SOFTWARE END USER LICENSE AGREEMENT
This Software End User License Agreement (“Agreement”) effective as of the date of execution or electronic acceptance of this Agreement, as the case may be ( “Effective Date”), is a binding agreement between GVE GLOBAL VISION INC. (“Licensor”) and the entity licensing the Software (“You” or “Licensee”) (Licensor and Licensee shall hereinafter collectively be referred to as the “Parties” or individually as a “Party”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY INSTALLING, DOWNLOADING, ACCESSING, COPYING OR USING THIS SOFTWARE, OR SIGNING THIS AGREEMENT YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT YOU MUST NOT INSTALL AND MUST IMMEDIATELY REMOVE THE SOFTWARE AND ALL COPIES FROM YOUR SERVER. LAWFUL USE OF THE SOFTWARE IS CONDITIONAL UPON YOUR COMPLIANCE WITH THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THE TERMS FOUND BELOW.
LICENSOR OWNS ALL INTELLECTUAL PROPERTY IN THE SUPPLIED SOFTWARE. LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY SIGNING THIS AGREEMENT, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT ALLOW FOR THE INSTALLATION OF THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
For purposes of this Agreement, the following terms have the following meanings:
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Authorized Users” means the individual person(s) authorized to use the Software pursuant to the license granted under this Agreement, Authorized Users may be Affiliates, employees, or service providers of Licensee.
“Code” means the computer programming code of the Software including, without limitation, Source Code and Object Code.
- “Source Code” means the human-readable form of the computer programming code of the Software, including all comments and any procedural code such as job control language statements.
- “Object Code” means the machine-readable form of the computer programming code of the Software.
“Documentation” means any and all manuals, instructions, and other documents and materials that Licensor provides or makes available to Licensee in any form or medium which describe the functionality, components, features or requirements of the Licensed Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trade-mark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Person” means an individual, corporation, partnership, joint venture, governmental authority, unincorporated organization, trust, association or other entity.
“Software” means the software program(s) that are (i) in object code format licensed from Licensor; or (ii) embedded in or pre-loaded on Licensor hardware. Software shall include any and all setup, installation and configuration software and any related software downloaded through Licensor’s website or other service, and includes without limitation, any and all copies, modifications, updates, upgrades, firmware, enhancements and new releases of the Software.
“Third Party” means any Person other than Licensee or Licensor.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Licensor.
2. LICENSE GRANT AND SCOPE
Subject to and conditional on Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license, to use, solely by and through its Authorized User(s), the Software and Documentation, solely as set forth in this Section and subject to all conditions and limitations set forth in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized User(s), to:
- Install in accordance with the Documentation, one or more copies of the Software, lawfully acquired by Licensee, on one or more computers owned, and controlled by Licensee;
- Use and run the Software as properly installed in accordance with this Agreement and the Documentation. Such use is permitted only (a) on the computer(s) on which the Software is installed; and (b) only for Licensee’s internal business operations; and
- Download or otherwise obtain the corresponding Documentation in accordance with this Agreement and use such Documentation solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee:
- will be the exclusive property of Licensor;
-will be subject to the terms and conditions of this Agreement; and
-must include all trademark, copyright, patent and other Intellectual Property Rights notices contained in the original.
3. THIRD PARTY MATERIALS
The Software may include Third-Party Materials, software, content, data or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). A list of all materials, if any, included in the Software and provided under Third-party Licenses may be provided to Licensee upon written request. The terms of such Third-Party Licenses shall apply in lieu of the terms of this Agreement with respect to such software, content, data or other materials, including related documentation, that are owned by Persons other than Licensor.
4. USE RESTRICTIONS
Except as otherwise expressly set forth in this Agreement, Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(a) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2 of this Agreement;
(b) provide any other Person that is not an Authorized User, with access to or use of the Software or Documentation;
(c) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(e) (i) reverse engineer, disassemble, decompile, decode, translate, modify, or create any derivative work of the Software or Documentation; (ii) disclose, publish, sublicense, sell, lend, rent, lease or transfer the Software and Documentation; (iii)copy the Software onto any public or distributed network;(iv) use the Software to operate in or as a time-sharing, outsourcing, service bureau, application service provider or managed service provider environment; (v) copy or reproduce the Software or Documentation; or (vi) otherwise attempt to discover the source code or structural framework of the Software or derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service (SaaS), cloud or other technology or service;
(h) use the Software or Documentation in violation of any law, regulation or rule; or
(i) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service
5. RESPONSIBILITY FOR USE OF SOFTWARE
Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized User(s) or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this Agreement.
In addition to any and all remedies available to Licensor, this Agreement and license will terminate automatically if Licensee uses or permits the use of the Software or Documentation in any manner not permitted by this Agreement.
The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software. Licensee shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.
Licensor may, in Licensor’s sole discretion, audit Licensee’s use of the Software to ensure Licensee’s compliance with this Agreement, provided that (i) any such audit shall be conducted on not less than thirty (30) days prior notice to Licensee, and (ii) no more than one (1) audit may be conducted in any twelve (12) month period except where good cause is shown. In the event of termination of this Agreement, Licensor may, in its sole discretion, audit Licensee’s systems within twelve (12) months following the termination to ensure Licensee has ceased use of the Software and removed all copies of the Software from such systems as required hereunder. Licensee shall fully cooperate with Licensor’s personnel conducting such audits and provide all reasonable access requested by Licensor to records, systems, equipment, information and personnel, including machine IDs, serial numbers and related information. Licensor shall only examine information directly related to Licensee’s use of the Software. Licensor may conduct audits only during Licensee’s normal business hours and in a manner that does not unreasonably interfere with Licensee’s business operations.
If the audit determines that Licensee’s use of the Software exceeds or exceeded the use permitted by this Agreement, then:
(a) Licensee shall, within thirty (30) days following the date of Licensor’s written notification thereof, pay to Licensor the retroactive License Fees for such excess use, obtain and pay for a valid license to bring Licensee’s use into compliance with this Agreement. In determining Licensee Fee payable in accordance with the foregoing, (i) unless Licensee can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by Licensor hereunder and continued uninterrupted thereafter, and (ii) the rates for such licenses shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed before its commencement (or deemed commencement).
(b) If the use exceeds or exceeded the use permitted by this Agreement by more than ten percent (10%), Licensee shall also pay to Licensor, thirty (30) days following the date of Licensor’s written request therefor, Licensor’s costs incurred in conducting the audit.
(c) If the use exceeds or exceeded the use permitted by this Agreement by more than twenty percent (20%), Licensor shall also have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Licensee.
Licensor’s remedies set forth in this Agreement are cumulative and are in addition to, and not in lieu of, all other remedies
Licensor may have at law or in equity, whether under this Agreement or otherwise.
7. MAINTENANCE AND SUPPORT
Any maintenance and support services (“Support”) offered by Licensor shall be provided in accordance with the “GVE Support and Maintenance Agreement” which may be consulted at support.globalvision.co.
During the Term, Licensor may provide Licensee with “Maintenance Releases” (including updated Documentation) that Licensor may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance Releases, on being provided by Licensor to Licensee hereunder, are deemed licensed Software subject to all applicable terms and conditions of this Agreement. Licensee will install all Maintenance Releases as soon as practicable after receipt. Licensee does not have any right hereunder to receive any new versions of the Licensed Software that Licensor may, in its sole discretion, release from time to time.
Maintenance Releases may also include provision of such updates, upgrades, new releases required to operate the Software, patches and other error corrections as deemed necessary by Licensor (collectively “Updates”). Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide Updates via download from a website designated by Licensor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Updates via any other media.
Support shall not include any new technology or new modules or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.
Licensor reserves the right to make the provision of maintenance and support services, including all or any Maintenance Releases or Updates, conditional on Licensee’s registration of the copy of Software for which support is requested. Licensor has no obligation to provide Maintenance Releases, Updates, or Support Services:
(a) for any but the most current version or release of the Software;
(b) for any copy of Software for which all previously issued Updates have not been installed;
(c) if Licensee is in breach under this Agreement; or
(d) for any Software that has been modified other than by Licensor or with Licensor’s prior written authorization, or that is being used with any hardware, software, configuration or operating system not specified in the Documentation or expressly authorized by Licensor in writing.
8. COLLECTION AND USE OF INFORMATION
Licensee acknowledges that Licensor may, directly or indirectly, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through the provision of maintenance and support services and through security measures included in the Software as described in this Agreement. Licensor will have no responsibility or liability for: (a) the accuracy of data stored or collected; and (b) failure by Licensor to provide protections for such data stored or collected; and Licensee acknowledges that Licensor systems are not intended for management or protection of such information and Licensee assumes all risks involved.
Licensee agrees that Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:
(a) improving the performance of the Software or developing Updates; and
(b) verifying Licensee’s compliance with the terms of this Agreement and enforcing Licensor’s rights, including all Intellectual Property Rights in and to the Software.
Licensor will employ reasonable commercial information security measures in accordance with Licensor’s Personal Information and Data Management Policy as amended from time to time, a current copy of which is available at https://support.globalvision.co/en/articles/3016784-privacy-policy . Licensee represents and warrants that it will comply with all applicable laws relating to the protection of personal information, including without limitation, the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”), as applicable, and all applicable Canadian provincial and international privacy requirements governing the collection, use and disclosure of personally identifiable information and will process and store personally identifiable information only in accordance with applicable privacy laws.
In connection with this Agreement, each Party (as the "Disclosing Party") may disclose or make available to the other Party (as the “Receiving Party") Confidential Information. "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, samples, organizational structure and internal practices, business operations, plans, strategies, customers, and pricing and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as "confidential", including but not limited to:
- unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, software programs, unpublished patent applications and other confidential intellectual property;
- designs, specifications, documentation, components, source code, object code, computer chips, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing; and
- other information that would reasonably be considered non-public, confidential or proprietary given the nature of the information and the Disclosing Party’s business.
“Confidential Information” does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure before such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its representatives' non-compliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
If the Receiving Party or any of its representatives is compelled by applicable Law to disclose any Confidential Information, then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and before such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek an injunction, protective order or other remedy or waive its rights; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking an injunction, protective order or other limitations on disclosure. If the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and shall use commercially reasonable efforts to obtain assurances from the applicable court or other competent authority that such Confidential Information will be afforded confidential treatment.
10. INTELLECTUAL PROPERTY RIGHTS AND INDEMNIFICATION
1.The Software and Documentation, including, without limitation, its object code and source code, whether or not provided to Licensee, is strictly confidential to Licensor and comprises valuable patent, copyright, trade secret, trademark, mask work and/or other proprietary rights of Licensor. Licensor owns exclusively and reserves all right, title, and interest in and to the Software and Documentation, including, without limitation, all intellectualproperty rights in and to the Software, except to the extent of the limited Software use license granted to Licensee in this Agreement and Order Form. Licensee owns exclusively and reserves all right, title, and interest in and to any Licensee data, including, without limitation, all intellectual property rights therein.
2. Licensor shall retain all right, title and interest in the Software and all related Intellectual Property and proprietary rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any title, intellectual property or ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions and restrictions under this Agreement. Licensor reserves and shall retain its entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
3. Licensee acknowledges and agrees that the Software and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Software, all future updates and upgrades, and all other improvements, revisions, corrections, bug-fixes, hotfixes, patches, modifications, enhancements, releases, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Software, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of Licensor, having great commercial value to Licensor.
4. In the event of a third-party claim or action filed against Licensee based solely on its use of the Software and/or Documentation in strict adherence to the terms of this Agreement, to the extent that it based on a claim that the Software infringes a valid United States or Canadian intellectual property right (an “IP Claim”), Licensor will indemnify, defend, and hold harmless Licensee and its Affiliates from and against such IP Claim and any liabilities, damages, settlements, awards or costs or expenses (including reasonable attorney’s fees) incurred in connection with such IP Claim subject to the limitations and requirements outlined below and provided that:
(a) Licensee immediately notifies Licensor of the IP Claim, without delay;
(b) Licensee provides such assistance as is reasonably requested by Licensor in defending against such IP Claim; and
(c) Licensee gives Licensor sole control over the defense and settlement of such IP Claim.
5. Notwithstanding the above, Licensor will have no liability or obligation to Licensee to the extent that the IP Claim arises out of or results from Licensee’s use of the Software other than as permitted by Licensor.
6. If any IP Claim is made, Licensor will use reasonable efforts, in addition to its indemnification obligations above, at its sole option and without further obligation to Licensee either to: (i) procure the right for Licensee to continue using the Software and/or Documentation, (ii) replace or modify the Software and/or Documentation so that it becomes non-infringing without any material loss in its functionality; (iii) if such remedies are not reasonably available, to require return of the Software and/or Documentation including all copies thereof and provide a prorated refund of the price Licensee paid for the Software on the basis of the price of the Software depreciating to zero over three years on a straight-line basis. Licensee agrees to indemnify and defend Licensor against any claim or action filed against Licensor to the extent that it is based on a claim that Licensee’s design, integration, specification, instruction, combination, connection, operation, or particular use infringes a valid U.S. or Canadian intellectual property right.
7. Notwithstanding anything to the contrary contained in the Agreement, neither Licensor nor any of its licensors or suppliers makes any warranty of noninfringement or otherwise, and Licensor and its licensors and suppliers will have no obligation to defend or indemnify Licensee for any claims, demands, losses, damages, legal costs or expenses made against or incurred by Licensee for infringement of any third party patent, including contributory infringement and inducement to infringe, with respect to Licensee’s use of the Software and any associated services to the extent where such claims of alleged infringement arise from: (a) the sale or use of the Software pursuant to this Agreement or the provision of any service provided by Licensor in combination with any product or service not provided by or on behalf of Licensor; (b) Licensee’s alteration or modification of the Software; (c) Licensee’s failure to implement corrections or modifications provided by Licensor if informed that such implementation would prevent the infringement; (d) Licensor’s implementation of a software design or elements or features, in whole or in part, provided by Licensee or requested by Licensee (e) the provision of information, materials, instructions or specifications by or on Licensee’s behalf or any third party; and in connection or operation of the Software with or in combination with hardware or software not provided or authorized by Licensor; (f) allegations that Licensor, Licensee, or the Software indirectly infringes, including by inducing or contributing to another’s infringement; (g) any claim or counterclaim that was made in response to a lawsuit or proceeding first filed by Licensee alleging patent infringement; or (h) any claim asserting that Licensee willfully infringed.
8. Licensor will not be responsible for determining whether Licensee requires a license to any third-party patents, or obtaining any such license on Licensee’s behalf, or paying any fees relating to any such license.
9. THIS SECTION STATES LICENSOR’S ENTIRE OBLIGATION AND LICENSEE’S EXCLUSIVE REMEDY FOR CLAIMS OF PATENT OR COPYRIGHT INFRINGEMENT OR TRADE SECRET MISAPPROPRIATION RELATED TO THE SOFTWARE.
11. FEES AND PAYMENT
License Fees. All License Fees are non-refundable and are payable in the manner set forth in Licensor’s General Terms & Conditions which may be consulted at https://support.globalvision.co/en/articles/2347816-terms-and-conditions .
Support Fees. (i) License Subscription: Support shall be offered by Licensor to Licensee free of charge throughout the term of the subscription (ii) Perpetual License: Support shall be offered by Licensor to Licensee free of charge for the first twelve (12) months following the date of acquisition, in accordance with Licensor’s General Terms & Conditions or any other negotiated terms and conditions, as may be the case. Any renewal of maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full. All Support Fees for additional Software Support services purchased by Licensee shall be quoted separately and will be payable subject to the terms and conditions expressed in such quote.
12. TERM AND TERMINATION
The term of this Agreement commences as of the Effective Date and will continue in effect for one (1) year from such date unless terminated earlier under any of the Agreement's express provisions (“Term”).
This Agreement will automatically renew for additional successive one (1) year Terms unless earlier terminated under any of the Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days before the expiration of the then-current term (each, a “Renewal Term")
This Agreement may be terminated at any time:
- by Licensor, effective on written notice to Licensee, if Licensee fails to pay any amount when due under this Agreement, where such failure continues for more than thirty (30) days after Licensor's delivery of written notice thereof;
- by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
- by Licensor, effective immediately, if Licensee: (i) is dissolved, liquidated or wound-up or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any federal or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver, receiver-manager or custodian for all or a substantial part of its property.
Upon termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all License Fees and Support Fees, if applicable, that may have become due before such expiration or termination or entitle Licensee to any refund.
The provisions set forth in the following Sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 1 (Definitions), Section 9 (Confidentiality), Section 10 (Intellectual Property Rights and Indemnification), this Section 12, Section 13 (Limited Warranties, Exclusive Remedy and Disclaimer), Section 14 (Limitations of Liability) and Section 15 (General).
13. LIMITED WARRANTIES, EXCLUSIVE REMEDY, AND DISCLAIMER
1. Solely with respect to Software for which Licensor receives a License Fee (paid in full), Licensor warrants that for a period of twelve (12) months following its acquisition, any media on which the Software is provided, if properly installed on a computer meeting the specifications set forth in and operated in accordance with the Documentation, will perform substantially in conformance with the Documentation and be free of material damage and defects in materials and workmanship under normal use.
2. Licensor does not warrant that the Software will be uninterrupted or error-free or that defects will be corrected. In the event that during the warranty term the Software fails to substantially perform in accordance with the Documentation, Licensor will use commercially reasonable efforts to correct the problem. If Licensor is unable to resolve the problem, Licensor will, at its sole discretion, either: (a) replace the Software, (b) install a new release of the Software when it becomes generally available, or (c) return the Software to a prior release. The foregoing is Licensor’s entire liability and Licensee’s sole and exclusive remedy under the above limited warranty.
3. Exclusion of Warranty: THE ABOVE LIMITED WARRANTY WILL NOT APPLY IF: (i) THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THIS AGREEMENT OR THE DOCUMENTATION, (ii) THE SOFTWARE HAS BEEN ABUSED, DAMAGED OR NEGLIGENTLY SERVICED OR MAINTAINED BY ANYONE OTHER THAN LICENSOR; (iii) THE SOFTWARE OR ANY PART THEREOF HAS BEEN MODIFIED OR DAMAGED BY ANY ENTITY OTHER THAN LICENSOR OR IS INSTALLED, INTEGRATED OR USED IN COMBINATION WITH PRODUCTS NOT APPROVED BY LICENSOR; (iv) A MALFUNCTION IN THE SOFTWARE HAS BEEN CAUSED BY ANY EQUIPMENT OR SOFTWARE NOT SUPPLIED BY LICENSOR; (v) LICENSEE BREACHES A MATERIAL TERM OF THIS AGREEMENT; (vi) LICENSEE INSTALLS OR USES THE SOFTWARE ON OR IN CONNECTION WITH ANY HARDWARE OR SOFTWARE NOT EXPRESSLY AUTHORIZED BY LICENSOR IN WRITING; OR (vii) LICENSEE MISUES THE SOFTWARE.
4. The limited Software warranties provided under this Agreement are subject to Licensor receiving timely written notice of any nonconformity with as much specificity as is known and as soon as Licensee becomes aware of such nonconformity, but in any event prior to the expiration of the Term. Licensor shall have the right to inspect and test the Software to determine, in its reasonable opinion, whether the nonconformity is covered under the warranty.
5. LICENSEE ASSUMES FULL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE LICENSEE’S INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF THE SOFTWARE AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE SOFTWARE. LICENSOR MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE OR DOCUMENTATION WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE INTERRUPTION OR ERROR FREE.
6. TO THE FULLEST EXTENT PERMITIED BY LAW, LICENSOR AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, TERMS AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT AND THIS IS SO ACKNOWLEDGED BY LICENSEE.
7. THE SOFTWARE IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES OR WEAPONS SYSTEMS IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
8. IMPORTANT NOTE: Nothing in this Agreement is intended to or shall be construed as excluding or modifying any statutory rights, warranties or conditions which may be applicable to this Agreement, the Software or Documentation, and which by virtue of any provincial, state or federal fair trade or other consumer legislation may not be modified or excluded.To the extent such legislation is applicable to Licensee’s license of the Software or is required by such legislation, any required warranty is limited in duration to ninety (90) days from the date of installation and Licensor and its licensor’s liability for any breach of any such warranty or condition shall be and is hereby limited to either: (a) the replacement of such Software; or (b) the correction of any defect in such Software or Documentation as Licensor, at its sole discretion, may determine to be necessary to correct the defect.All limited warranties are void if failure of the Software has resulted from Acts of God, accident, abuse, misapplication or electrical surge or any other cause beyond Licensor's control.
9. Licensor does not warrant or represent that the Software is immune from fraudulent or unauthorized intrusion or use (including its use to interconnect to long distance networks, computer virus and/or other malicious code of whatever nature) and accordingly Licensor will not be liable for any loss, damage, cost or expense directly or indirectly occasioned thereby.
10. THE FOREGOING WARRANTIES DO NOT APPLY, AND LICENSOR STRICTLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
11. If Licensor repairs or replaces the Software, the warranty will continue to run from the initial date specified on the Order Form and not from Licensee’s receipt of the repair or replacement. The remedies set forth in this Section are Licensee’s sole remedies and Licensor’s sole liability under this Limited Warranty, subject to purchase of any additional Warranty.
12. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR PROVIDES NO CONDITION, WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
14. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANY SUGGESTION TO THE CONTRARY HEREIN:
- EXCEPT WITH RESPECT TO THE EXPRESS WARRANTIES SET FORTH IN LICENSOR’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 HEREIN, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY, UNDER ANY LEGAL THEORY, FOR : (a) ANY: (i) USE, INTERRUPTION, ERRORS, DEFECT, HARMFUL CODE, SECURITY BREACH, DELAY OR INABILITY TO USE THE SOFTWARE OR ANY HARDWARE; (ii) LOST REVENUES OR PROFITS; (iii) DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS, REPUTATION OR GOODWILL; (iv) LOSS OR CORRUPTION OF DATA; (v) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN; (vi) FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION; (vii) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (viii) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (ix) BREACHES IN SYSTEM SECURITY; OR (b) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR (c) INABILITY TO ACHIEVE ANY INTENDED RESULT OR BE COMPATIBLE WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICE, IN EACH CASE WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LICENSOR OR ANY OF ITS SUPPLIERS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.LICENSOR FURTHER DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- EXCEPT WITH RESPECT TO (I) LICENSOR’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT OR (II) LICENSOR’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF LICENSOR AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER DIRECT OR INDIRECT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO LICENSOR UNDER THIS AGREEMENT FOR THE SOFTWARE OR SERVICE THAT IS THE SUBJECT OF THE CLAIM. NOTWITHSTANDING THE ABOVE, UNDER NO CIRCUMSTANCE SHALL LICENSOR BE LIABLE FOR ANY THIRD-PARTY MATERIALS, WHICH ARE PROVIDED TO LICENSOR “AS IS” WITHOUT WARRANTY.
- THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- EXCEPT IN THE EVENT OF (I) LICENSEE’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT OR (II) LICENSEE’S DIRECT OR INDIRECT LIABILITY FOR ANY MISAPPROPRIATION OR UNAUTHORIZED USE OF ANY OF LICENSOR’S SOFTWARE AND/OR INTELLECTUAL PROPERTY OR ANY PRODUCT DELIVERED TO LICENSEE BY LICENSOR, IN NO EVENT WILL LICENSEE OR ITS AFFILIATES BE LIABLE TO LICENSOR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, IN EACH CASE WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LICENSOR OR ANY OF ITS AFFILIATES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION SHALL RELIEVE LICENSEE OR DIMINISH ITS OBLIGATION IN ANY WAY WHATSOEVER FROM MAKING PAYMENT OF FEES TO LICENSOR AS DUE UNDER THIS LICENSE OR AS SET OUT IN ANY INVOICE FROM LICENSOR TO LICENSEE.
- EXCEPT WITH RESPECT TO (I) LICENSEE’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, (II)LICENSEE’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT AND (III) LICENSEE’S DIRECT OR INDIRECT LIABILITY FOR ANY MISAPPROPRIATION OR UNAUTHORIZED USE OF ANY OF LICENSOR’S SOFTWARE AND/OR INTELLECTUAL PROPERTY OR ANY PRODUCT DELIVERED TO LICENSEE BY LICENSOR, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF LICENSEE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER DIRECT OR INDIRECT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT INVOICED BY LICENSOR UNDER THIS AGREEMENT FOR THE SOFTWARE OR ANY OTHER PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM.
Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties.
Governing Law. This Agreement is governed by and construed in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the courts of the Province of Quebec, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at Law, in equity or otherwise.
Notification Obligations. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered with written confirmation of receipt; or (ii) on the date sent by facsimile or e-mail, with confirmation of transmission, if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.
Force Majeure. Neither Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay of performance if caused by or results from acts beyond the obligated party’s reasonable control, including without limitation: acts of God; pandemics; flood, fire, earthquake, tsunami or explosion; electrical, internet or telecommunication outage that is not caused by the obligated party; acts of war, terrorism, hostility, sabotage, invasion, riot or other civil unrest; government restrictions (including cancellation of export licenses), actions, embargoes or blockades in effect on or after the date of this Agreement; other events outside the reasonable control of the obligated party; or national or regional emergency (each of the foregoing, a “Force Majeure Event”).
Entire Agreement. This Agreement, all schedules and exhibits attached hereto, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
Assignment. Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the other Party’s prior written consent, which consent shall not be unreasonably withheld. Any purported assignment, delegation or transfer in violation of this Agreement is void. This Agreement is binding upon and enures to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Amendment; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Export Controls. Licensee agrees to comply fully with all relevant export laws and regulations of Canada, United States, and Europe and any other applicable export laws and regulations to ensure that the Software is not exported directly, or indirectly, in violation of such laws. Licensee shall not export the Software to any individual, entity or country prohibited by applicable law or regulation. Licensee remains responsible, at its own expense, for any local government permits, licenses or approvals required for importing and/or exporting the Software.
Beta Software.If the Software has been identified by Licensor as “Evaluation” or “Beta” Software, then the provisions of this section apply and shall supersede any other conflicting term of this Agreement. Licensee’s royalty-free, nontransferable, limited license to use the Evaluation or Beta Software, for evaluation purposes only, is limited to thirty (30) days unless otherwise agreed to in writing by Licensor. The Evaluation or Beta Software may contain errors or other problems that could cause system or other failures and data loss. Consequently, Evaluation or Beta Software is provided “AS IS” and Licensee disclaims any warranty or liability obligations to Licensee of any kind. Support is not available for Evaluation or Beta Software. Any information about the Evaluation or Beta Software gathered from its use shall be used solely for evaluation purposes and shall not be provided to any third parties. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, LICENSOR’S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS UNDER THIS AGREEMENT RELATED TO EVALUATION OR BETA SOFTWARE, OR IN CONNECTION WITH EVALUATION SOFTWARE, SHALL BE LIMITED TO THE SUM OF FIFTY ($50) U.S. DOLLARS OR THE EQUIVALENT IN LOCAL CURRENCY IN TOTAL.