End User License Agreement | Amenaza Technologies Limited

End User License Agreement

End User License Agreement for Amenaza Technologies Limited SecurITree (the "Software")

LICENSE PART 1

This is to confirm that subject to the terms and conditions below, Amenaza Technologies Limited (the "Licensor") agrees to grant to the designated recipient of this software (the "Licensee") the License to use the Software. All terms in this license agreement shall have the meaning given to them as in the Terms and Conditions below.

Please note that this License Agreement is for either: (i) a full license agreement, or (ii) an evaluation license, in which case the Licensee is agreeing to license the Software in order to evaluate whether to enter into a longer term license of the Software. In such case, the use of the Software is restricted and access to the Software will terminate after a set period as described in the Terms and Conditions below.

By agreeing with the terms and conditions below or by installing the Software, the Licensee agrees to the License of the Software for either a full license agreement or an evaluation license agreement on the Terms and Conditions below; agrees to pay such charges as the Licensor may charge from time to time; acknowledges having read and understood this License Part 1 and the Terms and Conditions below; and that the person accepting this License Part 1 and the Terms and Conditions below on behalf of the Licensee is authorized to do so and has the authority to enter into this License. The License shall commence on the clicking of "YES" below (the "Effective Date") and shall continue until terminated in accordance with the Terms and Conditions below.

TERMS AND CONDITIONS

WHEREAS the Licensor has developed the Software (as defined herein) and the Licensee desires to become a licensee of the Software, all on the terms and subject to the conditions of this Agreement; WITNESSETH that in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, and subject to the terms and conditions hereinafter set out, the parties hereto mutually agree as follows:


1. DEFINITIONS AND STANDARD INTERPRETATION

1.1 Definitions. In this Agreement:

(a) "Business Day" means any day exclusive of Saturdays, Sundays and statutory holidays in Alberta;
(b) "Designated System" means the specific local non-shared hard drive on which the License File is installed for the purpose of or in connection with operating the Software, and any computer replacing a Designated System in accordance with clause 2.2;
(c) "Evaluation Period" means a period commencing from the Effective Date, and ending on the date specified in the evaluation license subfile embedded in the Software;
(d) "Force Majeure" means any act of God, nature, war (declared or undeclared), act or omission of government or any regulatory body or agency or official, enactment of law, regulation, rule, riots, strikes, labour dispute, civil disturbance, acts of sabotage or terrorism, epidemics, adverse weather conditions, lightning, earthquake, natural disaster, interruption in telecommunication, power or Internet services, failure or malfunction of computer equipment or software, fire or any other similar events, acts or omissions beyond the reasonable control of the party affected thereby;
(e) "Improvements" means any and all developments or improvements of the Software (whether or not patentable) that the Licensee may develop or acquire during the Evaluation Period or the Term (as the case may be);
(f) "Indebtedness" means any obligation for the payment or repayment of money, whether as principal or surety and whether present or future, actual or contingent;
(g) "Intellectual Property" means all of the Licensor's rights in the following items, including but not limited to all matters regarding the Software:
(i) all patents, patent applications, (whether or not they have been submitted to patent registration authorities), working papers, drawings, specifications, utility models, designs, design registrations, formulae, processes, inventor's certificates, inventions, shop rights, know how, trade secrets and confidential information;
(ii) all registered and unregistered trademarks, service marks, logos, names and other similar rights;
(iii) all copyrightable works and all registered and unregistered copyrights;
(iv) all computer software and hardware, files, documentation, models, and rights relating to them;
(v) all modifications, improvements and development of the items described above;
(vi) all registrations for, and applications for registration of, any of the items described above; and
(vii) for the avoidance of doubt, includes this Agreement;
(h) "Libraries" means the database of Threat Trees and subtrees included with the SecurITree product;
(i) "License" means the license granted by the Licensor to the Licensee in Clause 2 regarding the Software;
(j) "License File" means a subfile of the Software which restricts the operation of the Software to a specific hard drive of a computer;
(k) "Manuals" means the user documentation (including all methodologies) in any version regarding the Software prepared by the Licensor;
(l) "Other Agreements" means such other agreements as may be entered into between the Licensor and the Licensee regarding fees and charges, maintenance, training, changes to the Designated System, Updates, and such other matters as the Licensor and the Licensee may agree;
(m) "Software" means the operational object applications computer program known as SecurITree and the License File (but not in either case the source code), Libraries and Manuals owned by the Licensor and licensed to the Licensee by the Licensor and shall include any Improvements or Updates made or existing from time to time;
(n) "Taxes" includes all present and future taxes, levies, imposts, duties, fees or charges of whatever nature, including but not limited to any sales, value added or goods and services tax, together with interest thereon and penalties in respect thereof and "Taxation" shall be construed accordingly;
(o) "Term" means an indefinite period commencing from the Effective Date, but as may be modified or terminated pursuant to the terms of this Agreement; and
(p) "Updates" means any and all updates, corrections, modifications, supplements, enhancements and additions to the Software or any part thereof provided by the Licensor generally to all Licensees.

1.2 Standard Interpretation. In this Agreement, unless the context otherwise requires:

(a) references to Clauses are to be construed as references to the clauses of this Agreement;
(b) references to (or to any specified provision of) this Agreement or any other document shall be construed as references to this Agreement, that provision or that document as in force for the time being and as amended in accordance with the terms thereof, or, as the case may be, with the agreement of the relevant parties and (where such consent is, by the terms of this Agreement or the relevant document, required to be obtained as a condition to such amendment being permitted) the prior written consent of that party;
(c) words importing the plural shall include the singular, and vice versa, and words importing a gender shall include the opposite or neutral gender, as the case may be;
(d) references to a person shall be construed as including references to an individual, firm, company, corporation, unincorporated body of persons or any State or agency thereof;
(e) references to statutory provisions shall include regulations made pursuant thereto, and shall be construed as references to those provisions as replaced, amended or re-enacted from time to time; and
(f) the division of this Agreement into articles and clauses is for convenience of reference only, and the use of such divisions or headings shall not modify or affect the interpretation of this Agreement.


2. LICENSE

2.1 License. Subject to the terms and conditions of this Agreement the Licensor hereby grants to the Licensee, and the Licensee hereby accepts from the Licensor, a personal, non-exclusive, non-transferable, indivisible license (the "License") from the Effective Date and either:
(a) continuing for the Term, to use the License File on the Designated System and the Software, in each case for its own internal business use only and not for use by or for any third party; or
(b) continuing for the Evaluation Period only, to use the License File on the Designated System and the Software for the purpose of its own internal evaluation of the Software so as to determine whether to enter into a longer term license of the Software, and not for use by or for any third party (the "Purpose"). The Licensee acknowledges and confirms that the Software contains subfiles which restrict the use of the Software,

but in any case subject to termination in accordance with the terms of this Agreement.

2.2 Restriction to Designated System. The Licensee acknowledges and confirms that the License File will restrict the use of the Software to the Designated System. In the event that the Licensee desires to transfer the use of the Software to a newly designated computer from the Designated System, the Licensee shall request prior written permission from the Licensor, which permission shall not be unreasonably withheld provided that such new system is in the same location as the Designated System. Upon receipt of this permission, the Licensee may transfer use of the License File to the newly designated computer. The Licensee shall destroy all copies or records of the Software in the previous Designated System or shall transfer all of these copies or records to the newly designated computer, and shall, if requested by the Licensor, promptly certify in writing that no copies or record of the Software exists outside of the newly designated computer.

2.3 Additional Restrictions. Notwithstanding the License by the Licensor to the Licensee, the Licensee expressly acknowledges and confirms that no rights are granted pursuant to this Agreement to use the Software in any manner whatsoever except as provided for herein, and that the License shall not and does not include any right of the Licensee to directly or indirectly or permit others to:
(a) lease, sell, transfer, assign, rent, encumber, or otherwise dispose of or part with possession in any manner the License, the Software or any part thereto, including but not limited to any sublicenses of the License (with any such purported sublicense being null and void);
(b) deal in any manner whatsoever with any other Intellectual Property of the Licensor;
(c) copy, duplicate or furnish to others any physical, magnetic or other version of the Software, except that if a License has been granted under clause 2.1(a) herein the Licensee may make one copy of the Software solely for back-up purposes. Any such copy shall become the property of the Licensor, and shall be subject to the terms of this Agreement except that no further copies of this copy may be made;
(d) use the Libraries or the Manuals except in conjunction with the Software;
(e) remove any copyright notice contained or included in any material (including the Software) provided by the Licensor;
(f) create or attempt to create the source computer programs or any part of them from the operational object programs licensed under this Agreement;
(g) change, modify, prepare derivative works from, decompile, disassemble, reverse engineer, reconstruct or attempt to do any of the foregoing in any manner whatsoever to or with the Software;
(h) maintain or repair the Software except in accordance with this Agreement;
(i) make, allow or provide access to any party to the Software through the Internet or any network system;
(j) merge the Software into other program material; or
(k) do or undertake any other act not expressly allowed pursuant to this Agreement.

2.4 Licensee Acknowledgment. The Licensee acknowledges that the Licensor is the sole and rightful owner and copyright holder of the Software, that title and ownership remain fully in the Licensor notwithstanding the grant of this License, and that except for the License and rights specifically granted hereunder, all right, title, and interest, including the copyright, in the Software is retained by the Licensor. The Licensee specifically confirms and agrees that the Licensor is not restricted in any manner in dealing with the Software in its sole and absolute discretion, including but not limited to the ability to enter any commercial arrangement with any third party regarding the Software or changing the content or format of the Software in accordance with general changes made to the Licensor's standard offerings.

2.5 Acknowledgment of Updates. For the avoidance of doubt, any and all Updates shall be deemed to be a part of the Software, and shall be governed by and subject to the terms of the License and this Agreement. The Licensee shall have no right to deal in any manner whatsoever with any Update except as specifically provided for in accordance with the terms of this Agreement.

2.6 Acknowledgment of Improvements. Any Improvements to the Software made by the Licensee are for the benefit and ownership of the Licensor alone. The Licensor shall have all exclusive royalty-free rights (including the right to grant licenses and sub-licenses) on any Improvements. The Licensee further covenants and agrees to notify the Licensor of any Improvements, to promptly disclose to the Licensor any and all technical data and information relating to any and all Improvements and to execute promptly and without compensation (but otherwise at the cost of the Licensor) any and all papers and documents and to perform whatever lawful acts may be reasonably deemed necessary by the Licensor in connection with the ownership and protection of the Licensor's rights, title and interest in and to any Improvement. The Licensee shall not license the use of any Improvements for any purpose nor shall the Licensee sell, dispose or encumber any Improvements in any manner whatsoever. The Licensor will grant to the Licensee a license on the terms of the License to use the Improvements, provided that in the case of any Improvement the disclosure of which by the Licensee is subject to any restrictions, legal prohibitions, undertakings given to or conditions, restrictions or restraints imposed by third parties or considerations relating to the validity of any patent in respect of which application is about to be made, any grant by the Licensor to the Licensee under this provision shall be limited accordingly. For the avoidance of doubt, any and all Improvements shall be deemed to be a part of the Software, and shall be governed by and subject to the terms of the License and this Agreement. The Licensee shall have no right to deal in any manner whatsoever with any Improvement except as specifically provided for in accordance with the terms of this Agreement.

2.7 Other Programs. Nothing contained herein shall be construed as extending to the Licensee a license to use any computer programs or software which the Licensor is using under license from any third party. The Licensee specifically acknowledges that the Software:
(a) is a Java application which executes using the Java Runtime Environment, which is copyright 2000 by Sun Microsystems Inc., all rights reserved. Sun grants you ("Licensee") a non-exclusive, royalty free license to use and redistribute this software graphics artwork as individual graphics or as a collection, as part of software code or programs that you develop, provided that (i) this copyright notice and license accompany the software graphics artwork; and (ii) you do not utilize the software graphics artwork in a manner which is disparaging to Sun. Unless enforcement is prohibited by applicable law, you may not modify the graphics, and must use them true to color and unmodified in every way. This software graphics is provided "AS IS" without warranty of any kind. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATION AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED. SUN AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY LICENSEE AS A RESULT OF USING, MODIFYING OR DISTRIBUTING THE SOFTWARE GRAPHICS ARTWORK. IN NO EVENT WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST PROFIT OR DATA, OR FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE GRAPHICS ARTWORK, EVEN IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. If any of the above provisions are held to be in violation of applicable law, void or unenforceable in any jurisdiction, then such provisions are waived to the extent necessary for this Disclaimer to be otherwise enforceable in such jurisdiction. Sun, Sun Microsystems, the Sun Logo and Java are trademarks or registered trademarks of Sun Microsystems, Inc. in the United States and other countries; and
(b) uses Guild Software Copyright (c) 1998, 1999, 2000 757070 Alberta Ltd.. All rights reserved. Permission to use, copy and modify this software and to distribute this software in binary form is granted to the user Amenaza Technologies Limited.

2.8 Purchase of Updates. The Licensee shall have the right to purchase any Updates from the Licensor from time to time in accordance with the terms of this Agreement, provided that:
(a) the Licensee has paid all fees and charges due to the Licensor, and either has kept current all payments pursuant to the Other Agreements, or pays the then prevailing price of such Update as determined by the Licensor; and
(b) all Updates shall be governed by and subject to the terms of this Agreement.


3. RELATIONSHIP

3.1 Relationship. The relationship between the Licensor and the Licensee shall be that of licensor and licensee, and the Licensee expressly acknowledges and agrees that it has licensed the use of the Software hereunder solely for its own use and account (including the Purpose, as the case may be). The granting of the License to the Licensee under this Agreement does not constitute the Licensee, its agents or employees, as an agent, commercial agent or legal representative of the Licensor for any purpose whatsoever. The Licensee has no right or authority to assume or create, and shall not assume or create, any contract, commitment, obligation or responsibility, express or implied, on behalf of or in the name of the Licensor or to bind the Licensor in any manner or thing whatsoever. Nothing in this Agreement shall be deemed in any way or for any purpose to constitute the parties hereto partners in the conduct of any business or otherwise. The relationship created by this Agreement does not constitute the granting of a franchise to the Licensee by the Licensor and no federal, provincial or state franchise statute, law, regulation or rule is intended to or has been applied by the parties, nor shall any such franchise, statute, law, regulation or rule be deemed or construed to apply to the formation, operation, administration or termination of this Agreement.


4. FEES

4.1 Fees. In consideration of the Licensor granting the License, the Licensee shall pay the Licensor such fees as may be described in the Other Agreements.


5. INSTALLATION AND TECHNICAL SUPPORT

5.1 Installation. The Licensee shall be solely responsible for installing the Software on the Designated System. The Software shall be deemed to be accepted upon such installation by the Licensee (or any attempt thereof).

5.2 Technical Support. Solely in the case of a License granted under clause 2.1(a) (and not for the avoidance of doubt in the case of a License granted under clause 2.1(b)) the Licensor, following installation of the Software on the Designated System by the Licensee, shall provide the Licensee with maintenance and Updates in accordance with the terms of this Agreement and as may be separately agreed to between the parties..

5.3 Maintenance of Designated System. The Licensee shall have the sole responsibility to maintain the Designated System, and any other equipment and facilities as are necessary to allow the full and proper operation of the Software. Without limiting the generality of the foregoing, the Licensee shall have the sole responsibility at its own risk and expense to acquire, install, operate, maintain and insure against all risks the Designated System and all other computer systems, hardware and all other software, and acknowledges that the Licensor has no responsibility with respect thereto.


6. TERMINATION

6.1 Events of Termination.
(a) Solely in the case of a License granted under clause 2.1(a) (and not for the avoidance of doubt in the case of a License granted under clause 2.1(b)) the Licensor may terminate this Agreement, and cease the provision of maintenance, in either case without notice or other act upon the occurrence of any of the following events, any of which shall be deemed to be just and reasonable cause for such termination:
(i) the Licensee taking any action, or any legal proceedings are started with respect to, or other steps are taken in respect for, the Licensee to be adjudicated or found bankrupt or insolvent, the winding-up or dissolution of the Licensee or the appointment of a liquidator, administrator, trustee, receiver or similar officer of the Licensee or the whole or any part of its undertakings, assets, rights or revenues;
(ii) the Licensee being prevented by any governmental action from carrying on business with the Licensor for any reason;
(iii) the Licensee committing any breach of or omitting to observe any of the obligations or undertakings expressed to be assumed by it under this Agreement and such breach or omission is continuing ten (10) days after written notice from the Licensor;
(iv) the Licensee assigns, sells or otherwise transfers, or purports to do so, this Agreement, the License or the Software (including for the avoidance of doubt any Update) without the prior written consent of the Licensor; or
(v) the Licensee commits any breach of Clauses 2.2, 2.3 or 7.

(b) Solely in the case of a License granted under clause 2.1(b) (and not for the avoidance of doubt in the case of a License granted under clause 2.1(a)), the Licensor may terminate the License immediately upon demand. Unless terminated earlier by the Licensor, the License and all rights granted to the Licensee pursuant to this Agreement shall terminate on the last day of the Evaluation Period, and the Licensee acknowledges and confirms that the Software contains subfiles which restrict the use of the Software after the expiry of the Evaluation Period.

6.2 Post Termination. Immediately upon termination of the License or this Agreement in any manner whatsoever:
(a) all Indebtedness of the Licensee to the Licensor shall immediately become due and payable;
(b) the Licensee shall discontinue using the Software, and deliver to the Licensor free of charge (and at the Licensee's sole expense) all Software and copies of the Software, all printed material respecting the Software, all backup or tape copies of the Software, and any technical data and information pertaining to any Improvements;
(c) the Licensee will permanently destroy or erase all copies of the Software resident in the Designated System and any other storage devices, and shall certify in writing to the licensor upon demand that all copies of the Software and related materials have been returned or destroyed and that no copies in any form remain in the possession or control of the Licensee;
(d) all rights granted by the Licensor to the Licensee pursuant to this Agreement shall immediately be revoked, cease and shall be relinquished by the Licensee and shall revert to and revest in the Licensor without any further documentation required to be executed and delivered by either party hereto; and the provisions of this Clause, any Indebtedness due from the Licensee to the Licensor, and Clauses 7 (Intellectual Property) and 8 (No Warranty and Remedies) shall survive any termination of this Agreement. Termination of the License and this Agreement by the Licensor is in addition and without prejudice to any other remedy available to the Licensor at law or in equity.

6.3 Extensions and Waivers. Either party to this Agreement may, in writing, grant extensions of time and other indulgences or waive any breach of the covenants hereof by the other party, provided that any such grant or waiver shall not limit or affect the rights of the grantor with respect to any future time limit or breach and such grant or waiver shall be without prejudice to the liability of the recipient.


7. INTELLECTUAL PROPERTY

7.1 Licensee Acknowledgment. The Licensee hereby expressly acknowledges that:

(a) all Intellectual Property is the sole property of the Licensor and remains so even after delivery of any copies of the Software or any other information to the Licensee;
(b) the Software and any other data and materials supplied by the Licensor to the Licensee in machine readable form or otherwise are confidential and proprietary trade secrets of the Licensor protected by law, and are of substantial value to the Licensor, and their use and disclosure must be carefully and continuously controlled; and
(c) the Software is protected by the copyright laws of Canada and the United States of America.

7.2 Licensee Covenant. The Licensee agrees to keep all property of the Licensor (including but not limited to the Software) free and clear of all liens, claims and encumbrances. The Licensee shall have the right, during the Term or the Evaluation Period (as the case may be) and subject to due compliance with the provisions hereof, to use the Software for its own internal business purposes (or the Purpose, as the case may be) as described in this Agreement and, except as permitted in advance in writing by the Licensor, for no other purpose whatsoever. The Licensee will ensure that any and all copyrights, proprietary information and trade marks of the Licensor will remain on the Software programs in machine-readable form, and on all printed material associated with the Software, and that any trade marks of the Licensor will only be used in accordance with the written directions of the Licensor. The Licensee acknowledges that the Software and the Intellectual Property contains proprietary and confidential information of the Licensor, and agrees that the Licensee shall safeguard such information by making its best efforts to prevent the unauthorized copying, use, distribution, installation or transfer of the Software and any other Intellectual Property of the Licensor that the Licensee may become aware of. The Licensee will keep the Software and any Intellectual Property confidential and will not disclose or furnish the Software or any Intellectual Property or any portion thereof to others except as expressly authorized in advance in writing by the Licensor.

7.3 Intellectual Property. The Licensee agrees with respect to the Intellectual Property of the Licensor, to:
(a) comply with all instructions issued by the Licensor relating to the form and manner in which the Intellectual Property shall be used and to discontinue immediately, upon notice from the Licensor, any practice relating to the use of the Intellectual Property which in the Licensor's opinion would or might adversely affect the rights or interests of the Licensor in the Intellectual Property;
(b) notify the Licensor immediately of any unauthorised possession, use or knowledge of any item supplied to the Licensee pursuant to this Agreement;
(c) refrain from contesting the title of the Licensor or any party through which the Licensor claims to its Intellectual Property or effecting any registrations thereof (including but not limited to the Licensor's copyrights in the Software) or taking any action to the detriment of the Licensor's interests therein; and
(d) provide assistance to the Licensor (at the Licensor's cost) to protect its Intellectual Property rights, including assisting with any registrations of the Intellectual Property that the Licensor deems necessary and keeping the Licensor informed on any infringements of the Intellectual Property that the Licensee is or becomes aware of.

7.4 Remedy. The Licensee hereby agrees to indemnify and save and hold harmless the Licensor from and against any and all liabilities, losses, costs, court costs, damages, expenses and reasonable legal fees on a solicitor and his own client basis, accountant and other professional fees resulting from, arising out of or in connection with the Licensee's use and/or disclosure of the Software in violation of this Agreement or as a result of any other breach of this Agreement; or any claim, demand, proceeding or action made or brought by any person other than the Licensee against the Licensor relating in any manner whatsoever, or arising out of or in connection with the Licensee's use and/or disclosure of the Software in violation of this Agreement or as a result of any other breach of this Agreement. The Licensee acknowledges and agrees that, without prejudice to any other rights of the Licensor, in the event of the Licensee's violation or attempted violation of any of the covenants contained in Clause 7 of this Agreement, an injunction or any other like remedy is the only effective remedy to protect the rights and property of the Licensor, and the Licensee shall not oppose and shall consent to the granting of an interim injunction immediately on the commencement of any suit.


8. NO WARRANTY

8.1 Limited Warranty. The Licensor warrants to the Licensee that with respect to the Software:
(a) it has the right to license the Software;
(b) to its actual knowledge does not infringe upon or violate any patent, copyright, trade secret or any other proprietary or intellectual property right or contractual right of any other persons.

8.2 No Other Warranties. EXCEPT AS SPECIFICALLY PROVIDED IN CLAUSE 8.1, THERE ARE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THIS AGREEMENT, THE SOFTWARE, ANY SERVICES PROVIDED AS MAINTENANCE, OR ANY SERVICES OR GOODS PROVIDED BY THE LICENSOR TO THE LICENSEE IN CONNECTION WITH THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMITY TO ANY REPRESENTATION, DESCRIPTION, MODELS OR SAMPLES OF MATERIALS. ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING BUT NOT LIMITED TO ANY REPRESENTATION, WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED (ORALLY OR IN WRITING) TO THE LICENSEE, WHETHER GIVEN BY THE LICENSOR OR ITS AGENTS, REPRESENTATIVES, EMPLOYEES OR OTHER PERSONS, ARE EXPRESSLY DISCLAIMED AND NEGATED. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS. THE LICENSOR ALSO MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO USE OF THE SOFTWARE IN ANY MODIFIED FORM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS.

8.3 Litigation Defence. The Licensor shall defend or settle, at its own expense, any claim, demand, proceeding or action made or brought against the Licensee to the extent that the claim, demand, proceeding or action is based on a claim relating to the Licensor's ownership or authority to license or grant any of the rights hereunder in relation to the Software. In such defences, settlements and payments:

(a) the Licensee shall notify the Licensor promptly in writing of any such claim, demand, proceeding or action;
(b) the Licensor is granted the sole control of the defense of any such claim, demand, proceeding or action and of all negotiations for its settlement or compromise. Notwithstanding the foregoing, the Licensee may be represented in any such claim, demand, proceeding or action at its own expense and by its own counsel; and
(c) the Licensee must cooperate with the Licensor in all reasonable (non-financial) ways to facilitate the defence or settlement of the claim, demand, proceeding or action.

8.4 Licensee Representations. The Licensee represents to the Licensor, and acknowledges that the Licensor is relying on such representation to enter into this Agreement, that the Licensee accepts sole and exclusive responsibility for:

(a) the selection of the Software to achieve the Licensee's intended results;
(b) the use of the Software, and that the Licensor has no control over the conditions under which the Licensee uses the Software and cannot and does not warrant the results obtained by such use; and
(c) the results (if any) obtained from the Software.

Without limiting the generality of the foregoing, the Licensee irrevocably acknowledges and confirms that (i) the use of the Software, and the results (if any) obtained, require the Licensee to weigh and apply its own individual assessment of numerous factors, including but not limited to assessment of risk; (ii) the Licensee accepts sole and complete responsibility for all such matters; and (iii) the Licensor has no responsibility or liability with respect thereto.

8.5 Licensor Liability. If the Licensor is in any way negligent or breaches the warranties contained in Clause 8.1, the Licensor's sole and exclusive liability to the Licensee shall be limited to the Licensor making repeated efforts to correct any resulting malfunction or failure. The Licensor's total liability to the Licensee for damages from any and all causes whatsoever, regardless of the form of action, whether in contract or in tort, including negligence, breach of the limited warranties and any infringement of any patent rights, copyrights or any misappropriation or unlawful use of any trade secrets, confidential information or other intellectual property rights or property of any third party shall in the aggregate (i) solely in the case of a License granted under clause 2.1(a) (and not for the avoidance of doubt in the case of a License granted under clause 2.1(b)), be limited to an amount equal to the fee actually paid by the Licensee in the first year of the Term; and (ii) solely in the case of a License granted under clause 2.1(b) (and not for the avoidance of doubt in the case of a License granted under clause 2.1(a)), $100 (One Hundred Dollars). The Licensor in any case shall not be liable for indirect, incidental, punitive, exemplary, general, special or consequential damages, the inability or failure to perform any professional or other work, loss of profits (together, "Damages") of any kind whatsoever including but not limited to any such Damages sustained as a result of any breach of this Agreement; Damages arising out of, resulting from or in connection with the Software or the Licensee's use thereof; any act or failure to act relating to this Agreement or the Software; the Licensor's negligence or gross negligence; or any claim made against the Licensee by any other party, even if the Licensor has been advised of the claim or potential claim. The Licensee agrees that it shall not assert any claims against the Licensor based upon theories or facts of negligence, gross negligence, strict liability, fraud, breach of contract or misrepresentation and that it shall indemnify, hold harmless and defend the Licensor against any claim, demand, loss or action resulting from the Licensee's possession or use of the Software.


9. GENERAL MATTERS

9.1 Notice. Every notice, request, demand or other communication required to be given under this Agreement shall be given in writing by first class prepaid letter (airmail if available) or facsimile (confirmed by first class mail) and addressed to the appropriate party at the addresses designated by one party to the other from time to time. Any such notice sent by mail shall be deemed effective and received on the fifth (5th) Business Day after mailing, and if sent by facsimile, on the date and time registered in the transmitting party's transmission registry (provided that the notice is confirmed by first class mail). Any party hereto may change their address for service by sending notice to the other party as provided for herein.

9.2 Time. Time is of the essence in this Agreement.

9.3 Severability. Each of the provisions of this Agreement are severable and distinct from the others and if at any time one or more of such provisions is or becomes invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

9.4 Entire Agreement. This Agreement and the Other Agreements constitute the entire agreement among the parties, supersedes any and all prior oral or written communications, proposals, representations and agreements, and each of the Licensor and the Licensee irrevocably confirm that there are no other written or verbal agreements or representations.

9.5 Further Assurances. Each party covenants and agrees that it will execute such further documents and do and perform or cause to be done and performed such further and other acts as may be necessary or desirable from time to time in order to give full effect to the provisions of this Agreement. In particular, but without limiting the generality of the foregoing, the Licensee shall at the Licensor's request promptly execute and assign any and all applications including, but not limited to, copyright applications, any and all assignments and any other instruments which the Licensor deems necessary to protect or maintain the Licensor's rights in its Intellectual Property, including but not limited to the Software.

9.6 Successors. This Agreement shall enure to the benefit of, and be binding upon, the parties hereto and their respective successors and permitted assigns. This Agreement and any interest therein may not be assigned by the Licensee without the express prior written consent of the Licensor, and any such purported assignment without such express prior written consent will be void.

9.7 Amendments. No amendment to this Agreement shall be valid and binding unless made in writing and signed by an authorised representative of each of the parties hereto.

9.8 Proper Law and Jurisdiction. This Agreement is governed by, interpreted and construed in accordance with, the laws of the Province of Alberta, and the laws of Canada applicable therein. Each of the Licensor and the Licensee hereby agrees that any legal action or proceedings in connection with this Agreement shall be brought in the Court of Queen's Bench in the Province of Alberta, and irrevocably and unconditionally attorns and submits to and accepts the exclusive jurisdiction of such Court. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods signed in Vienna 1980, and any adoption or enactment of the same, does not apply to this Agreement and the matters described herein.

10. NAFTA AFTER SALES SERVICE

10.1 The Licensor and the Licencee each hereby agree that the Licensee may from time to time require a business person who is employed by the Licensor to attend at the Licensee's place of business for purposes of providing after sales service (as described in Appendix 1603 A.1 of the North American Free Trade Agreement) to the Licensee for the Software. Such business persons may be installers, repair and maintenance personnel, and supervisors, possessing specialized knowledge essential to the Licensor's contractual obligation. These personnel shall perform services or train Licensee's workers to perform services, pursuant to the Licensor's warranty or other service contract incidental to the license of the Software, and which has been licensed from the Licensor which is located outside the territory of the Licensee, during the life of the Licensor's warranty or service agreement.





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