END USER LICENCE AGREEMENT (EULA)
IMPORTANT READ CAREFULLY: BITCAP INC. (THE “CORPORATION”), BEING THE OWNER, AUTHOR, PROVIDER, OPERATOR, DEVELOPER, PUBLISHER, PROPRIETER, AND LICENSOR OF THE PATHFINDER GEOSTEERING SOFTWARE, HEREBY LICENSES THE ENCLOSED SOFTWARE (THE “SOFTWARE”) TO YOU ONLY IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS END USER LICENCE AGREEMENT (THE “AGREEMENT”). THIS AGREEMENT GOVERNS YOUR INSTALLATION AND USE OF THE SOFTWARE.
BY INSTALLING AND/OR BY USING THE SOFTWARE, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT, WHICH CONTAINS THE TERMS OF A LEGAL AGREEMENT BETWEEN YOU AND THE CORPORATION. IF YOU ARE ACCPETING THIS AGREEMENT ON BEHALF OF A CORPORATION, MUNICIPALITY OR LEGAL ENTITY, INCLUDING ANY LEVEL OF GOVERNMENT, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT INSTALL OR USE THE SOFTWARE.
THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY BE DIFFERENT FROM THE AGREEMENT(S) THAT ACCOMPANIED EARLIER RELEASES OR VERSIONS OF THE SOFTWARE. THE CORPORATION RESERVES THE RIGHT TO UPDATE, AMEND, AND/OR MODIFY THIS AGREEMENT FROM TIME TO TIME, AND MAY INCLUDE SUCH UPDATED AGREEMENT WITH OR EMBEDDED IN FUTURE VERSIONS OF THE SOFTWARE. PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE PROCEEDING, AS IT MAY CONTAIN ADDITIONAL RESTRICTIONS ON YOUR USE OF THE SOFTWARE AND WILL BE LEGALLY BINDING ON YOU. PLEASE DIRECT ANY QUESTIONS RESPECTING THIS AGREEMENT TO THE CORPORATION AT: INFO@BITCAP.IO.
AGREEING WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT DOES NOT CONSTITUTE A SALES TRANSACTION. THE SALE OF A LICENCE TO SOFTWARE PRODUCTS TAKES PLACE UNDER PRODUCT ORDERS WHICH (UNLESS OTHERWISE STATED IN THE PRODUCT ORDER) INCORPORATES THE TERMS OF THIS AGREEMENT.
1 DEFINITIONS.
1.1 “ANNUAL MAINTENANCE AND SUPPORT AGREEMENT” MEANS AN AGREEMENT BETWEEN LICENSEE AND LICENSOR TO PROVIDE MAINTENANCE AND SUPPORT SERVICES FOR ALL SOFTWARE LICENSED TO LICENSEE, REGARDLESS OF THE LICENSE OPTION.
1.2 “AUDITOR” MEANS AN INDEPENDENT AUDITOR DESIGNED BY THE CORPORATION TO VERIFY THE LICENSEE’S COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1.3 “BUSINESS DAYS” MEANS A DAY OTHER THAN SATURDAY, SUNDAY OR A STATUTORY HOLIDAY IN THE PROVINCE OF ALBERTA, CANADA.
1.4 “BUSINESS OF THE CORPORATION” MEANS, AS CARRIED ON BY THE CORPORATION, THE ACQUISITION, ADMINISTRATION, LICENSING, SALE, AUGMENTATION, PRODUCTION AND DEVELOPMENT AND PRODUCTION OF HYDROCARBONS AND, IN PARTICULAR, BUT NOT SO AS TO RESTRICT THE GENERALITY OF THE FOREGOING, PROVIDING COMPUTER SOFTWARE AND DATA TO OIL AND GAS COMPANIES IN RESPECT OF PRODUCTION. DRILLING, PRESSURE, RESERVES, GEOLOGICAL AND DESCRIPTIVE WILL INFORMATION, GEOSTEERING DATA, WELL DATA, GRIDS, CROSS-SECTIONS, CORRELATIONS, SAMPLES AND STRIPLOGS, OIL AND GAS LEASE AND LICENSE INFORMATION, AND DIRECTIONAL SURVEY INFORMATION FOR DEVIATED AND HORIZONTAL WELLS.
1.5 “CONFIDENTIAL INFORMATION” MEANS ANY AND ALL INFORMATION OF THE CORPORATION (WHETHER WRITTEN, ORAL, IN ELECTRONIC OR COMPUTER READABLE FORMAT OR IN ANY OTHER FORM) WHICH:
(i) IS, OR MAY BE, USED IN THE BUSINESS OF THE CORPORATION, AS THE CASE MAY BE;
(ii) IS NOT GENERALLY KNOWN IN THE INDUSTRY IN WHICH THE BUSINESS OF THE CORPORATION IS CONDUCTED AND IS THE SUBJECT OF EFFORTS OF THE CORPORATION TO MAINTAIN ITS SECRECY OR TO OTHERWISE RESTRICT OR LIMIT ITS PUBLIC DISSEMINATION; AND
(iii) BECOMES KNOWN TO OR IS DISCLOSED TO THE LICENSEE DURING THE INITIAL TERM OR THE TERM OF THIS AGREEMENT;
AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INCLUDES ANY SUCH INFORMATION CONTAINED OR EMBODIED IN, OR RELATED TO, THE PRODUCTS OF THE CORPORATION, THE BUSINESS OF THE CORPORATION, THE SOFTWARE, PROCESSES, METHODS, KNOW-HOW, DESIGNS, FORMULAE, COMPUTER PROGRAMS, INNOVATIONS, TECHNIQUES AND TRADE SECRETS (INCLUDING MANUFACTURING AND DEVELOPMENT CAPACITIES, BUSINESS OR MARKETING PLANS OR STRATEGIES, FINANCIAL INFORMATION, PRICING SYSTEMS OR PLANS OR STRATEGIES OR LISTS, DATA, CUSTOMERS OR CLIENTS OR CONTRACTS WITH CUSTOMERS OR CLIENTS, SALARIES OF PERSONNEL, SUPPORT SERVICES OR PRACTICES) OF, OR USED IN, THE BUSINESS OF THE CORPORATION, AS THE CASE MAY BE, AND ALSO INCLUDES ANY LISTS OR NAMES OF CLIENTS OR CUSTOMERS OR BUSINESS OR TRADE CONNECTIONS OF THE CORPORATION, AS THE CASE MAY BE, BUT EXCLUDES INFORMATION WHICH IS:
(i) INFORMATION WHICH IS IN THE PUBLIC DOMAIN AT THE DATE ON WHICH IT BECOMES KNOWN TO OR IS DISCLOSED TO THE LICENSEE OR WHICH THEREAFTER ENTERES THE PUBLIC DOMAIN THROUGH NO ACT OR OMISSION OF THE LICENSEE;
(ii) INFORMATION RECEIVED IN GOOD FAITH BY THE LICENSEE FROM A THIRD PARTY, WHO WAS LAWFULLY IN POSSESSION OF, AND HAD THE RIGHT TO DISCLOSE THE SAME;
(iii) INFORMATION THAT THE PARTIES AGREE IN WRITING TO RELEASE FROM THE TERMS OF THIS AGREEMENT;
(iv) INFORMATION THAT THE LICENSEE IS REQUIRED TO DISCLOSE PURSUANT TO APPLICABLE LAW, BUT ONLY TO THE EXTENT NECESSARY TO COMPLY THEREWITH; AND
(v) PROVIDED THAT ANY COMBINATION OF THE INFORMATION WHICH COMPRISES PART OF THE CONFIDENTIAL INFORMATION SHALL NOT BE DEEMED TO BE EXCLUDED FROM THE SCOPE OF THIS DEFINITION UNLESS THE LICENSEE CAN PROVE THAT THE COMBINATION ITSELF FALLS WITHIN ONE OF THE EXCLUSIONS SET OUT ABOVE.
1.6 “DOCUMENTATION” MEANS THE USER DOCUMENTATION THAT THE CORPORATION MAKES AVAILABLE FOR THE SOFTWARE IN ELECTRONIC OR PAPER FORM, INCLUDING BUT NOT LIMITED TO, MANUALS AND OTHER DOCUMENTS RELATING TO THE INSTALLATION AND USE OF THE SOFTWARE IN ASSOCIATION WITH AUTHORIZED COPIES OF THE SOFTWARE.
1.7 “EVALUATION LICENSE” HAS THE DEFINITION AFFORDED TO IT IN SUBSECTION 2.6 OF THIS AGREEMENT.
1.8 “EVALUATION TERM” HAS THE DEFINITION AFFORDED TO IT IN SUBSECTION 2.6 OF THIS AGREEMENT.
1.9 “FEEDBACK” HAS THE DEFINITION AFFORDED TO IT IN SECTION 17 OF THIS AGREEMENT.
1.10 “INITIAL TERM” HAS THE DEFINITION AFFORDED TO IT IN SUBSECTION 4.1 OF THIS AGREEMENT.
1.11 “INTELLECTUAL PROPERTY” MEANS ALL INTELLECTUAL PROPERTY RELATED TO THE BUSINESS OF THE CORPORATION THE PRODUCTS OF THE CORPORATION, WHETHER OR NOT REDUCED TO PRACTICE INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, KNOWLEDGE, KNOW-HOW, TECHNIQUES, PROCESSES AND PROCEDURES, AND TECHNOLOGY, SOFTWARE, DOCUMENTATION, PRODUCTS, DESIGNS, INNOVATIONS, RESULTS, DATA, SOURCE CODE, FORMULAE, AND ALGORITHMS, AND DISCOVERIES, DEVELOPMENTS, FEEDBACK, INVENTIONS, AND IMPROVEMENTS, AND ALL PATENT APPLICATIONS, PATENTS, REGISTERED TRADEMARKS, UNREGISTERED TRADEMARKS, TRADE NAMES, LOGOS, WEBSITES, SLOGANS, TRADE SECRETS, TRADE DRESS, COPYRIGHTS, INDUSTRIAL DESIGNS, AND ALL RIGHT, TITLE AND INTEREST THERETO.
1.12 “LICENSEE” MEANS THE LEGAL ENTITY OR INDIVIDUAL THAT IS IDENTIFIED IN THE APPLICABLE PRODUCT ORDER WHO HAS RIGHTFULLY RECEIVED A LICENSE TO THE LICENSED PRODUCT.
1.13 “LICENSE OPTION” OR “LICENSE OPTIONS” MEANS THE TYPE OF LICENSE AVAILABLE FOR A GIVEN SOFTWARE PRODUCT (SUCH AS A NAMED USER LICENSE, CONCURRENT USER LICENSE, ENTITY OR ORGANIZATION LICENSE, OR SERVER LICENSE). A LICENSE OPTION MAY BE SET FORTH IN A PRODUCT ORDER OR AN AGREEMENT EXECUTED IN WRITING BY LICENSEE AND LICENSOR.
1.14 “LICENSED PRODUCT” OR “LICENSED PRODUCTS” MEANS THE SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION.
1.15 “LICENSOR” MEANS THE CORPORATION.
1.16 “MAINTENANCE AND SUPPORT SERVICES” MEANS ANY UPDATES OF THE LICENSED PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY NEW VERSION, BUG FIXES AND PATCHES OF THE LICENSED PRODUCTS PROVIDED BY LICENSOR. THE MAINTENANCE AND SUPPORT SERVICES ARE SUBJECT TO THE TERMS AND CONDITIONS OF SUCH APPLICABLE ANNUAL PRODUCT MAINTENANCE AND SUPPORT AGREEMENT.
1.17 “NON-COMPLIANCE” HAS THE DEFINITION AFFORDED TO IT IN PARAGRAPH 14.1.4 OF THIS AGREEMENT.
1.18 “PARTY” OR “PARTIES” MEANS LICENSOR AND LICENSEE.
1.19 “PERSONAL INFORMATION” HAS THE DEFINITION AFFORDED TO IT IN PARAGRAPH 16.1.1 OF THIS AGREEMENT.
1.20 “PRODUCT ORDER” MEANS AN AGREEMENT BETWEEN LICENSOR AND LICENSEE THAT CONSISTS OF A DOCUMENT THAT HAS BEEN: (I) SUBMITTED BY LICENSEE DESCRIBING THE LICENSE OPTIONS FOR THE SOFTWARE; AND (II) ACCEPTED BY LICENSOR (A) IN WRITING, OR (B) BY DELIVERING THE SOFTWARE TO LICENSEE, WHICHEVER OCCURS FIRST. A PRODUCT ORDER MAY ALSO CONSIST OF A WRITTEN QUOTE, OR OTHER WRITTEN DOCUMENT ISSUED BY LICENSOR (THE “QUOTE”) DESCRIBING THE LICENSE OPTIONS FOR THE SOFTWARE. TO ACCEPT THE QUOTE BEFORE IT EXPIRES, LICENSEE MUST: (A) RETURN THE QUOTE SIGNED BY AN AUTHORIZED REPRESENTATIVE OF LICENSEE, (B) ISSUE A PURCHASE ORDER THAT REFERENCES THE QUOTE (IF THE QUOTE EXPRESSLY ALLOWS ACCEPTANCE IN THIS MANNER), OR (C) PAY LICENSOR THE FEES LISTED IN THE QUOTE. UNLESS OTHERWISE EXPRESSLY SET FORTH IN THE RELEVANT PRODUCT ORDER, EACH PRODUCT ORDER INCORPORATES THE TERMS AND CONDITIONS OF THIS AGREEMENT. ANY CONFLICTING OR ADDITIONAL TERMS IN A PRODUCT ORDER ACCEPTED BY AN AUTHORIZED THIRD-PARTY DISTRIBUTOR OR RESELLER OF THE CORPORATION SHALL HAVE NO EFFECT UNLESS SUCH TERMS HAVE BEEN AGREED TO BY THE CORPORATION IN WRITING.
1.21 “PRODUCTS OF THE CORPORATION” MEANS COMPUTER SOFTWARE, INCLUDING THE SOFTWARE, DATA AND OTHER INSTRUCTIONAL AND PROMOTIONAL MATERIALS ACQUIRED, ACCUMULATED, PRODUCED, ADMINISTERED, DEVELOPED, RIGHTS LICENSED IN, AND LEASE INFORMATION SOLD OR LEASED BY THE CORPORATION IN RESPECT OF THE SEARCH, DRILLING FOR, AND DEVELOPMENT OF HYDROCARBONS.
1.22 “SOFTWARE” MEANS THE EXECUTABLE VERSION OF THE CORPORATION’S SOFTWARE PRODUCTS, INCLUDING BUT NOT LIMITED TO THE PRODUCTS OF THE CORPORATION, LISTED IN THE PRODUCT ORDER OR OTHERWISE LICENSED TO OR RIGHTFULLY ACQUIRED BY LICENSEE. FOR THE SAKE OF CLARITY, THIS AGREEMENT SHALL GOVERN THE USE OF ANY UPDATE OR NEW VERSION OF THE SOFTWARE THAT LICENSEE RECEIVES PURSUANT TO A SEPARATE MAINTENANCE AND SUPPORT AGREEMENT, UNLESS SUCH UPDATE CONTAINS, COMES WITH, OR IS OTHERWISE SPECIFICALLY GOVERNED BY AN UPDATED VERSION OF THIS AGREEMENT.
1.23 “TERM” HAS THE DEFINITION AFFORDED TO IT IN SUBSECTION 4.1 OF THIS AGREEMENT.
1.24 “THIRD PARTY COMPONENT” MEANS ANY RUNTIME SYSTEM OR OTHER ELEMENTS OWNED OR LICENSED TO THE CORPORATION BY A THIRD PARTY (OTHER THAN OPEN-SOURCE CODE OR ELEMENTS) WHICH MAY BE EMBEDDED IN THE SOFTWARE.
1.25 “THIRD PARTY SOFTWARE” MEANS ADDITIONAL OR ACCOMPANYING SOFTWARE OWNED OR LICENSED BY A THIRD PARTY (SUCH AS ADOBE ACROBAT OR MICROSOFT INTERNET EXPLORER, BUT NOT ANY OPEN-SOURCE CODE OR ELEMENTS) THAT MAY BE SPECIFIED IN THE DOCUMENTATION OR IN A FILE ACCOMPANYING SUCH SOFTWARE.
1.26 “WARRANTY PERIOD” MEANS THE THIRTY (30) CALENDAR DAY TIMEFRAME BEGINNING ON DATE OF DELIVERY OF THE SOFTWARE TO LICENSEE (SOFTWARE DELIVERY IS DEEMED TO OCCUR WHEN THE SOFTWARE IS PHYSICALLY DELIVERED TO LICENSEE OR MADE AVAILABLE FOR DOWNLOAD TO LICENSEE, WHICHEVER IS SOONER).
1.27 “YOU” OR “YOUR” MEANS THE END USER. IN THE CASE WHERE THE END USER IS ACCEPTING ON BEHALF OF THE LICENSEE, THE TERMS “YOU” OR “YOUR” WILL REFER TO SUCH LICENSEE.
2 GRANT OF LICENCE; LICENCE CONDITIONS.
2.1 SUBJECT TO LICENSEE’S COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE CORPORATION HEREBY GRANTS TO LICENSEE A NON-TRANSFERABLE, NON-SUBLICENSABLE AND NON-EXCLUSIVE LICENSE TO USE THE LICENSED PRODUCTS AS AUTHORIZED BY THE LICENSE OPTION AND AS SPECIFIED IN THIS AGREEMENT OR RELATED PRODUCT ORDER, SOLELY FOR LICENSEE’S INTERNAL BUSINESS OPERATIONS, FUNCTIONS AND BENEFIT, AND NOT FOR COMMERCIALIZATION OF THE LICENSED PRODUCT OR TO PROVIDE SERVICES OR BENEFIT TO ANY AFFILIATES OR SUBSIDIARIES OF LICENSEE OR ANY OTHER THIRD PARTY, EXCEPT AS OTHERWISE ALLOWED BY THE CORPORATION.
2.2 THE CORPORATION ALSO GRANTS THE LICENSEE THE RIGHT TO REPRODUCE THE DOCUMENTATION IN ASSOCIATION WITH COPIES OF THE SOFTWARE.
2.3 LICENSEE ACKNOWLEDGES THAT THE SOFTWARE AND DOCUMENTATION ARE LICENSED, NOT SOLD. EVEN THOUGH COPIES OF THE SOFTWARE MAY BE PROVIDED ON MEDIA OF DIFFERENT FORMATS, THIS DOES NOT CONSTITUTE MULTIPLE LICENSES TO THE SOFTWARE.
2.4 DURING THE TERM OF THIS AGREEMENT, LICENSEE AGREES TO: (I) IMPLEMENT INTERNAL SAFEGUARDS TO PREVENT ANY UNAUTHORIZED COPYING, DISTRIBUTION, INSTALLATION, USE OF, OR ACCESS TO, THE LICENSED PRODUCTS OR THE PRODUCTS OF THE CORPORATION, AND ANY ASSOCIATED MAINTENANCE AND SUPPORT SERVICES, OR ANY OTHER BREACH OF THIS AGREEMENT, AND (II) TAKE ANY AND ALL COMMERCIALLY REASONABLE STEPS TO DESTROY OR ERASE ALL SOFTWARE CODES, PROGRAMS, DOCUMENTATION, AND OTHER PROPRIETARY INFORMATION OF THE CORPORATION BEFORE DISPOSING OF ANY MEDIA OR HARDWARE CONTAINING COPIES OF THE LICENSED PRODUCTS. THE CORPORATION WILL PROVIDE ANY LICENSE KEY NECESSARY FOR ACTIVATION AND USE OF THE SOFTWARE. THE CORPORATION IS NOT LIABLE OR RESPONSIBLE FOR LOST OR BROKEN LICENSE KEYS AND IS NOT OBLIGATED TO REPLACE LICENSE KEYS OR ISSUE NEW LICENSE KEYS UNLESS:
2.4.1 THE LICENSEE HAS ENTERED INTO A SEPARATE ANNUAL MAINTENANCE AND SUPPORT AGREEMENT FOR THE APPLICABLE SOFTWARE THAT SPECIFICALLY COVERS THE ISSUANCE OF NEW OR REPLACEMENT KEYS; AND
2.4.2 THE APPLICABLE VERSION OF THE SOFTWARE IS THEN GENERALLY AVAILABLE FOR DISTRIBUTION BY THE CORPORATION. IF LICENSEE HAS NOT ENTERED INTO A SEPARATE ANNUAL MAINTENANCE AND SUPPORT AGREEMENT THAT SPECIFICALLY COVERS THE ISSUANCE OF NEW OR REPLACEMENT KEYS, THEN SUCH NEW OR REPLACEMENT LICENSE KEYS MAY BE AVAILABLE FOR PURCHASE AT THE CORPORATION’S THEN-CURRENT LIST PRICE FOR APPLICABLE NEW LICENSES.
2.5 THE CORPORATION MAY, IN THEIR SOLE DISCRETION, PROVIDE THE LICENSEE WITH THE LICENSED PRODUCTS SOLELY FOR EVALUATION PURPOSES (“EVALUATION LICENSE”). IN THE EVENT OF CONFLICT, THIS SECTION 2.6 AND 2.7 SHALL PREVAIL OVER ANY OTHER PROVISIONS SET FORTH IN THIS AGREEMENT. AN EVALUATION LICENSE MAY BE USED FOR A PERIOD OF NO MORE THAN THIRTY (30) CALENDAR DAYS FROM THE DATE THE LICENSED PRODUCTS WERE PROVIDED TO LICENSEE, UNLESS OTHERWISE AGREED TO BY THE PARTIES (“EVALUATION TERM”). AN EVALUATION LICENSE IS TO BE USED SOLELY FOR LICENSEE’S INTERNAL EVALUATION AND TESTING PURPOSES ON THE LICENSEE’S NETWORK OR LICENSEE ORGANIZATION OWNED DEVICES AND NOT FOR DEVELOPMENT, COMMERCIAL, OR PRODUCTION PURPOSES. FOR SOFTWARE SUBJECT TO AN EVALUATION LICENSE, (I) LICENSEE MAY NOT REPRODUCE OR DISTRIBUTE THE LICENSED PRODUCTS; AND (II) LICENSEE’S RESULTS OF BENCHMARK OR OTHER PERFORMANCE TESTS RUN ON OR USING THE LICENSED PRODUCTS MAY NOT BE DISCLOSED TO ANY THIRD PARTY WITHOUT THE CORPORATION’S PRIOR WRITTEN CONSENT.
2.6 AT ANY TIME DURING THE EVALUATION TERM OR UPON COMPLETION THEREOF, LICENSEE MAY, UPON WRITTEN NOTIFICATION TO LICENSOR AND PAYMENT OF THE APPLICABLE LICENSE FEE, REPLACE THE EVALUATION LICENSE WITH A LICENSE TO USE THE LICENSED PRODUCTS THAT IS SUBJECT TO SECTION 2 OF THIS AGREEMENT. IN THE ABSENCE OF SUCH NOTIFICATION BY LICENSEE, THE EVALUATION LICENSE SHALL AUTOMATICALLY TERMINATE AT THE END OF THE EVALUATION TERM AND MAY CEASE TO FUNCTION, AND LICENSEE SHALL RETURN, OR, IF LICENSOR SO DIRECTS, DELETE, AND DESTROY ALL SUCH LICENSED PRODUCTS AND PROVIDE LICENSOR WITH WRITTEN CONFIRMATION OF ITS COMPLIANCE WITH THIS PROVISION. UPON WRITTEN REQUEST FROM LICENSEE, LICENSOR MAY, IN ITS SOLE DISCRETION, GRANT LICENSEE AN EXTENSION IN WRITING PRIOR TO THE EXPIRATION OF THE EVALUATION TERM. LICENSED PRODUCTS PROVIDED UNDER AN EVALUATION LICENSE IS PROVIDED WITHOUT ANY CONTRACTUAL OBLIGATION OF MAINTENANCE AND SUPPORT BY LICENSOR AND IS PROVIDED “AS IS” WITHOUT WARRANTIES, IMPLIED OR EXPRESS, OF ANY KIND.
2.7 IF THE SOFTWARE IS LICENSED AS A BUNDLE OR SUITE OF MULTIPLE PRODUCTS, WITH MORE THAN ONE SPECIFIED PRODUCT, AND THE APPLICABLE PRODUCT ORDER SPECIFIES THE LICENSE OPTION FOR THE BUNDLE OR SUITE (BUT NOT THE INDIVIDUAL PRODUCT COMPONENTS OF THE BUNDLE OR SUITE), THEN THIS AGREEMENT APPLIES TO ALL SUCH SPECIFIED PRODUCTS, SUBJECT TO ANY RESTRICTIONS OR USAGE TERMS SPECIFIED ON THE IN THE APPLICABLE PURCHASE ORDER THAT MAY APPLY TO ANY SUCH PRODUCTS INDIVIDUALLY.
2.8 LICENSEE AGREES TO MAKE ALL REASONABLE EFFORTS TO ENSURE THAT ALL AUTHORIZED USERS OF THE SOFTWARE COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT AND LICENSEE IS LIABLE FOR ANY BREACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT BY THEIR AUTHORIZED USERS.
3 USE RESTRICTIONS.
3.1 LICENSEE AGREES NOT TO, DIRECTLY OR INDIRECTLY:
3.1.1 COPY, DISTRIBUTE OR USE THE LICENSED PRODUCT, IN WHOLE OR IN PART (SUCH AS ANY PORTION, FEATURE, FUNCTION, OR USER INTERFACE) WITHOUT FIRST PAYING LICENSOR THE APPLICABLE LICENSE FEES;
3.1.2 USE THE SOFTWARE OR ANY PORTION THEREOF AS A SERVICE, OR FOR TIMESHARING, FACILITIES MANAGEMENT, OUTSOURCING, HOSTING, SERVICE BUREAU USE, OR FOR PROVIDING OTHER APPLICATION SERVICE (ASP) OR DATA PROCESSING SERVICES TO THIRD PARTIES OR FOR LIKE PURPOSES, OR PERMIT THE USE OF THE SOFTWARE BY A THIRD PARTY OR PERMIT ACCESS BY OR USE FOR THE BENEFIT OF ANY THIRD PARTY WITHOUT EXECUTING A SEPARATE DISTRIBUTION AGREEMENT FOR THE SOFTWARE AND PAYING LICENSOR ANY AND ALL REQUIRED ADDITIONAL FEES;
3.1.3 IN ANY MANNER VIOLATE ANY APPLICABLE FEDERAL, PROVINCIAL, LOCAL, OR INTERNATIONAL LAW OR REGULATION INCLUDING, WITHOUT LIMITATION, ANY LAWS REGARDING THE EXPORT OF DATA OR SOFTWARE, PATENT, TRADEMARK, TRADE SECRET, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY, LEGAL RIGHTS (INCLUDING THE RIGHTS OF PUBLICITY AND PRIVACY OF OTHERS) OR CONTAIN ANY MATERIAL THAT COULD GIVE RISE TO ANY CIVIL OR CRIMINAL LIABILITY UNDER APPLICABLE LAWS OR REGULATIONS OR THAT OTHERWISE MAY BE IN CONFLICT WITH THIS AGREEMENT;
3.1.4 MODIFY OR ALTER IN ANY MANNER THE LICENSED PRODUCTS, OR DECRYPT, TRANSLATE, DISASSEMBLE, RECOMPILE, DECOMPILE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER THE SOURCE CODE OR STRUCTURE, SEQUENCE OR ORGANIZATION OF THE SOFTWARE OR ANY PORTION THEREOF, OR PROVIDE ASSISTANCE TO ANY EFFORT OF A THIRD PARTY TO DO SO (EXCEPT TO THE EXTENT APPLICABLE BY LAW SPECIFICALLY PERMITTING SUCH ACTIVITY, IN WHICH CASE LICENSEE MUST PROVIDE THE CORPORATION WITH DETAILED INFORMATION REGARDING SUCH ACTIVITIES);
3.1.5 ALTER, DESTROY, OR OTHERWISE REMOVE ANY PROPRIETARY NOTICES OR LABELS, INCLUDING BUT NOT LIMITED TO TRADEMARK AND COPYRIGHT NOTICES, ON OR EMBEDDED WITHIN THE SOFTWARE;
3.1.6 USE THE SOFTWARE IN A MANNER OTHER THAN AS SPECIFICALLY PERMITTED IN THIS AGREEMENT;
3.1.7 ASSIGN, SELL, SUBLICENSE, RENT, LEASE, LEND, OUTSOURCE OR OTHERWISE TRANSFER THE SOFTWARE TO ANY THIRD PARTY, WITHOUT FIRST PAYING THE CORPORATION THE APPLICABLE REQUIRED LICENSE FEES AND OBTAINING THE CORPORATION’S PRIOR WRITTEN CONSENT;
3.1.8 ATTEMPT TO CIRCUMVENT THE SECURITY OF THE SOFTWARE OR THE PRODUCTS OF THE CORPORATION, INCLUDING WITHOUT LIMITATION BY: (A) ACCESSING CONTENT AND DATA THAT IS NOT INTENDED FOR THE LICENSEE; (B) ATTEMPTING TO BREACH OR BREACHING THE SECURITY AND/OR AUTHENTICATION MEASURES WHICH ARE NOT AUTHORIZED; (C) RESTRICTING, DISRUPTING OR DISABLING SERVICE TO USERS, HOSTS, SERVERS OR NETWORKS; (D) ILLICITLY REPRODUCING TCP/IP PACKET HEADER; (E) DISRUPTING NETWORK SERVICES AND OTHERWISE DISRUPTING THE LICENSOR’S ABILITY TO MONITOR THE SOFTWARE OR THE PRODUCTS OF THE CORPORATION; (F) USING ANY ROBOT, SPIDER, OR OTHER AUTOMATIC DEVICES, PROCESS, OR MEANS TO ACCESS THE SOFTWARE OR PRODUCTS OF THE CORPORATION FOR ANY PURPOSE, INCLUDING MONITORING OR COPYING ANY OF THE MATERIAL CONTAINED IN THE SOFTWARE OR THE PRODUCTS OF THE CORPORATION; (G) INTRODUCING ANY VIRUSES, TROJAN HORSES, WORMS, LOGIC BOMBS, OR OTHER MATERIAL THAT IS MALICIOUS OR TECHNOLOGICALLY HARMFUL; (H) ATTACKING THE SOFTWARE OR THE PRODUCTS OF THE CORPORATION VIA A DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, FLOODING, MAILBOMBING, OR CRASHING; AND (I) OTHERWISE ATTEMPTING TO INTERFERE WITH THE PROPER WORKING OF THE SOFTWARE OR THE PRODUCTS OF THE CORPORATION;
3.1.9 EXCEPT AS OTHERWISE ALLOWED BY THE CORPORATION, AUTHORIZE, ALLOW OR APPOINT ANY THIRD PARTY TO DO ANY OF THE FOREGOING SOFTWARE USE RESTRICTIONS UNDER SECTION 3.1 OF THIS AGREEMENT. FOR THE SAKE OF CLARITY, THIRD PARTIES INCLUDE, WITHOUT LIMITATION, CONTRACTORS AND CONSULTANTS (INCLUDING CONTRACTORS AND CONSULTANTS RETAINED TO PROVIDE SERVICES SOLELY FOR THE BENEFIT OF LICENSEE), OUTSOURCERS, LICENSEE’S AFFILIATES AND SUBSIDIARIES, PARENT COMPANIES, CUSTOMERS, AND THE PUBLIC;
3.1.10 PUBLISH OR DISCLOSE TO THIRD PARTIES ANY EVALUATION OR BENCHMARKING OF THE SOFTWARE WITHOUT LICENSOR’S PRIOR WRITTEN CONSENT;
3.1.11 POST OR OTHERWISE MAKE AVAILABLE THE SOFTWARE OR DOCUMENTATION, OR ANY PORTION THEREOF, IN ANY FORM, ON THE INTERNET OR THE WORLD WIDE WEB; OR
3.1.12 USE A PREVIOUS VERSION OF THE SOFTWARE AFTER LICENSEE RECEIVES A NEW VERSION AND ARE ASKED TO DISCONTINUE USING THE PREVIOUS VERSION.
3.2 NOTWITHSTANDING THE FOREGOING, LICENSEE MAY: (I) MAKE A REASONABLE NUMBER OF ARCHIVAL BACK-UP COPIES OF THE SOFTWARE, AND (II) MAKE A REASONABLE NUMBER OF COPIES OF THE DOCUMENTATION. LICENSEE SHALL REPRODUCE ALL COPYRIGHT AND OTHER PROPRIETARY RIGHTS NOTICES APPEARING IN OR ON THE LICENSED PRODUCTS, INCLUDING NOTICES OF ALL THIRD-PARTY SUPPLIERS.
4 TERM AND TERMINATION.
4.1 UNLESS TERMINATED EARLIER IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET OUT HEREIN, THE TERM OF THIS AGREEMENT AND ANY LICENSES GRANTED HEREIN SHALL COMMENCE ON THE DATE THE LICENSED PRODUCTS ARE PHYSICALLY DELIVERED TO LICENSEE OR MADE AVAILABLE FOR DOWNLOAD FOR LICENSEE, WHICHEVER IS SOONER, AND SHALL CONTINUE FOR A PERIOD OF ONE (1) YEAR (THE “INITIAL TERM”). UPON EXPIRATION OF THE INITIAL TERM, THIS AGREEMENT SHALL AUTOMATICALLY RENEW FOR SUBSEQUENT PERIODS OF ONE (1) YEAR EACH AT THE END OF THE INITIAL TERM OR ANY RENEWAL TERM (THE “TERM”) PROVIDED THAT THE LICENSEE ENTERS INTO A SEPARATE ANNUAL MAINTENANCE AND SUPPORT AGREEMENT, AND PAYS ALL APPLICABLE ANNUAL FEES, FOR THE PROVISION OF MAINTENANCE AND SUPPORT SERVICES. IF LICENSEE HAS ENTERED INTO A SEPARATE ANNUAL MAINTENANCE AND SUPPORT AGREEMENT, THIS AGREEMENT AND ANY LICENSES GRANTED HEREIN SHALL AUTOMATICALLY TERMINATE UPON THE EXPIRATION OR TERMINATION OF SUCH ANNUAL MAINTENANCE AND SUPPORT AGREEMENT. IF LICENSEE HAS NOT ENTERED INTO A SEPARATE ANNUAL MAINTENANCE AND SUPPORT AGREEMENT, THIS AGREEMENT AND ANY LICENSES GRANTED HEREIN SHALL AUTOMATICALLY TERMINATE AT THE END OF THE INITIAL TERM.
4.2 LICENSOR MAY TERMINATE THIS AGREEMENT, ALONG WITH ALL LICENSES THEN IN EFFECT WITH LICENSEE, IMMEDIATELY BY GIVING LICENSEE WRITTEN NOTICE OF TERMINATION IN THE EVENT THAT:
4.2.1 LICENSEE BREACHES ANY TERM OR CONDITION OF THIS AGREEMENT AND FAILS TO REMEDY SUCH BREACH WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF LICENSOR’S NOTICE DETAILING SUCH BREACH;
4.2.2 LICENSEE BECOMES INSOLVENT, HAS A RECEIVER APPOINTED, OR FILES FOR OR HAS FILED AGAINST IT, LIQUIDATION, BANKRUPTCY OR ANALOGOUS PROCEEDINGS; OR
4.2.3 LICENSEE INFRINGES OR MISAPPROPRIATES THE INTELLECTUAL PROPERTY RIGHTS OF THE LICENSOR.
4.3 TERMINATION OF THIS AGREEMENT SHALL BE WITHOUT PREJUDICE TO ANY OTHER RIGHTS OR REMEDIES LICENSOR MAY HAVE TO THE EXTENT PERMITTED BY LAW. IN THE EVENT OF TERMINATION, THE LICENSE GRANTED UNDER SECTION 2 OF THIS AGREEMENT WILL IMMEDIATELY TERMINATE, AND LICENSEE SHALL DESTROY AND ERASE ALL COPIES OF SUCH LICENSED PRODUCTS IN ITS POSSESSION OR CONTROL AND PROVIDE WRITTEN CERTIFICATION TO LICENSOR THAT IT HAS COMPLIED WITH THIS PROVISION.
4.4 IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY LOSS OR DAMAGES SUFFERED OR INCURRED BY LICENSEE RELATED TO OR ARISING OUT OF SUCH TERMINATION OF THIS AGREEMENT BY LICENSOR INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFIT OR LOSS OF REVENUE INCURRED BY LICENSEE.
4.5 EARLY TERMINATION OF THIS AGREEMENT SHALL NOT ENTITLE LICENSEE TO ANY REFUND OR REIMBURSEMENT OF ANY PREVIOUSLY PAID FEES, AND ANY AND ALL FEES OUTSTANDING AT THE DATE OF TERMINATION, INCLUDING LICENSE FEES OR ANNUAL SOFTWARE MAINTENANCE AND SUPPORT FEES, BECOME IMMEDIATELY DUE AND PAYABLE.
5 SUPPORT AND MAINTENANCE.
LICENSEE IS NOT ENTITLED TO ANY UPDATES OR ACCESS TO NEW VERSIONS OF THE SOFTWARE, UNLESS LICENSEE PURCHASES MAINTENANCE AND SUPPORT SERVICES PURSUANT TO LICENSORS THEN-CURRENT APPLICABLE STANDARD ANNUAL PRODUCT MAINTENANCE AND SUPPORT AGREEMENT. WHERE LICENSEE PURCHASES MAINTENANCE AND SUPPORT SERVICES FOR ANY SOFTWARE, LICENSEE HEREBY AGREES TO PURCHASE OR KEEP CURRENT MAINTENANCE AND SUPPORT SERVICES FOR ALL LICENSED SOFTWARE PRODUCTS, REGARDLESS OF LICENSE OPTION.
6 LIMITED WARRANTY.
6.1 THE CORPORATION WARRANTS FOR THE WARRANTY PERIOD THAT: (I) IF THE SOFTWARE IS SUPPLIED VIA MEDIA, THE MEDIA WILL BE FREE FROM DEFECTS IN MATERIALS OR WORKMANSHIP UNDER NORMAL USE, AND (II) THE COPY OF THE SOFTWARE DELIVERED TO LICENSEE SUBSTANTIALLY CONFORMS IN ALL MATERIAL RESPECTS TO THE DOCUMENTATION.
6.2 LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY DEFECTIVE MEDIA SUPPLIED BY THE CORPORATION SHALL BE THE CORPORATION’S REPAIR OR REPLACEMENT OF SUCH DEFECTIVE MEDIA FREE OF CHARGE, PROVIDED THAT THE DEFECTIVE MEDIA IS RETURNED TO THE CORPORATION DURING THE WARRANTY PERIOD. DURING THE WARRANTY PERIOD, LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR NOT MEETING THE WARRANTY REQUIREMENTS OF SUBSECTION 6.1 OF THIS AGREEMENT SHALL BE THE REPAIR OR REPLACEMENT OF THE SOFTWARE BY THE CORPORATION FREE OF CHARGE SO THAT IT SUBSTANTIALLY CONFORMS TO THE DOCUMENTATION OR IF THE CORPORATION, IN ITS SOLE DISCRETION, REASONABLY DETERMINES THAT SUCH REMEDY IS NOT ECONOMICALLY OR TECHNICALLY FEASIBLE, LICENSEE SHALL BE ENTITLED TO A PRO-RATED REFUND OF THE LICENSE FEE AND ANY MAINTENANCE AND SUPPORT SERVICES FEE PAID FOR SUCH SOFTWARE, TO BE DETERMINED AT THE SOLE DISCRETION OF THE CORPORATION. UPON SUCH REFUND, LICENSEE’S LICENSE TO USE SUCH SOFTWARE WILL IMMEDIATELY TERMINATE.
6.3 THE WARRANTIES SET FORTH IN THIS SECTION 6 SHALL NOT APPLY IF THE DEFECTS IN THE SOFTWARE OR MEDIA RESULT FROM:
6.3.1 LICENSEE’S FAILURE TO USE THE SOFTWARE IN ACCORDANCE WITH THE DOCUMENTATION OR THE TERMS AND CONDITIONS OF THIS AGREEMENT;
6.3.2 THE MALFUNCTIONING OF LICENSEE’S EQUIPMENT OR NETWORK;
6.3.3 ACCIDENT, NEGLECT, OR ABUSE BY THE LICENSEE;
6.3.4 SERVICE BY ANY UNAUTHORIZED PERSON;
6.3.5 OTHER SOFTWARE USED BY LICENSEE AND NOT PROVIDED BY THE CORPORATION, OR FOR WHICH THE SOFTWARE IS NOT DESIGNED OR LICENSED FOR SUCH USE;
6.3.6 THIRD PARTY SOFTWARE THAT IS NOT A THIRD-PARTY COMPONENT; AND
6.3.7 ANY OTHER CAUSE OCCURRING AFTER INITIAL DELIVERY OF THE SOFTWARE OR MEDIA TO LICENSEE, UNLESS CAUSED DIRECTLY BY THE CORPORATION.
6.4 THE CORPORATION HAS NO RESPONSIBILITY FOR ANY CLAIMS MADE OUTSIDE OF THE WARRANTY PERIOD. THE FOREGOING WARRANTY SHALL NOT APPLY TO ANY FREE-OF-CHARGE (EVALUATION COPY) SOFTWARE OR UPDATES PROVIDED UNDER MAINTENANCE AND SUPPORT SERVICES. THE WARRANTIES SET FORTH IN THIS SECTION 6 WILL NOT APPLY AND WILL BECOME NULL AND VOID IF LICENSEE MATERIALLY BREACHES ANY PROVISION OF THIS AGREEMENT.
7 DISCLAIMER OF WARRANTY.
SUBJECT TO THE LIMITED WARRANTY SET FORTH IN SECTION 6 OF THIS AGREEMENT, THE LICENSED PRODUCTS ARE PROVIDED TO LICENSEE “AS-IS” WITHOUT WARRANTY OF ANY KIND. THE CORPORATION DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, THAT OPERATION WILL BE UNINTERRUPTED, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE, OR WORK IN COMBINATION WITH ANY OTHER SOFTWARE, APPLICATIONS, OR SYSTEMS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. EXCEPT AS SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES WITH RESPECT TO THE LICENSED PRODUCTS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE ARE EXPRESSLY DISCLAIMED BY THE CORPORATION AND ITS AFFILIATES AND THEIR THIRD-PARTY RESELLERS AND SERVICE PROVIDERS. LICENSEE ACKNOWLEDGES THAT LICENSEE IS RESPONSIBLE FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE LICENSEE’S INTENDED RESULTS AND FOR THE INSTALLATION AND/OR USE OF, AND RESULTS OBTAINED FROM, THE SOFTWARE.
8 LIMITATION OF LIABILITY.
8.1 AGGREGATE CAP. IN NO EVENT SHALL ANY LIABILITY OF THE CORPORATION AND ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE THIRD-PARTY RESELLERS OR SERVICE PROVIDERS UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID BY LICENSEE FOR THE SOFTWARE AND THE INITIAL PERIOD OF MAINTENANCE AND SUPPORT SERVICES GIVING RISE TO THE APPLICABLE CLAIM.
8.2 WAIVER OF LIABILITY. IN NO EVENT SHALL THE CORPORATION AND ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE THIRD PARTY RESELLERS OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SIMILAR DAMAGES, LOSS OF PROFITS, BUSINESS, DATA, OR PROGRAMS (INCLUDING, BUT NOT LIMITED TO, THE COST OF RECOVERING OR REPLACING SUCH DATA OR PROGRAMS), LOSS, DAMAGE OR ANY COSTS DUE TO INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.3 SCOPE. THE LIMITATIONS AND EXCLUSIONS OF THIS SECTION 8 APPLY TO ALL CAUSES OF ACTION, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. THESE LIMITATIONS AND EXCLUSIONS APPLY COLLECTIVELY TO THE CORPORATION, ITS PARENTS, AFFILIATES, AND SUBSIDIARIES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AND THIRD-PARTY RESELLERS AND SERVICE PROVIDERS. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 8 EXCLUDES LIABILITY FOR WILLFUL MISCONDUCT OR FRAUDULENT MISREPRESENTATION.
8.4 EXCLUSIVE REMEDY. LICENSEE’S REMEDIES IN THIS AGREEMENT ARE LICENSEE’S EXCLUSIVE REMEDIES. LICENSEE AGREES THAT, IN ENTERING INTO THIS AGREEMENT, IT DID NOT RELY ON ANY REPRESENTATIONS (WHETHER WRITTEN OR ORAL) OF ANY KIND OTHER THAN THOSE EXPRESSLY SET OUT IN THIS AGREEMENT OR THE APPLICABLE PRODUCT ORDER.
8.5 ESSENTIAL PURPOSE. LICENSEE FURTHER ACKNOWLEDGES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 8 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT, IN THE ABSENCE OF SUCH LIMITATIONS AND EXCLUSIONS, THE PRICING AND OTHER TERMS AND CONDITIONS SET FORTH HEREIN WOULD BE SUBSTANTIALLY DIFFERENT. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 8 SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
8.6 FREE SOFTWARE. IF LICENSOR PROVIDES LICENSEE WITH ANY SOFTWARE FREE-OF-CHARGE OR UNDER AN EVALUATION LICENCE, TO THE EXTENT PERMITTED BY LAW, LICENSOR SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO LICENSEE, ITS CUSTOMERS, OR ANY THIRD PARTIES CAUSED BY THE SOFTWARE THAT IT MAKES AVAILABLE TO LICENSEE.
9 INDEMNITY
LICENSEE AGREES THAT LICENSOR SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY USE LICENSEE MAKES OF THE SOFTWARE. LICENSEE SHALL INDEMNIFY AND HOLD HARMLESS LICENSOR FROM ANY THIRD-PARTY CLAIMS, DAMAGES, LIABILITIES, COSTS AND FEES (INCLUDING REASONABLE LEGAL FEES) ARISING FROM LICENSEE’S USE OF THE SOFTWARE AS WELL AS FROM LICENSEE’S FAILURE TO COMPLY WITH ANY TERM OR CONDITION OF THIS AGREEMENT.
10 HIGH RISK USES.
THE SOFTWARE IS NOT FAULT TOLERANT, NOR DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE (INCLUDING, WITHOUT LIMITATION, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS) IN WHICH FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY OR INDIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. THE CORPORATION AND ITS AFFILIATES AND THEIR THIRD-PARTY RESELLERS AND SERVICE PROVIDERS SHALL HAVE NO LIABILITY FOR ANY USE OF THE SOFTWARE IN ANY HIGH-RISK SITUATIONS.
11 OWNERSHIP.
11.1 LICENSEE ACKNOWLEDGES THAT THIS AGREEMENT DOES NOT CONVEY ANY OWNERSHIP RIGHT, INTEREST OR TITLE IN OR TO THE LICENSED PRODUCTS OR ANY OTHER CONFIDENTIAL INFORMATION OR ANY RIGHTS ASSOCIATED THEREWITH OR ARISING THEREFROM, AND THAT LICENSEE SHALL NOT OBTAIN ANY INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER RIGHTS TO THE CONFIDENTIAL INFORMATION, EXCEPT WHERE EXPRESSLY SET OUT IN THIS AGREEMENT.
11.2 LICENSEE ACKNOWLEDGES THAT THE SOFTWARE, WITH THE EXCEPTION OF ANY THIRD PARTY SOFTWARE, WHERE APPLICABLE, AND ALL RELATED INFORMATION IS PROPRIETARY TO THE CORPORATION AND ITS AFFILIATES AND THEIR THIRD PARTY RESELLERS AND SERVICE PROVIDERS AND THAT THE CORPORATION AND ITS AFFILIATES AND THEIR THIRD-PARTY RESELLERS AND SERVICE PROVIDERS SHALL OWN AND RETAIN ALL RIGHT, TITLE, AND (EXCEPT AS EXPRESSLY LICENSED HEREUNDER) INTEREST IN AND TO THE INTELLECTUAL PROPERTY AND ALL OTHER CONFIDENTIAL INFORMATION. LICENSEE FURTHER ACKNOWLEDGES THAT THE LICENSED PRODUCTS ARE PROTECTED BY CANADIAN AND INTERNATIONAL COPYRIGHT TREATIES AND OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. ALL RIGHTS IN THE LICENSED PRODUCTS NOT SPECIFICALLY GRANTED UNDER THIS AGREEMENT ARE RESERVED BY THE CORPORATION AND ITS AFFILIATES AND THEIR THIRD-PARTY RESELLERS AND SERVICE PROVIDERS.
11.3 LICENSEE SHALL USE REASONABLE EFFORTS TO SAFEGUARD THE LICENSED PRODUCTS (INCLUDING ALL COPIES THEREOF) FROM INFRINGEMENT, MISAPPROPRIATION, THEFT, MISUSE, OR UNAUTHORIZED ACCESS. LICENSEE AGREES TO NOTIFY LICENSOR IMMEDIATELY OF ANY UNAUTHORIZED POSSESSION OR USE OF THE LICENSED PRODUCTS. LICENSEE WILL PROMPTLY FURNISH FULL DETAILS OF SUCH UNAUTHORIZED POSSESSION OR USE TO LICENSOR, AND LICENSEE WILL ASSIST IN PREVENTING THE RECURRENCE OF SUCH POSSESSION OR USE, AND WILL COOPERATE, AT LICENSEE’S EXPENSE, WITH LICENSOR TO PROTECT THE CORPORATION’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 THE CORPORATION TO RECOVER DAMAGES FROM OR OBTAIN OTHER RELIEF AGAINST LICENSEE.
11.4 LICENSEE ACKNOWLEDGES AND AGREES THAT THE INJURY WHICH WOULD BE SUFFERED BY THE CORPORATION IN THE EVENT OF A BREACH BY THE LICENSEE OF ANY OF THE LICENSEE’S 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 THE CORPORATION, THAT THE CORPORATION SHALL BE ENTITLED TO APPLY TO OBTAIN EQUITABLE RELIEF, INCLUDING BUT NOT LIMITED TO, AN INJUNCTION OR OTHER REMEDY AS MAY BE APPROPRIATE TO RESTRAIN ANY BREACH OR THREATENED BREACH OF THIS AGREEMENT.
12 THIRD PARTY SOFTWARE AND COMPONENTS.
THE SOFTWARE MAY COME WITH OR REQUIRE THIRD PARTY SOFTWARE THAT LICENSEE SHALL LICENSE DIRECTLY FROM THE THIRD-PARTY LICENSOR PURSUANT TO SUCH THIRD-PARTY’S TERMS AND CONDITIONS AND NOT THIS AGREEMENT. ADDITIONALLY, SOME SOFTWARE MAY INCLUDE CERTAIN THIRD-PARTY COMPONENTS AND OPEN-SOURCE SOFTWARE. SUCH OPEN-SOURCE SOFTWARE AND THIRD-PARTY COMPONENTS MAY ALSO BE LOADED ON THE SOFTWARE MEDIA. THIRD PARTY COMPONENTS ARE LICENSED TO LICENSEE UNDER THIS AGREEMENT; OPEN-SOURCE SOFTWARE IS LICENSED PURSUANT TO THE APPLICABLE OPEN-SOURCE LICENSE. TO THE EXTENT APPLICABLE, INFORMATION ABOUT THE OPEN-SOURCE SOFTWARE MAY BE FOUND: (I) IN A FILE ACCOMPANYING THE APPLICABLE SOFTWARE, OR (II) IN THE DOCUMENTATION. LICENSEE SHALL NOT DIRECTLY ACCESS ANY THIRD-PARTY COMPONENTS OTHER THAN WITH OR AS PART OF THE SOFTWARE. LICENSEE AGREES THAT TO THE EXTENT REQUIRED BY A THIRD-PARTY LICENSOR OR SUPPLIER OF A THIRD-PARTY COMPONENT, THAT THIRD PARTY LICENSOR OR SUPPLIER IS AN INTENDED THIRD-PARTY BENEFICIARY OF THIS AGREEMENT AS NECESSARY TO PROTECT INTELLECTUAL PROPERTY RIGHTS IN THE THIRD-PARTY COMPONENTS AND LIMIT CERTAIN USES THEREOF.
13 LICENCE FEES AND PAYMENT TERMS.
IN CONSIDERATION OF THE CORPORATION GRANTING THE LICENSE IN THE SOFTWARE TO LICENSEE, LICENSEE AGREES TO PAY THE APPLICABLE LICENSE FEES TO LICENSOR FOR THE LICENSED PRODUCTS WITHIN THIRTY (30) CALENDAR DAYS OF THE DATE OF INVOICE OR SUCH OTHER DATE AS AGREED TO IN WRITING BY THE PARTIES. SOFTWARE LICENSE FEES ARE NON-REFUNDABLE, EXCEPT AS OTHERWISE PROVIDED IN SECTION 6 ABOVE, AND SHALL BE PAID WITHOUT ANY DEDUCTION OR TAX WITHHOLDING. SOFTWARE LICENSE FEES ARE EXCLUSIVE OF ANY APPLICABLE TRANSPORTATION CHARGES, SALES, USE, VALUE ADDED TAX, AND OTHER APPLICABLE TAXES AND DUTIES, AND ALL SUCH AMOUNTS SHALL BE PAID BY LICENSEE. LICENSEE SHALL BE LIABLE FOR ALL OUTSTANDING PAST DUE AMOUNTS, WHICH SHALL ACCRUE INTEREST AT THE RATE OF 1.5% FINANCE CHARGE PER MONTH (WHICH IS EQUIVALENT TO 18% PER ANNUM) OR THE HIGHEST SUCH CHARGE PERMITTED BY APPLICABLE LAW, WHICHEVER IS LESS. LICENSEE SHALL PAY ALL COSTS, INCLUDING REASONABLE LEGAL FEES AND COSTS INCURRED BY LICENSOR IN COLLECTING OVERDUE AMOUNTS.
14 AUDITS.
14.1 THE CORPORATION OR ITS AUDITOR HAS THE RIGHT TO VERIFY LICENSEE’S COMPLIANCE WITH THE LICENSES ISSUED UNDER THE APPLICABLE PRODUCT ORDERS AND THIS AGREEMENT. LICENSEE AGREES TO:
14.1.1 RECORDKEEPING. KEEP, AND UPON THE REQUEST OF THE CORPORATION OR ITS AUDITOR, PROVIDE RECORDS, SUFFICIENT TO CERTIFY LICENSEE’S COMPLIANCE WITH THIS AGREEMENT BASED ON THE APPLICABLE LICENSE OPTIONS (INCLUDING APPLICABLE LICENSE METRIC AND OTHER TERMS AND CONDITIONS) FOR THE SOFTWARE, WHICH MAY INCLUDE BUT ARE NOT LIMITED TO, SERIAL NUMBERS, LICENSE KEYS, LOGS, THE LOCATION AND MODEL (INCLUDING QUANTITY AND TYPE OF PROCESSOR) OF ALL MACHINES ON WHICH THE SOFTWARE IS INSTALLED OR ACCESSED OR FROM WHICH THE SOFTWARE CAN BE ACCESSED, THE NAMES (INCLUDING CORPORATE ENTITY) AND NUMBER OF USERS ACCESSING OR OTHERWISE ABLE TO ACCESS THE SOFTWARE, METRICS, REPORTS, COPIES OF THE SOFTWARE (BY PRODUCT AND VERSION), AND NETWORK ARCHITECTURE DIAGRAMS AS THEY MAY RELATE TO LICENSEE’S LICENSING AND DEPLOYMENT OF THE LICENSED PRODUCTS AND ASSOCIATED MAINTENANCE AND SUPPORT SERVICES;
14.1.2 QUESTIONNAIRE. WITHIN SEVEN (7) CALENDAR DAYS OF REQUEST OF THE CORPORATION OR ITS AUDITOR, LICENSEE SHALL FURNISH TO THE CORPORATION OR ITS AUDITOR A COMPLETED QUESTIONNAIRE PROVIDED BY THE CORPORATION OR ITS AUDITOR, ACCOMPANIED WITH A WRITTEN STATEMENT SIGNED BY A DIRECTOR OF LICENSEE CERTIFYING THE ACCURACY OF THE INFORMATION PROVIDED;
14.1.3 ACCESS. DURING THE LICENSEE’S NORMAL BUSINESS HOURS, PROVIDE REPRESENTATIVES OF THE CORPORATION OR ITS AUDITOR ANY NECESSARY ASSISTANCE AND ACCESS TO RECORDS AND COMPUTERS TO ALLOW AN INSPECTION AND AUDIT OF LICENSEE’S COMPUTERS AND RECORDS FOR COMPLIANCE WITH THIS AGREEMENT AND ALL LICENSES ISSUED IN CONNECTION WITH THIS AGREEMENT OR APPLICABLE PRODUCT ORDER, AND FULLY COOPERATE WITH SUCH AUDIT; AND
14.1.4 NON-COMPLIANCE. IN THE EVENT THAT LICENSEE HAS, OR AT ANY TIME HAS HAD, UNLICENSED INSTALLATION, USE OF, OR ACCESS TO THE LICENSED PRODUCTS OR THE PRODUCTS OF THE CORPORATION, OR HAS OTHERWISE BREACHED THE TERMS AND CONDITIONS OF THIS AGREEMENT (“NON-COMPLIANCE”), WITHOUT PREJUDICE TO ANY OTHER RIGHTS OR REMEDIES THE CORPORATION MAY HAVE, INCLUDING BUT NOT LIMITED TO, INJUNCTIVE RELIEF, LICENSEE SHALL, WITHIN THIRTY (30) CALENDAR DAYS’ NOTICE OF SUCH NON-COMPLIANCE TO LICENSEE, PURCHASE SUFFICIENT LICENSES AND/OR ASSOCIATED MAINTENANCE AND SUPPORT SERVICES TO CURE THE NON-COMPLIANCE, BY PAYING: (I) THE CORPORATION’S CURRENT (AS OF THE DATE OF SUCH ADDITIONAL PURCHASE) LIST LICENSE FEES, (II) THE CORPORATION’S CURRENT (AS OF THE DATE OF SUCH ADDITIONAL PURCHASE) LIST TERM MAINTENANCE AND SUPPORT SERVICES FEES, AND (III) INTEREST (COMPOUNDED AT 1.5% MONTHLY (WHICH IS EQUIVALENT TO 18% PER ANNUM) OR THE HIGHEST SUCH CHARGE PERMITTED BY APPLICABLE LAW, WHICHEVER IS LESS) FOR SUCH ADDITIONAL LICENSES AND MAINTENANCE AND SUPPORT SERVICES FOR THE TIME PERIOD FROM THE COMMENCEMENT OF THE NON-COMPLIANCE UNTIL PAYMENT OF THE AFOREMENTIONED FEES, WITH INTEREST PAYABLE EVEN IF AN INVOICE WAS NOT ISSUED AT THE TIME THE NON-COMPLIANCE OCCURRED. FOR PURPOSES OF THE FOREGOING, “LIST” SHALL MEAN THE CORPORATION’S FULL LIST PRICE AS SET FORTH IN THE CORPORATION’S STANDARD PRICE LIST THAT IS CURRENT AS OF THE COMMENCEMENT OF THE AUDIT WITHOUT ANY VOLUME OR OTHER DISCOUNT. IF LICENSEE’S NON-COMPLIANCE RESULTS IN AN UNDERPAYMENT OF LICENSE FEES OF 5% OR GREATER, LICENSEE SHALL ALSO REIMBURSE THE CORPORATION FOR THE REASONABLE COST OF SUCH AUDIT IN ADDITION TO OTHER AMOUNTS DUE. IN THE EVENT OF A DISPUTE RELATED TO A NON-COMPLIANCE, THE CORPORATION SHALL HAVE THE RIGHT TO COLLECT FROM LICENSEE ITS COSTS (INCLUDING REASONABLE LEGAL FEES) INCURRED IN ENFORCING THIS AGREEMENT.
15 RELATED SERVICES.
LICENSEE SHALL BE RESPONSIBLE FOR OBTAINING AND INSTALLING ALL PROPER HARDWARE AND OTHER THIRD-PARTY SUPPORT SOFTWARE (INCLUDING OPERATING SYSTEMS) FOR THE PROPER INSTALLATION AND IMPLEMENTATION OF THE SOFTWARE. IN THE EVENT THAT LICENSEE RETAINS THE CORPORATION TO PERFORM ANY SUCH SERVICES WITH RESPECT TO THE SOFTWARE (FOR EXAMPLE: INSTALLATION, IMPLEMENTATION, DATA CONVERSION, MAINTENANCE, CONSULTING, OR TRAINING SERVICES), LICENSEE AND THE CORPORATION AGREE THAT SUCH SERVICES SHALL BE PROVIDED AT THE CORPORATION’S THEN-CURRENT STANDARD TERMS, CONDITIONS, AND RATES FOR SUCH SERVICES UNLESS OTHERWISE AGREED IN WRITING BY THE CORPORATION.
16 PRIVACY AND USE OF LICENSEE INFORMATION.
16.1 RESPONSIBILITY AND COMPLIANCE WITH LAWS.
16.1.1 LICENSEE IS SOLELY RESPONSIBLE FOR AND ASSUMES ALL LIABILITY WITH RESPECT TO ITS OWN COLLECTION, PROCESSING, STORAGE, AND TRANSFER OF ANY USER DATA, INCLUDING, BUT NOT LIMITED TO, PERSONALLY IDENTIFIABLE INFORMATION AND PERSONAL HEALTH AND FINANCIAL INFORMATION (COLLECTIVELY, “PERSONAL INFORMATION”). LICENSEE SHALL BE SOLELY RESPONSIBLE FOR NOTIFYING ITS USERS OF PROPER USE OF SUCH PERSONAL INFORMATION. EACH PARTY IS RESPONSIBLE FOR COMPLYING WITH ITS RESPECTIVE OBLIGATIONS UNDER ALL APPLICABLE LAWS, REGULATIONS, AND INDUSTRY STANDARDS REGARDING DATA COLLECTION AND DATA PRIVACY APPLICABLE FOR THE USE OF THE SOFTWARE BY THE RELEVANT PARTY.
16.1.2 LICENSEE SHALL NOT PROVIDE ANY PERSONAL INFORMATION TO LICENSOR FOR PROCESSING BY LICENSOR ON BEHALF OF LICENSEE, UNLESS OTHERWISE AGREED BY THE PARTIES IN WRITING IN AN APPLICABLE TRANSACTION DOCUMENT WITH APPLICABLE PRIVACY TERMS. IF THE PARTIES AGREE THAT PROCESSING PERSONAL INFORMATION IS NECESSARY FOR THE PERFORMANCE OF THIS SPECIFIC TRANSACTION, AND WHEN SUCH PERSONAL INFORMATION PROCESSING FALLS WITHIN THE SCOPE OF ANY APPLICABLE FEDERAL, PROVINCIAL, OR STATE PRIVACY LEGISLATION BEFORE ANY PERSONAL INFORMATION IS MADE AVAILABLE TO LICENSOR, THE PARTIES AGREE THAT LICENSEE WILL BE THE DATA CONTROLLER AND LICENSOR WILL BE THE DATA PROCESSOR, AND WHEN LICENSOR IS PROCESSING PERSONAL INFORMATION ON BEHALF OF LICENSEE, SUCH PROCESSING SHALL BE GOVERNED BY TERMS THAT COMPLY WITH THE APPLICABLE SECTIONS OF ANY SUCH FEDERAL, PROVINCIAL OR STATE PRIVACY LEGISLATION.
16.1.3 LICENSOR WILL NOT HAVE ACCESS TO ANY PERSONAL INFORMATION UNLESS THE PARTIES HAVE AN EXECUTED BUSINESS ASSOCIATE AGREEMENT IN PLACE FOR THIS TRANSACTION. LICENSEE IS SOLELY RESPONSIBLE FOR ASSESSING THE LICENSED PRODUCT OR ANY RELATED PRODUCT OR SERVICE FOR COMPLIANCE WITH ANY INDUSTRY REQUIREMENTS APPLICABLE TO LICENSEE. FURTHER INFORMATION ABOUT LICENSOR’S PROCESSING OF PERSONAL INFORMATION CAN BE PROVIDED BY LICENSOR AT LICENSEE’S REQUEST.
16.2 CONSENT TO USE OF LICENSEE INFORMATION. TO THE EXTENT REQUIRED OR PERMITTED BY LAW, LICENSEE HEREBY EXPRESSLY CONSENTS TO (I) RECEIVING INFORMATION FROM THE CORPORATION FROM TIME TO TIME ADVERTISING THE CORPORATION’S PRODUCTS; AND (II) THE COLLECTION AND USE OF INFORMATION ABOUT THE COMPUTER SYSTEM, HARD DRIVES, NETWORKS, AND ANY OTHER STORAGE MEDIA ON WHICH THE SOFTWARE IS INSTALLED (E.G. PRODUCT VERSION, SERIAL NUMBER) FOR INTERNAL SECURITY AND LICENSING PURPOSES.
17 LICENSEE TRADEMARK AND FEEDBACK.
SUBJECT TO THE LICENSEE’S PRIOR WRITTEN CONSENT, THE CORPORATION MAY USE LICENSEE’S NAME AND LOGO FOR BUSINESS DEVELOPMENT AND MARKETING PURPOSES, INCLUDING, BUT NOT LIMITED TO, USE IN THE CORPORATION’S CUSTOMER LISTS, ONLINE AND PRINTED SALES AND MARKETING MATERIALS, PROMOTIONAL MATERIALS, AND PRESS RELEASES. ANY SUGGESTIONS, IDEAS FOR MODIFICATIONS, ENHANCEMENTS, AND OTHER FEEDBACK FROM LICENSEE REGARDING THE SOFTWARE PROVIDED AT ANY TIME (COLLECTIVELY, THE “FEEDBACK”), INCLUDING BUT NOT LIMITED TO, ALL INTELLECTUAL PROPERTY RIGHTS IN AND TO SUCH FEEDBACK, SHALL BE OWNED EXCLUSIVELY BY THE CORPORATION. LICENSEE HEREBY ASSIGNS ALL RIGHT, TITLE AND INTEREST IN AND TO SUCH FEEDBACK AND ALL THE INTELLECTUAL PROPERTY RIGHTS THEREIN TO THE CORPORATION, WITHOUT THE NECESSITY OF ANY FURTHER CONSIDERATION. TO THE EXTENT ANY FEEDBACK CANNOT BE ASSIGNED TO THE CORPORATION, LICENSEE HEREBY GRANTS TO THE CORPORATION A PERPETUAL, IRREVOCABLE, EXCLUSIVE, WORLDWIDE, ROYALTY-FREE, FULLY PAID-UP LICENSE, WITH THE RIGHT TO SUBLICENCE THROUGH MULTIPLE TIERS TO USE, MAKE, SELL, DISTRIBUTE, EXECUTE, ADAPT, TRANSLATE, REPRODUCE, DISPLAY, PERFORM, MODIFY, CREATE DERIVATIVE WORKS OR OTHERWISE EXPLOIT THE FEEDBACK IN ANY MANNER.
18 MISCELLANEOUS.
18.1 ASSIGNMENT. THE CORPORATION MAY ASSIGN THIS AGREEMENT, INCLUDING ANY RIGHTS OR OBLIGATIONS UNDER THE AGREEMENT (IN WHOLE OR IN PART) TO A PARENT COMPANY OR AN AFFILIATE WITHOUT THE APPROVAL OF THE LICENSEE. LICENSEE MAY NOT ASSIGN OR TRANSFER THIS AGREEMENT OR ANY OF ITS RIGHTS OR DUTIES HEREUNDER, INCLUDING (BUT NOT LIMITED TO) BY MERGER, ACQUISITION BY ANY ENTITY OF ALL OR SUBSTANTIALLY ALL OF LICENSEE’S STOCK OR ASSETS, CHANGE OF CONTROL, OPERATION OF LAW, OR OTHERWISE, WITHOUT THE PRIOR WRITTEN CONSENT OF THE CORPORATION. ANY ATTEMPTED ASSIGNMENT NOT IN ACCORDANCE WITH THIS SECTION SHALL BE NULL AND VOID.
18.2 SURVIVING PROVISION. THE PROVISIONS OF SECTIONS 3, 4, 7, 8, 9, 10, 11, 13, 16 AND 18 HEREOF SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
18.3 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUCTED IN ACCORDANCE WITH THE LAWS APPLICABLE AND IN FORCE IN THE PROVINCE OF ALBERTA, CANADA, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE PROVINCE OF ALBERTA, CANADA, TO SETTLE ANY DISPUTES OR CLAIMS WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
18.4 COMPLIANCE WITH LAWS. THE PARTIES SHALL COMPLY WITH ALL APPLICABLE INTERNATIONAL, FEDERAL, PROVINCIAL AND STATE LAWS AND REGULATIONS WITH RESPECT TO THE SALE, USE AND LICENSING OF THE SOFTWARE SUBJECT TO THIS AGREEMENT AND THEIR PERFORMANCE OF THIS AGREEMENT. LICENSEE FURTHER AGREES TO ADHERE TO ALL APPLICABLE EXPORT LAWS AND REGULATIONS WITH RESPECT TO THE SOFTWARE. THE CORPORATION SHALL PROMPTLY NOTIFY LICENSEE IN THE EVENT THE CORPORATION KNOWS OR HAS REASON TO BELIEVE THAT ANY ACT OR REFRAINMENT FROM ACTING REQUIRED BY OR CONTEMPLATED BY THIS AGREEMENT VIOLATES APPLICABLE LAW, RULE OR REGULATION (WHETHER CRIMINAL OR NON-CRIMINAL) OR IF IT BECOMES AWARE THAT ANY SOFTWARE CONTAINS A DEFECT WHICH COULD CREATE A HAZARD OR RISK OF SERIOUS INJURY OR DEATH.
18.5 ENTIRE AGREEMENT. THE APPLICABLE PRODUCT ORDER AND THIS AGREEMENT COLLECTIVELY CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE MATTERS DEALT WITH HEREIN. ALL PREVIOUS AGREEMENTS, PRODUCT ORDERS, PROPOSALS, COMMUNICATIONS, WHETHER WRITTEN OR ORAL, BETWEEN THE PARTIES HAVE BEEN SUPERSEDED BY THIS AGREEMENT. ANY CONFLICTING TERMS AND CONDITIONS OF THE APPLICABLE PRODUCT ORDER AND THIS AGREEMENT SHALL BE RESOLVED ACCORDING TO THE FOLLOWING ORDER OF PRECEDENCE: THE APPLICABLE PRODUCT ORDER AND THEN THIS AGREEMENT IN ALL OTHER RESPECTS.
18.6 WAIVER. NO WAIVER OF ANY RIGHT UNDER THIS AGREEMENT WILL BE EFFECTIVE UNLESS IN WRITING AND SIGNED BY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES (EXCLUDING ANY THIRD-PARTY RESELLER OR SERVICE PROVIDER OF THE CORPORATION). NO WAIVER OF ANY PAST OR PRESENT RIGHT ARISING FROM ANY BREACH OR FAILURE TO PERFORM WILL BE DEEMED TO BE A WAIVER OF ANY FUTURE RIGHT ARISING UNDER THIS AGREEMENT.
18.7 SEVERABILITY. IF ANY PROVISION IN THIS AGREEMENT, OR ANY PART THEREOF, SHALL BE HELD TO BE INVALID OR UNENFORCEABLE, THAT PROVISION, OR PART THEREOF, WILL BE CONSTRUED, LIMITED, MODIFIED OR, IF NECESSARY, SEVERED, TO THE EXTENT NECESSARY, TO ELIMINATE ITS INVALIDITY OR UNENFORCEABILITY, WITHOUT INVALIDATING THE REMAINING PROVISION OF THIS AGREEMENT.
18.8 NO RELIANCE. EACH PARTY ACKNOWLEDGE THAT IN ENTERING INTO THIS AGREEMENT IT HAS NOT RELIED ON ANY REPRESENTATIONS, AGREEMENTS, WARRANTIES, OR OTHER ASSURANCE AND WAIVES ALL RIGHTS AND REMEDIES OTHER THAN THOSE SPECIFICALLY CONTEMPLATED UNDER THIS AGREEMENT.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.