   Exceptions – The Guarantee is subject to the following exceptions

          i.   Force Majeure conditions that result in closure, temporary closure or other uncontrollable events that create material negative impact on the business.

         ii.   Member illness that materially impacts member’s ability to apply “best efforts”.

        iii.   Extraordinary expenditures that beyond those foreseen and planned for in the BusinessBuilderTM Plan.

         iv.   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 period.