End User Licence Agreement

1. Definitions In this Agreement

1.1 "Annual License Renewal Fee" is the annual amount payable by the Customer to the Supplier for the right to continue to use the Software and includes the continued support and Maintenance Services for the Software.

1.2 "Documentation" means the "User Guide" and such other documentation as may be provided by Supplier to Customer for use with the Software;

1.3 "Hardware" means the computer equipment purchased from or approved by Supplier;

1.4 "License Fee" means the initial license fee, and any periodic license fee payable by the Customer for the right to use the Software

1.5 "Maintenance Services" means the maintenance services described in section 4 and any additional consulting services;

1.6 "Software" means the set of computer programs and the files necessary to operate the computer programs, provided to Customer by Supplier, including the screen layouts, document formats, file structures and other copyrightable elements used in processing data, and any updates, changes, enhancements or modifications provided by Supplier.

2. Grant of License

2.1 Subject to the Customer’s timely payment of the Software License Fee and the Annual License Renewal Fee and compliance with the terms and conditions of this Agreement, Supplier grants to Customer a non exclusive, non transferable, personal license to use the Software and Documentation at the location(s) for which the license was purchased. The license granted is restricted to the use of the Software and Documentation by Customer, through its employees and contractors only, solely for Customer’s own internal business purposes. Customer shall not use the Software to provide data processing services to any other person or business.

2.2 Customer may use the Software only on the Hardware. Customer may use the Software for live transaction processing on a back up computer when the Hardware is inoperable, until operable status is restored.

2.3 Customer shall have no right to sublicense, assign or otherwise transfer use of the Software to any third party, without prior written approval of the Supplier.

2.4 No copies of any portions of the Software may be made by Customer or its employees or contractors, except as expressly permitted in this Agreement. Customer may make a reasonable number of copies of the Software for archival and back up purposes. All copies shall be the property of Supplier.

2.5 Customer shall not derive or attempt to duplicate, or permit or help others to derive or duplicate, the source code relating to the Software. Customer shall not, or assist any person in any attempt to, disassemble or decompile any of the Software or undertake any attempt to reverse engineer or recreate any of the processes embodied in the Software.

3. Required Hardware and Software

3.1 Customer acknowledges and agrees that the Software is designed to be used on the hardware configuration and with the network, operating system and application software programs described in the Documentation. Except for the Hardware and Software supplied by Supplier, Customer is solely responsible for acquiring and maintaining all required hardware and software and for obtaining and complying with all applicable software licenses.

4. Maintenance Services

4.1 Subject to the payment by Customer of the Annual License Renewal Fee, Supplier will provide the following maintenance services:

Corrections: Supplier will use commercially reasonable efforts to correct defects in the Software reported by Customer that cause a failure of the current version of the Software to perform in accordance with the Documentation. Supplier will also make available to Customer, as and when they are available, any other corrections or minor software modifications made by Supplier. If Customer is using a non-current version of the Software, Supplier shall not be responsible for correcting any errors that have been corrected in the current version of the Software. Supplier does not warrant that all errors in the Software can be corrected, but all avenues will be explored in an attempt to make a correction.

New versions: Supplier will make available to Customer, as and when they are released by Supplier, all new versions of the Software and Documentation released during the period for which Annual License Renewal Fees are paid.

4.2 Supplier shall have no obligation to provide any Maintenance Services that are required due to modifications made to the Software by any person other than Supplier or as a result of Customer’s failure to follow the procedures set out in the Documentation or as a result of the failure of any other hardware or software. Supplier may provide such services on a time and materials basis, at its current rates, subject to availability of support personnel. Customer acknowledges that it is solely responsible for backing up and restoring all software and data.

4.3 Maintenance Services shall commence upon delivery and installation of the Software and shall continue for a period of one (1) year. Maintenance Services shall automatically be renewed annually thereafter.

4.4 Termination. Customer may terminate the Maintenance Services at any time upon ninety (90) days written notice. If Customer terminates the Maintenance Services, this Agreement and Customer’s license to use the Software shall also terminate at the end of the notice period.

5. Warranties

5.1 SUPPLIER WILL USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT, VIA REMOTE TELEPHONE COMMUNICATION OR OTHERWISE, FAILURES OF THE SOFTWARE TO PERFORM IN ACCORDANCE WITH THE DOCUMENTATION REPORTED BY CUSTOMER. THE FOREGOING SHALL BE SUPPLIER’S SOLE OBLIGATION AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY FAILURE OF THE SOFTWARE TO PERFORM IN ACCORDANCE WITH THE DOCUMENTATION. ALL WARRANTIES ARE VOID IF CUSTOMER OR ANY THIRD PARTY CHANGES OR MODIFIES THE SOFTWARE.

5.2 CUSTOMER ACKNOWLEDGES THAT HARDWARE SUPPLIED BY SUPPLIER IS MANUFACTURED BY THIRD PARTIES AND SUPPLIER IS NOT RESPONSIBLE FOR THE PERFORMANCE OF OR ANY DEFECTS IN THE HARDWARE. SUPPLIER WILL USE COMMERCIALLY REASONABLE EFFORTS TO EXTEND THE BENEFITS OF THE APPLICABLE MANUFACTURER’S WARRANTY TO CUSTOMER AND TO ASSIST CUSTOMER IN OBTAINING WARRANTY SERVICE. 

5.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE AND HARDWARE ARE PROVIDED ON AN "AS-IS" BASIS.  THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SUPPLIER DOES NOT WARRANT THAT ALL ERRORS IN THE SOFTWARE CAN OR WILL BE CORRECTED.

5.4 Subject to Section 6, Customer indemnifies and holds Supplier harmless from any and all liability, claims, costs, expenses or damages arising out of or related to Customer's use of the Hardware, Software or Documentation.

6. Infringement

6.1 Supplier will, at its own expense, defend or settle any action brought against Customer based on a claim that the Software infringes any Canadian patent, copyright, trademark, trade secret or other intellectual property right and will pay all damages awarded against Customer which are directly attributable to such claim, provided Customer promptly notifies Supplier when it receives any notice of such claim or allegation of infringement, and provided further that Supplier has the sole control of the defence and settlement of any such claim.

6.2 Supplier shall not be liable for any infringement claim based on the use of the Software in combination with programs not supplied or approved by Supplier, or on any modifications to the Software or Documentation made by Customer or any person not authorized by Supplier to make such modifications.

6.3 If Customer is prevented from using the Software due to an infringement claim or Supplier reasonably determines that the Software is or may become the subject of an infringement claim, Supplier may, at its sole option and expense, either (a) modify the Software so that it does not infringe; (b) obtain for Customer the right to continue using the Software; (c) replace the Software with non-infringing software

6.4 ; or (d) if none of the foregoing are reasonably available, refund the depreciated cost of the Software (calculated on a three-year, straight line basis) and terminate this Agreement.

6.5 THIS SECTION 6 STATES THE ENTIRE LIABILITY OF SUPPLIER FOR ANY LOSS OR DAMAGE WHATSOEVER AS A RESULT OF THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.

7. Limitation of Liability7.1 Except as expressly provided in Section 6, Supplier’s sole liability and Customer's exclusive remedy with respect to the use of or inability to use the Hardware or Software shall be the recovery of Customer’s direct damages. Except as expressly provided in Section 6, Supplier's liability for damages to Customer for any cause whatsoever, and regardless of the form or cause of action, whether in contract or in tort, shall not, in the aggregate, exceed the amount paid by Customer to Supplier for the applicable product or service at the affected site(s) during the three months preceding the event giving rise to Customer’s claim.

7.2 In no event will Supplier be liable for:

(a) any special, indirect or consequential damages, even if Supplier has been advised of the possibility thereof including, but not limited to, lost profits, lost revenues, failure to realize expected savings, or other commercial or economic loss of any kind; or

(b) any damages caused by Customer's failure to meet Customer's responsibilities, or arising out of incomplete or inaccurate information provided to Supplier.

7.3 Customer shall be responsible for regularly backing up all data used with the Software. Customer assumes full responsibility for use of the Software and any information entered, used and stored thereon, including, without limitation, protection of data from viruses, or any unintended modification, destruction or disclosure, and for the accuracy and integrity of the results. Supplier assumes no responsibility for Customer negligence or failure to protect data from viruses or any unintended modification, destruction, or disclosure.

7.4 The limitations of warranty and liability in this Section 7 and in Section 5 shall apply whether or not the alleged breach, default, non-performance, failure or liability is a result of a breach of warranty, condition or fundamental term, or a fundamental breach and shall survive the termination of this Agreement.

8. Ownership of Software and Confidentiality

8.1 Customer acknowledges that the Software and Documentation are the proprietary and confidential information of the Supplier and that the only right which Customer obtains is the right of use in accordance with and subject to the terms of this Agreement. Customer will take the same care to safeguard the Software and Documentation as it takes to safeguard its own most confidential information and such care shall not be any less than would be taken by a reasonable person to safeguard such information.

8.2 Audit. In order to assist Supplier in protecting its proprietary rights in the Software and Documentation, Customer shall permit Supplier to inspect, during normal business hours, the facility at which the Software is used. Supplier shall give Customer prior notice of any inspection and shall comply with Customer’s normal security procedures when on Customer’s premises.

8.3 Customer acknowledges that Supplier may require access to information relating to Customer’s business, technology and clients designated in writing as confidential information ("confidential Customer information") in order to perform its obligations under this Agreement. Supplier will take reasonable care to safeguard such information.

9. Term and Termination

9.1 The term of this Agreement shall continue indefinitely, unless terminated as provided hereunder.

9.2 At any time after the first year of the term of this Agreement, Customer or Supplier shall have the right to terminate the Maintenance Services upon ninety (90) days written notice.

9.3 Failure of Supplier or Customer to comply with any term or condition of this Agreement shall entitle the other party to give the party in default written notice requiring it to make good the default. If the default complained of has not been cured within thirty (30) days following receipt of written notice, the notifying party shall be entitled, in addition to any other rights it may have under this Agreement or otherwise at law, to immediately terminate this Agreement by giving written notice to the other.

9.4 This Agreement shall terminate immediately and automatically if Customer is insolvent or bankrupt, or seeks protection from its creditors, or if any assignment of its property is made for the benefit of creditors or otherwise, or if a petition is filed in any court to declare bankruptcy or for re organization under any bankruptcy or insolvency law or similar statute and is not dismissed in thirty (30) days, or if a trustee in bankruptcy or similar officer or a receiver is appointed for Customer.

10. Procedure on Termination

10.1 Upon any termination of this Agreement, Customer shall return the Software and Documentation and any full or partial copies thereof to Supplier and shall certify, by a duly authorized officer of Customer, that the original and all copies of the Software and Documentation have been given up to Supplier, all records or copies of the Software or Documentation in computer memory have been destroyed, and that no copies of any part of the Software and Documentation, in any form, remain in the possession or control of Customer.

11. General

11.1 Neither party shall be liable for delay or failure in performance resulting from acts beyond the control of such party, including, but not limited to Acts of God, acts of war, fire, flood, or other disaster, act of government, strike, lockout, communication line or power failures, failure, inoperability or destruction of any hardware or software other than the Software.

11.2 This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada. The parties will resolve any dispute or disagreement arising out of this Agreement by arbitration in Ontario in accordance with the Arbitration Act (Ontario). The arbitration shall be conducted by a single arbitrator, with experience in information systems, and shall be held in Mississauga, Ontario. The award of the arbitrator shall be final and binding upon the parties, and enforceable in any court of competent jurisdiction.

11.3 Except where another agreement specifically states precedence over this Agreement, this Agreement contains the complete and exclusive statement of the Agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, proposals, negotiations, representations or warranties of any kind, whether oral or written.

11.4 In the event that another agreement specifically states precedence over this Agreement, and contains provisions which conflict with this Agreement, that agreement shall only supersede the terms of this Agreement insofar as those conflicting provisions. Any additional, non-conflicting provisions of this Agreement shall remain in full force and effect and will continue to be binding upon all relevant parties.

11.5 If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from the Agreement and the other provisions shall remain in full force and effect.

11.6 Upon written notice to the Customer, Supplier reserves the right to update and change this Agreement. Supplier will post changes to this Agreement on Supplier’s website and Customer acknowledges that it is advisable to periodically check the website for changes to this Agreement.

11.7 No waiver of a provision of this Agreement shall operate as a waiver of any other provision or as a waiver of the same provision on another occasion.

11.8 In the event of the termination of this Agreement, the provisions of Sections 6, 7, 8, 9, 10 and 11 shall remain in full force and effect.