Subject to all terms and conditions in this Agreement, Licensor grants Licensee a nonexclusive, nontransferable, nonsubLicensesable right and Licenses to have the User use the Software and Documentation.
The scope of your Licenses depends on the type of Licenses you obtained. The variety of Licenses types are set forth below.
2.2.1 Full Licenses
If you are using the Software under the control of a Full Licenses, you as an individual may install and use the Software on an unlimited number of computers provided that you are the only individual using the Software and only one copy of the Software is in use at any one time. A separate Licenses is required for each additional use and/or individual User in all other cases. Licensor will provide you with a Licenses code key that enables the Software for a Full Licenses. If you are an entity, Licensor grants you the right to designate one individual within your organization to have the sole right to use the Software in the manner provided above.
2.2.2 Site Licenses
If you are using the Software under the control of a Site Licenses, you may use the Software on all computers at a named Site. Licensor will provide you with a Licenses code key that enables the Software for a Site Licenses for all computers at that site. Licensor provides the licensee with the source-code of the software. Notwithstanding anything to the contrary elsewhere in this agreement, you may not distribute any portion of the software, including but not limited to the source code.
3.1 Support and Update Services period
If licensee desires to add another “Support and Update Services” period, licensee must inform Licensor at least thirty (30) days before expiration of the current “Support and Update Services” period. licensee needs to buy a new “Support and Update Services” period. The new "Support and Update Services" period commences the date the then active “Support and Update Services” period ends.
Under the explicit condition the “Support and Update Services” as specified in this Article is not expired, licensee is entitled to: Inform Licensor of a failure licensee has detected in the Software, through electronic message (email) and upon receipt of such additional information as Licensor may request, Licensor will act in an expeditious manner to (attempt to) correct the defect in the Software and provide licensee with the corrected Software. Licensor shall have no obligation to support any version other than the then current and immediate prior version.
Licensor will provide licensee with any Update that it makes generally available to its other licensees which have purchased the same level of support. Any Update delivered by Licensor shall be treated as Software for all purposes under this Agreement.
Licensee is obliged to provide Licensor with a valid e-mail address to allow Licensor to fulfill the obligations forced by this article. Licensor will send updates as attachments to this e-mail address in ZIP archive format. licensee is obliged to allow his electronic mail infrastructure to receive this type of e-mail. Failure by licensee to comply with the above requirements may result in Licensor being unable to fulfill the “Support and Update Services” as described in this article. Licensor will not be liable for damages resulting from such failure.
3.4 Expiration of “Support and Update Services”
On expiration of the “Support and Update Services” as described in this Article, the remainder of this Agreement shall continue in full force and effect.
The term Confidential Information means all trade secrets, know-how, Software and other financial, business or technical information of Licensor or any of its suppliers that is disclosed by or for Licensor in relation to this Agreement, but not including any information licensee can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation to the Licensor, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on such information. All Software and Documentation is Confidential Information.
Except for the specific rights granted by this Agreement, licensee shall not possess, use or disclose any Confidential Information without Licensor's prior written consent, and shall use reasonable care to protect the Confidential Information. licensee shall be responsible for any breach of confidentiality by its employees.
Licensee shall not (a) use any Confidential Information to create any Software or documentation that is similar to any Software or Documentation, (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Software (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, lease, rent, loan, subLicenses, transfer or distribute any Software, (d) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify any Software or Documentation, (e) use the Software in an automated process, (f) use the Software, or allow the transfer, transmission, export or re-export of all or any part of the Software or any product thereof, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (g) permit any third party to engage in any of the foregoing proscribed acts.
licensee shall not use the Software for the benefit of any third party (e.g., time-share or service bureau arrangement) without Licensor's prior written consent, at its discretion.
licensee may use the Software to create Applications. The resulting Application, may be distributed or shipped embedded in licensees own products free from royalty in binary form only. Any distribution or shipment of code in linkable form derived from Software is strictly prohibited.
5.2 No Implied Licenses
Except for the limited rights and Licenses expressly granted hereunder, no other Licenses is granted, no other use is permitted and Licensor (and its suppliers) shall retain all right, title and interest in and to the Software and Documentation (and all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights embodied therein).
licensee shall not alter, obscure or remove any trademark, patent notice or other proprietary or legal notice displayed by or contained in any Software, Documentation or packaging.
5.4 Third Party Software
The Software may operate or interface with Software or other technology (In-Licensesd Code) that is in-Licensesd from, and owned by, third parties (Third Party Licensors). licensee agrees that (a) it will use In-Licensesd Code in accordance with this Agreement and any other restrictions specified in the applicable Licenses set forth or referenced in the Documentation, (b) no Third Party Licensor makes any representation or warranty to licensee concerning the In-Licensesd Code or Software and (c) no Third Party Licensor will have any obligation or liability to licensee as a result of this Agreement or licensee's use of the In-Licensesd Code.
The software and "Support and Update Services" are provided "as is" without warranty of any kind. Licensor does not warrant that the software or “Support and Update Services” will meet licensee's requirements or that they will be uninterrupted or error-free. To the fullest extent permitted by law, licensor hereby disclaims (for itself and its suppliers) all other warranties, whether express or implied, oral or written, with respect to the software and “Support and Update Services” including, without limitation, all implied warranties of title, non-infringement, quiet enjoyment, integration, merchantability or fitness for any particular purpose and all warranties arising from any course of dealing, course of performance or usage of trade.
In no event shall licensor (or its suppliers) be liable concerning the subject matter of this agreement, regardless of the form of any claim or action (whether in contract, negligence, strict liability or otherwise), for any (a) matter beyond its reasonable control, (b) loss or inaccuracy of data, loss or interruption of use, or cost of procuring substitute technology, goods or “Support and Update Services”, (c) indirect, punitive, incidental, reliance, special, exemplary or consequential damages including, but not limited to, loss of business, revenues, profits or goodwill, or (d) aggregate damages, in excess of the amount paid to licensor for the software or “Support and Update Services” that gave rise to the claim during the prior 12-month period, even if licensor has been advised of the possibility of such damages. These limitations are independent from all other provisions of this agreement and shall apply notwithstanding the failure of any remedy provided herein.
With explicit exclusion of the "Support and Updates Services", this Agreement shall commence on the Effective Date and continue in effect until terminated as provided herein.
licensee may terminate this Agreement at any time for its convenience upon written notice to Licensor. This Agreement shall automatically terminate without further action by any party, immediately upon any material breach by licensee of any limitation or restriction set forth in Section 2.2, 2.2.1, 2.2.2 or 5.1.
8.3 Effects of Termination
Upon termination of this Agreement for any reason, all rights, obligations and Licensess of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination and any remedies for breach of this Agreement shall survive any termination, (b) licensee shall promptly return or destroy all Software and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media and (c) the provisions of Sections 4 (Confidentiality), 5 (Proprietary Rights), 6 (Warranty Disclaimers), 7 (Limitation of Liability), 9 (General Provisions) and this Section 8 shall also survive.
9.1 Entire Agreement
This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Terms set forth in licensee's Purchase Order (or any similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by licensee. All such terms are considered to be proposed material alternations of this Agreement and are hereby rejected. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta, Canada, without regard to its conflicts of law provisions.
Unless specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. licensee agrees that, in the event of any breach or threatened breach of Section 4 or 5, Licensor will suffer irreparable damage for which there is no adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested. Notices shall be delivered to the address specified by licensee when the Software was ordered, or to the address above for Licensor, as the case may be, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
This Agreement and the rights and obligations hereunder are personal to licensee, and may not be assigned or otherwise transferred, in whole or in part, without Licensor's prior written consent. Any attempt to do otherwise shall be void and of no effect. Without licensee's consent, Licensor may assign this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
9.6 Independent Contractors
The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
9.7 Licenses to the Government
If any User of the Software or Documentation is a department, agency or other entity of the United States Government, the use, duplication, reproduction, modification, release, disclosure or transfer of the Software and Documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Software is commercial computer Software and the Documentation is commercial computer Software documentation, and their use is further restricted in accordance with the terms of this Agreement.
9.8 Basis of Bargain
Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations are material bargained-for bases of this agreement and that they have been taken into account by each party and reflected in determining the consideration to be given by each party hereunder and in the decision to enter into this agreement.
licensee acknowledges that
(a) it has read and understands this Agreement.
(b) it has had an opportunity to have its legal counsel review this Agreement.
(c) this Agreement has the same force and effect as a signed agreement.
(d) Licensor requires identification of the User and licensee before issuing this Licenses.
(e) issuance of this Licenses does not constitute general publication of the Software or any other Confidential Information.