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Licence Agreement for First Reference Human Resources and Payroll Compliance Online Products

This Licence Agreement is entered into between "The Subscriber" and First Reference Inc, regarding First Reference's human resources and payroll compliance online products (the "Licensed Products") which herein are The Human Resources Advisor, Ontario, Western and Atlantic editions, PaySource and HRinfodesk.

"Subscriber" includes: i) any person who/which has entered into a Subscriber agreement with First Reference, and ii) any person who/which accesses and/or uses the Features and/or Data of any licensed products.

Table of Contents

  1. Licence
  2. Intellectual Property and Licence for Use of Materials
  3. Activities and Use Excluded from Licence
  4. Termination
  5. LIMITED WARRANTIES AND LIMITATION OF LIABILITY
  6. Password and Username
  7. Release of Information
  8. Governing Law
  9. Effect of Agreement
  10. Force Majeure
  11. Notices
  12. Arbitration
  13. Assignability
  14. Language

1. Licence

1.1 First Reference grants the Subscriber a non-exclusive, non-transferable, limited licence to access First Reference's Licensed Products. First Reference's Licensed Products consist of various First Reference-owned and third party databases, services, functions, software programs and remotely-accessed gateways (collectively "Features"). The Subscriber is licensed to use content and data made available through the Features ("Data"). The Features are made available to users by First Reference for the sole purpose of enabling users to gain access to and manipulate the Data and to conduct research. Features may change from time to time and access to certain Data may be restricted. The Subscriber is licensed to use the Features and Data made available on First Reference's Licensed Products solely in the regular course of their human resources, payroll, employee management and/or records retention related work and research.

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2. Intellectual Property and Licence for Use of Materials

2.1 The Subscriber acknowledges that all intellectual property, including all copyright, trademarks, patents or rights to trade secrets in the Features and Data belongs to First Reference or its suppliers or licensors, as the case may be, and that Subscriber's rights do not extend beyond the limited licence expressly granted herein. Subject to Section 3, the Subscriber is permitted to:

  1. Use the Features and browse and search the Data;
  2. Download and temporarily store insubstantial portions of the Data to a storage device within the Subscriber's exclusive control, solely: (i) to display internally such downloaded data; and (ii) to quote and excerpt from such downloaded data (the parts of which are commentary, references and case law among others, being appropriately cited and credited) by electronic cutting and pasting or other means in reports, memoranda, management and employee or client communications and similar work product created by the Subscriber in the regular course of its work and research; and
  3. Print and make photocopies of insubstantial portions of the Data which result from browsing or searching for Subscriber's own use and to quote and excerpt from such downloaded Data (the parts of which are commentary, references and case law among others, being appropriately cited and credited) in reports, memoranda, management and employee or client communications and similar work product created by the Subscriber in the regular course of its work and research.

2.2 Certain Data and Features are or may in future be governed by Terms and Conditions of Use that are different from those set forth in this Agreement referred to as "Additional Terms." The Subscriber will be given an opportunity to review Additional Terms by receiving notice of such Additional Terms from First Reference Inc, which will be deemed to have been given by First Reference Inc. upon posting online on First Reference's website (www.firstreference.com), or may be given by First Reference as set out in Section 11. Additional Terms may be created or modified by First Reference upon First Reference giving the Subscriber notice of such new or modified Additional Terms. By using such aforesaid Data and Features governed by Additional Terms, the Subscriber agrees to and will be obligated to comply with all such Additional Terms as part of the Terms and Conditions of Use in this Agreement.

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3. Activities and Use Excluded from Licence

3.1 The Subscriber will not, without the written permission of First Reference:

  1. Copy all or part of the Features and/or Data, save and except insubstantial portions, onto a memory storage facility of any computer, and keep on such storage facility, provided that insubstantial portions may be downloaded and temporarily stored in a computer only for so long as the initial project of the Subscriber requiring it is continuing. Such temporary storage facility must consist preponderantly of Subscriber's work product;
  2. Use all or any part of the Features and/or Data in a Document Delivery Service, commercial time sharing, rental network, computer service, research service, service bureau business or interactive cable television arrangement; a "Document Delivery Service" herein means the service, whether or not established or conducted for profit, of making a copy of a work and supplying the copy to any individual or entity;
  3. Publish, sell, lease, rent, license, sub-license, transfer, market, distribute, redistribute or otherwise part with all or part of the Features and/or Data in any manner or in any form;
  4. Copy, modify, alter, disassemble, de-compile, translate or convert into human readable form, or reverse engineer, all or any part of the Features and/or Data;
  5. Use all or part of the Features and/or Data to develop any derivative works other than Toolkit scorecards, reports and action plans, any functionally compatible or competitive software, or a directory or database prepared for commercial sale; or
  6. Share forms downloaded by users in the Subscriber with any affiliates of Subscriber or any other party.

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4. Termination

4.1 First Reference may immediately terminate this Agreement by revoking all passwords if the Subscriber breaches or permits any breach of any provision of this Agreement. The Subscriber may terminate this Agreement immediately upon giving written notice to First Reference within 30 days of being deemed to have received notice from First Reference of Additional Terms under Section 2.2.

4.2 Upon termination of this Agreement:

  1. The provisions of Sections 5 and 6 will continue to apply between First Reference and the Subscriber following the termination;
  2. All Subscriber's rights hereunder will immediately cease; and
  3. The Subscriber will erase any Downloaded Data and/or Features, or portions thereof, improperly copied onto any computer controlled by the Subscriber.

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5. LIMITED WARRANTIES AND LIMITATION OF LIABILITY

5.1 FIRST REFERENCE DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE FEATURES AND DATA. FIRST REFERENCE PROVIDES THE FEATURES, FORMS AND DATA "AS IS", AND DOES NOT WARRANT THAT THE FUNCTIONS OR THAT THE OPERATION OR CONTENT WILL BE:

  1. UNINTERRUPTED, OR
  2. FREE FROM LIBELOUS CONTENT OR CONTENT WHICH IS AN INVASION OF PRIVACY, OR
  3. IDENTICAL TO THE ORIGINAL SOURCE FROM WHICH THE DATA OR FEATURES WERE OBTAINED, OR
  4. ACCURATE, OR
  5. COMPLETE, OR
  6. CURRENT, OR
  7. FREE FROM ANY SOFTWARE VIRUS OR OTHER HARMFUL COMPONENT.

5.2 FIRST REFERENCE WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY FIRST REFERENCE'S NEGLIGENT ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING, OR DELIVERING THE DATA.

5.3 FIRST REFERENCE WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF THE SUBSCRIBER OR OF ANY THIRD PARTY CLAIMED AGAINST THE SUBSCRIBER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR REVENUE OR FAILURE TO REALIZE EXPECTED SAVINGS, HOWEVER DERIVED.

5.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY STATUTE OR RULE OF LAW TO THE CONTRARY, SUBJECT TO SECTION 5.3, FIRST REFERENCE'S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND ANY SCHEDULES ATTACHED HERETO, WHETHER DIRECTLY OR INDIRECTLY, INCLUDING, WITHOUT LIMITATION, FROM OR IN CONNECTION WITH THE LICENCE, USE OR IMPROPER FUNCTIONING OF THE FEATURES AND/OR DATA SHALL NOT EXCEED ALL FEES PAID TO FIRST REFERENCE BY THE SUBSCRIBER FOR ACCESS TO FIRST REFERENCE'S LICENSED PRODUCTS PURSUANT TO THIS AGREEMENT. THE EXPRESSION "FIRST REFERENCE" IN THIS SECTION WILL BE DEEMED TO INCLUDE ANY LICENSORS OR THIRD-PARTY SUPPLIERS TO FIRST REFERENCE OF DATA, AND ALL GATEWAY PROVIDERS OF DATA THROUGH FIRST REFERENCE TO THE SUBSCRIBER.

5.5 IN NO EVENT WILL FIRST REFERENCE, ITS AFFILIATES AND/OR CONTRIBUTORS BE LIABLE TO SUBSCRIBER FOR ANY CLAIM(S) RELATING IN ANY WAY TO SUBSCRIBER'S INABILITY OR FAILURE TO PERFORM LEGAL OR OTHER RESEARCH OR RELATED WORK OR TO PERFORM SUCH LEGAL, TAX OR OTHER RESEARCH OR WORK PROPERLY OR COMPLETELY EVEN IF ASSISTED BY FIRST REFERENCE, ITS AFFILIATES OR CONTRIBUTORS, OR ANY DECISION MADE OR ACTION TAKEN BY SUBSCRIBER IN RELIANCE UPON DATA OR FEATURES.

5.6 SUBSCRIBER ACKNOWEDGES THAT PROVISION OF DATA AND FEATURES ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS AND LOSSES, INCLUDING THE INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA.

5.7 THE FEATURES AND DATA WERE NOT NECESSARILY PREPARED BY A PERSON LICENSED TO PRACTICE LAW OR ACCOUNTING OR TAXES IN A PARTICULAR JURISDICTION. FIRST REFERENCE IS NOT ENGAGED IN RENDERING LEGAL OR OTHER PROFESSIONAL ADVICE, AND IF SUBSCRIBER REQUIRES LEGAL OR OTHER EXPERT ADVICE, SUBSCRIBER SHOULD SEEK THE SERVICES OF COMPETENT LEGAL COUNSEL OR OTHER PROFESSIONAL. 5.8 FIRST REFERENCE DOES NOT RATIFY, ENDORSE, WARRANT, CONFIRM OR REPRESENT THE EXPERTISE OR COMPETENCE OF ANY OF THE INDIVIDUALS OR ORGANIZATIONS LISTED IN ANY DIRECTORIES.

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6. Password and Username

6.1 If the Subscriber's does not remember their password and/or user name, they will use the "Forgot your Password or Username?" link to access PaySource or HRA online to reset their password or username. If the Subscriber believes that their password and username is lost or being used by another unauthorized person, the Subscriber will notify First Reference by telephone and confirm in writing by email such notice. Upon receipt of notice, First Reference will make every effort to cancel the password as soon as is possible under the circumstances. The Subscriber will be responsible for all charges incurred prior to its cancellation by First Reference. First Reference reserves the right to change passwords at any time, subject to notice being given to the Subscriber.

6.2 Passwords are issued to the Subscriber and cannot be shared with any affiliates of Subscriber or any other party.

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7. Release of Information

7.1 For Subscribers through academic institutions, the Subscriber hereby authorizes the release to First Reference of information pertinent to this licence including Subscriber name, address, email address, status as student, faculty member or librarian, course of study and expected year of graduation. This authorization includes any permission required under any applicable information or privacy legislation anywhere in Canada. First Reference undertakes to use the information collected under this clause only for purposes directly related to this licence.

7.2 For all other Subscribers, the Subscriber hereby authorizes and warrants to First Reference that it has the authority to authorize the release to First Reference of Subscriber and user information pertinent to this licence, including: i) Subscriber name, address and email address, and ii) individual names and email addresses a of all users of Features and/or Data under this licence. This authorization includes any permission required under any applicable information or privacy legislation anywhere in Canada. First Reference undertakes to use the information collected under this clause only for purposes directly related to this licence.

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8. Governing Law

8.1 This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.

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9. Effect of Agreement

9.1 This Agreement (which includes all current and future Schedules and Additional Terms) embodies the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter. With effect after the expiry of the notice to the Subscriber, First Reference may amend the Terms and Conditions of this Agreement by giving at least 30 days' prior notice of the Additional Terms to the Subscriber in writing or online, subject to the Subscriber's termination rights under Section 4. Any other amendment must be in writing and signed by both First Reference and the Subscriber. Should any portion of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions will not be affected thereby. Failure of either party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

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10. Force Majeure

10.1 First Reference's performance under this Agreement is subject to interruption and delay due to causes beyond its reasonable control, such as acts of God, acts of any government or governmental authority, war or other hostility, terrorism, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labour dispute, inability to obtain necessary supplies, inability of any computer system or software to properly calculate dates.

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11. Notices

11.1 Except as otherwise provided herein, all notices must be in writing (including email):

To:

First Reference
Attn: Publisher
50 Viceroy, Unit 1
Concord, Ontario
L4K 3A7

Or

By email to: info@firstreference.com

To:

The Subscriber at: the most recent address in First Reference's records or online on the First Reference website or within the online product.

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12. Arbitration

12.1 Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to:

  1. This Agreement;
  2. The Features or Data;
  3. Oral or written statements, advertisements or promotions relating to this Agreement or to the Features or Data; or
  4. The relationships which result from this Agreement (including relationships with third parties who are not signatories to this Agreement) (collectively the "Claim"); will be referred to and determined by arbitration (to the exclusion of the courts). Subscriber agrees to waive any right Subscriber may have to commence or participate in any class action against First Reference related to any Claim and, where applicable, Subscriber also agrees to opt out of any class proceedings against First Reference.

12.2 If Subscriber has a Claim, Subscriber should give written notice to arbitrate to First Reference at the address specified in Section 11. If First Reference has a claim, First Reference will give Subscriber notice to arbitrate at Subscriber's address as required by Section 11. Arbitration of Claims will be conducted in such forum and pursuant to such rules as Subscriber and First Reference agree upon, and failing agreement will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration in the Province of Ontario that are in effect on the date of the notice to arbitrate.

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13. Assignability

  1. The Subscriber may not assign, sub-license, or otherwise transfer or encumber this Agreement, or any of Subscriber's rights or obligations under this Agreement, to any person except with the prior written consent of First Reference.
  2. First Reference may assign or transfer this Agreement and/or any rights or obligations hereunder to any affiliate of First Reference's, and First Reference or such affiliate assignee may assign or transfer this Agreement and/or any rights or obligations hereunder to any third-party successor to all or substantially all of the business or assets of First Reference, in each case without the prior consent of Subscriber.

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14. Language

14.1 At the request of the parties, the official language of this Agreement and all communications and documents relating hereto is the English language and the English-language version will govern all interpretation of the Agreement. À la demande des parties, la langue officielle de la présente convention ainsi que toutes communications et tous documents s'y rapportant est la langue anglaise, et la version anglaise est celle qui régit toute interprétation de la présente convention.

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Updated February 22, 2018