END USER LICENSE AGREEMENT
1.1. “Agreement” shall mean this End User License Agreement.
1.2. “Feedback” shall mean any ideas suggestions and other feedback provided by Licensee to Licensor in relation to the Software
1.3. “Intellectual Property Rights” includes all patents, inventions, trade-marks, services marks, registered designs, integrated circuit topographies, including application for any of the foregoing, as well as any copyrights, design rights, know-how, confidential information, trade secrets, and any other similar rights in Canada and in any other country.
1.4. “Licensed Platform” shall mean the device on which the Software is being used.
1.5. “Software” shall mean the Licensor’s computer program in object code form, any files delivered by the Licensor (via online transmission or otherwise) to patch, update, or otherwise modify the program, and any related printed or electronic user documentation.
2. GRANT OF LICENCE
2.1. Through this purchase, Licensor hereby grants and Licensee hereby accepts, a personal, limited, non-transferrable, and non-exclusive license (the “License”) to use the Software non-commercially on a single authorized License Platform. Any rights not expressly granted under this Agreement shall be reserved for Licensor. Source code as well as any other information pertaining to the logic, design, or structure of the Software is specifically excluded from the License granted hereunder. Title to the Software shall at all times remain with Licensor and all Intellectual Property Rights of whatever nature with respect thereto shall be and remain the exclusive property of Licensor.
3. USE OF THE SOFTWARE – RESTRICTIONS AND LIMITATIONS
3.1. Subject to the terms of this Agreement, Licensee has the right under the license granted herein to install, execute or run the Software on Licensee’s Licensed Platform.
3.2. Licensee must provide at Licensee’s own expense the Licensed Platform, equipment, Internet connections and/or service plans to access and use the Software. Licensee acknowledges that use of the Software may result in additional charges to the Licensee by its wireless carrier for data, messaging and/or other wireless access. Licensee is solely responsible for any such costs Licensee incurs to use the Software.
3.3. Licensee may not modify the Software nor merge any part of it with another software program. Licensee may not attempt to determine the source code for the Software, nor modify, reprogram, translate, disassemble, decompile, or otherwise reverse engineer the Software (except to the extent applicable laws specifically prohibit such restriction). Licensee may not, except as expressly provided herein, use, disclose, sublicense, lease, rent, or transfer the Software, in whole or in part, to any third party, or provide the benefit of its use to any third parties via a service bureau, time sharing or, application service provider services.
3.4. Licensee may not copy the Software.
4.1. All terms, conditions and obligations of this Agreement will be deemed to be accepted by Licensee by using the Software as described herein.
5.1. The term of this Agreement begins upon acceptance as described herein and is perpetual.
6.1. This Agreement shall remain in effect until terminated as provided herein. If Licensee breaches any provision of this Agreement, the license and this Agreement are automatically terminated without notice and all of Licensee’s rights hereunder shall immediately cease. The termination of this license and/or this Agreement shall not prejudice or affect the accrued rights or claims of Licensor nor shall it release Licensee from any of the restrictions of this Agreement concerning use, possession, copying, or reverse engineering of the Software, all of which shall survive termination.
6.2. Licensee must cease using the Software and delete any installed copies thereof from Licensee’s Licensed Platform upon termination of this Agreement.
7. PROPRIETARY RIGHTS
7.1. Licensee acknowledges that the Software and all related information is proprietary to Licensor and that all rights thereto, including all Intellectual Property Rights, are owned by Licensor. Licensee further acknowledges that the Software contains trade secrets of Licensor and that the Software is protected by Canadian and international copyright and other intellectual property laws and treaties. Licensee bears all risk of loss of the Software while it is in Licensee’s possession or under Licensee’s care and control. Licensee agrees to notify Licensor immediately of the unauthorized possession or use of the Software. Licensee will promptly furnish full details of such unauthorized possession or use to Licensor, will assist in preventing the recurrence of such possession or use, and will cooperate, at Licensee’s expense, with Licensor to protect Licensor’s proprietary rights, including any Intellectual Property Rights. Licensee’s compliance with this provision shall not be construed as a waiver of any right of Licensor to recover damages from, or obtain other relief against, Licensee.
7.2. Licensee acknowledges and agrees that the Software is of an extraordinary and unique character and that the injury which would be suffered by Licensor in the event of a breach by Licensee of any of its obligations hereunder would be irreparable and otherwise of a character which could not be fully compensated for solely by recovery of monetary damages. Accordingly, Licensee agrees that, without in any way limiting the other rights or remedies of Licensor, Licensor shall be entitled to apply to obtain equitable relief, restraining order, injunction, decree, or remedy, as may be appropriate to restrain any breach or threatened breach of this Agreement.
8. ASSIGNMENT OF RIGHTS
8.1. Licensor may assign all of its rights and obligations set out in this Agreement and upon such assignment shall be released from all obligations hereunder. The assignee shall then assume all the rights and obligations of Licensor hereunder and become Licensor under this Agreement.
8.2. Licensee may not transfer or assign any of the rights or obligations under this Agreement to any other person or legal entity.
9. PATCHES AND UPDATES
9.1. Licensor may deploy or provide patches, updates and modifications to the Software that must be installed for continued use by Licensee. Licensor may update the Software remotely without Licensee’s knowledge and Licensee hereby grants consent to Licensor to deploy and apply such patches, updates and modifications.
10.1. Licensee agrees and acknowledges that in exchange for the use of the Software all Feedback may be used by Licensor to improve and/or enhance the Software and/or other Licensor products. Accordingly, Licensee agrees to grant Licensor an exclusive, perpetual, irrevocable, fully transferable, and sub-licensable worldwide right and license to use or otherwise exploit all Feedback provided by Licensee to Licensor without any limitation whatsoever and without any further notice or compensation to Licensee.
11. NO WARRANTIES
11.1. THE SOFTWARE IS PROVIDED 'AS IS' WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS OF A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT OR ASSUME RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN THE SOFTWARE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONALITY OF THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, NOR THAT THE SOFTWARE WILL RUN UNINTERRUPTED OR ERROR FREE. LICENSOR IS NOT RESPONSIBLE FOR THE RESULTS OF LICENSEE’S USE OF THE SOFTWARE OR FOR ANY ACTION TAKEN BY LICENSEE OR THIRD PARTIES ON THE BASIS THEREOF. LICENSOR MAKES NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY THE TRANSMISSION OF A COMPUTER VIRUS, WORM, TIME BOMB, LOGIC BOMB, OR OTHER SUCH COMPUTER PROGRAM.
LIMITATION OF LIABILITY; INDEMNITY
11.2. THE MAXIMUM AGGREGATE LIABILITY OF THE LICENSOR, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, DISTRIBUTORS, AND RE-SELLERS, UNDER THIS LICENSE FOR ALL LOSSES, DAMAGES, EXPENSES, OR INJURIES, WHETHER UNDER CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE, AND STRICT LIABILITY), BY STATUTE, OTHER LEGAL THEORY, OR OTHERWISE, HOWSOEVER ARISING, SHALL BE LIMITED TO THE GREATER OR THE LICENSE FEES PAID BY LICENSEE HEREUNDER OR ONE HUNDRED CANADIAN DOLLARS (CAD$100), REGARDLESS OF A BREACH OF ANY FUNDAMENTAL TERM OR A FINDING THAT THE REMEDIES PROVIDED HEREIN FAILED WITH RESPECT TO THEIR ESSENTIAL PURPOSE. NO ACTION OR PROCEEDING RELATING TO THIS LICENSE MAY BE COMMENCED BY LICENSEE MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES.
11.3. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR: (1) ANY AMOUNTS REPRESENTING LOSS OF PROFITS OR REVENUES HOWSOEVER ARISING; (2) SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SAME; (3) DAMAGES OR EXPENSES ARISING FROM CHANGES IN OPERATING CHARACTERISTICS OF HARDWARE OR SOFTWARE WHICH ARE MADE AFTER THE RELEASE OF THE SOFTWARE; OR (4) DAMAGES ARISING FROM THE USE OF THE SOFTWARE WITH OTHER SOFTWARE. LICENSEE SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS LICENSOR IN RESPECT OF ALL CLAIMS OR DAMAGES EXCLUDED HEREUNDER.
11.4. LICENSEE AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS LICENSOR FROM AND AGAINST ANY AND ALL LOSSES, COSTS, EXPENSES, CLAIMS, OR DAMAGES ARISING OUT OF ANY CLAIM, SUIT, ACTION, OR JUDGMENT BROUGHT AGAINST LICENSOR BY A THIRD PARTY AS A RESULT OF THE USE BY LICENSEE OF THE SOFTWARE, THE PERFORMANCE, NON-PERFORMANCE, OR IMPROPER PERFORMANCE OF THE SOFTWARE.
12.1. The article headings in this Agreement are inserted for convenience of reference only and shall not be considered in the interpretation of this Agreement.
13.1. The Preamble forms an integral part of this Agreement.
14. GOVERNING LAW
14.1. This Agreement shall be governed by and construed in accordance with the laws in force in the Province of Ontario, Canada, and any dispute stemming from this Agreement shall be submitted to the jurisdiction of the courts of the Province of Ontario, Canada. The Parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
15.1. The parties hereto have required that this License and all documents relating hereto be drawn-up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.
16. FORCE MAJEURE
16.1. Licensor shall not be liable to the Licensee for non-performance or delay in performance caused by anything beyond its reasonable control, including without limitation, acts of God, acts or omissions of Licensee, acts of government, war, strikes, lockouts, embargoes, failure of communications networks, or denial of service/access attacks.
17.1. Any provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective only to the extent of such invalidity or unenforceability and shall be severed from the balance of this Agreement without invalidating or affecting the remaining provisions of this Agreement in that or any other jurisdiction, which remaining provisions shall continue in full force and effect.
18. ENTIRE AGREEMENT
18.1. This Agreement constitutes the entire agreement and understanding between the parties with respect to the matters dealt with herein. All previous agreements, understandings, and representations, whether written or oral, between the parties have been superseded by this Agreement.
19.1. All notices to Licensor under this Agreement are to be provided at the following address:
159 Wellington Street East
Sault Ste. Marie, Ontario