End-User License Agreement
Copyright Notice
The products (“Products”), as further defined in the applicable sales order (the “Sales Order”), including any and all supporting materials and documentation created and provided by E. Wolski Consulting Inc., are copyrighted works under Canadian and other copyright laws and are the intellectual property rights of E. Wolski Consulting Inc. All Rights Reserved Worldwide. Unauthorized reproduction or distribution of the Products, including any and all supporting documentation, whether in part or whole, is strictly prohibited.
End-User License Agreement
This End-User License Agreement (“License Agreement”) is made between: E. Wolski Consulting Inc., referred to in this License Agreement as the “Licensor”; and You being a company or organization or you as an individual referred to in this License Agreement and the Agreement as the “Licensee” or “You”.
Agreement
- Grant of License
1.1 Subject to payment in full of the license fee(s) as defined in the applicable Sales Order (the “Fees”), the Licensor hereby grants to the Licensee, a limited, non-exclusive, non-transferable license to use the Products subject to the terms and conditions of this License Agreement. The license granted hereunder is limited to the use of the Products within the location as defined in the applicable Sales Order (the “Location”).
1.2 The Licensee shall independently (i) obtain any applicable licenses for third party software necessary to use the Products; and (ii) obtain any applicable computer hardware necessary to use the Products.
- Limited Use
2.1 You may download the Products, make archival copies, and customize the Products only for your use within your company or organization and not for resale or public sharing. Use of the Products is limited to the Location.
2.2 You may share the results of your use of the Products with third parties only if all Microsoft excel® formulas within the results have been removed and the results are showing the calculated values only.
2.3 You may not remove or alter any Licensor logos, trademarks, copyright, disclaimers, brands, terms of use, attribution, or other proprietary notices or marks within the Products.
- Warranty
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, THE LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO ANY MATTER HEREUNDER, INCLUDING WITHOUT LIMITATION, YOUR USE OF THE PRODUCTS AND/OR ANY SERVICES PROVIDED, WHETHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION ANY WARRANTY OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY PROMISE OF ANY LEVEL OF SUCCESS WITH RESPECT TO ANY RESULTS GENERATED BY THE PRODUCTS). LICENSOR DOES NOT GUARANTEE THAT THE PRODUCTS WILL BE ERROR FREE, THAT ANY ERRORS WILL BE FIXED, OR THAT THE PRODUCTS WILL OPERATE ON A COMPUTER SYSTEM THAT DOES NOT MEET THE MINIMUM REQUIREMENTS TO SUPPORT THE LICENSEE’S USE OF THE PRODUCTS. THE PRODUCTS ARE BEING PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS.
- Limitation of Liability
UNDER NO CIRCUMSTANCE SHALL THE LICENSOR (INCLUDING, WITHOUT LIMITATION, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND CONSULTANTS) BE LIABLE TO THE LICENSEE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) ANY LOST PROFIT, LOST DATA, LOSS OF BUSINESS, OR ANY BUSINESS INTERRUPTION, WHATSOEVER OR HOWSOEVER CAUSED ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE LICENSEE’S USE OF THE PRODUCTS OR OTHERWISE EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.
- Intellectual Property Rights
Licensee acknowledges and agrees that all right, title, and interest in and to any intellectual property, including but not limited to the Products, all software applications, source code, formulas, calculations, routines, subroutines, writings, literary works, training curricula, graphics design, videos, business processes, business methods, know-how, designs, drawings, computer programs, and financial, business, commercial or technical information in any form, written materials, data bases, plans, diagrams, drawings, models, and other things (collectively the “Proprietary Materials”) which Licensor, its employees, agents or subcontractors may conceive, develop or contribute to or reduce to practice in the course of providing the Products and any services as defined in the applicable Sales Order (the “Services”) that does not include any Licensee data or information will be the sole property of Licensor and its assigns, and Licensor and its assigns will be the sole owner of all intellectual property rights, including but not limited to copyrights, patents, trade-marks (word marks, design marks, certification or service marks), trade secrets, and other rights in connection with the Proprietary Materials.
- Confidentiality
6.1 A party (the “Disclosing Party”) may, from time to time, disclose to the other (the “Receiving Party”) certain information relating to the Disclosing Party’s business or customers, affiliates, subsidiaries, agents, or employees; business and marketing plans, processes, strategies and methods which may not be standard industry practice or which are not generally known in the industry; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of the Disclosing Party (all collectively referred to as the “Confidential Information”). The Disclosing Party and the Receiving Party acknowledge that Confidential Information will be provided at the sole discretion of the Disclosing Party, and nothing in this Agreement obligates the Disclosing Party, it directors, agents or employees to disclose or grant to the Receiving Party access to any Confidential Information. Unless expressly authorized in writing by the Disclosing Party, the Receiving Party covenants and agrees (a) to use the Confidential Information only for the purposes expressly contemplated in this Agreement; (b) that no Confidential Information will be disclosed to any third party, affiliate, subsidiary, or agent of the Receiving Party without the prior written consent of the Disclosing Party, which may be unreasonably and arbitrarily withheld. The Receiving Party acknowledges that the Disclosing Party remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. The undertakings and obligations of each party under this Section 6.1 shall not apply to any information which it can establish it: (i) became publicly known through no action on the Receiving Party’s part; (ii) was known by the Receiving Party prior to receipt; (iii) was independently developed by the Receiving Party without use of or access to the Confidential Information; (iv) was approved for public release by the Disclosing Party’s written authorization; or (v) was required to be disclosed by law, or to a competent court, government or regulatory body having the right to same, provided that the Disclosing Party is notified immediately of such required disclosure and given the opportunity to seek a protective order.
6.2 Upon termination of this License Agreement or otherwise on demand by the Disclosing Party, the Receiving Party agrees that it will promptly return the Confidential Information to the Disclosing Party, including all copies thereof or, if requested to do so by the Disclosing Party, will certify the destruction of the Confidential Information.
6.3 The Receiving Party’s obligation to protect the Confidential Information shall survive the termination of this License Agreement for a period of three (3) years. The Receiving Party’s obligation to protect any Confidential Information that contains trade secrets, including without limitation, Product formulas and calculations, shall survive the termination of this License Agreement in perpetuity.
- Payment
7.1 All Fees are payable upon receipt of invoice.
7.2 Overdue Fees will accrue interest at the lesser rate of one and one-half (1.5%) percent per month or the maximum rate permitted by law, calculated from the date upon which the invoice is due, compounded monthly.
7.3 Each party shall be responsible for any and all costs, fees, expenses, or charges incurred as a result of its receipt or remittance of any Fees under this Agreement.
7.4 All references to currency shall mean Canadian dollars ($CAD) unless otherwise indicated. All references to Fees under this Agreement are exclusive of applicable taxes.
- Term and Termination
8.1 This License Agreement shall commence on the effective date as defined in the applicable Sales Order and shall continue until terminated as set forth herein.
8.2 Either party may terminate this License Agreement at any time on written notice if the other party has breached any term or condition of this License Agreement and fails to remedy such breach within ten (10) days following notice to correct the breach. Licensee may terminate this License Agreement for convenience by providing written notice to the Licensor.
8.3 Upon termination of this License Agreement, howsoever caused, all licenses shall terminate and Licensee will have no further right to receive or use the Products and/or Services.
- General
9.1 In this License Agreement the use of a word in the singular shall imply the plural use of the word and vice-versa.
9.2 In the event that any provisions of this License Agreement shall be determined by a competent authority to be invalid, unlawful or unenforceable, such provision or provisions shall be severed from the remaining provisions which shall continue to be valid to the fullest extent permitted by law.
9.3 Any notice or other communication permitted or required in this License Agreement will be in writing and given by personal delivery via courier or transmitted by facsimile or electronic mail to the receiving party at the address noted in the applicable Sales Order or in the most recent communications between the parties. Any such notice will be deemed to have been received on the date on which it was transmitted by facsimile, electronic mail, or delivered.
9.4 Headings used in this License Agreement are inserted for convenience or reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this License Agreement.
9.5 This License Agreement, and all claims related to it or the performance by both parties under it, shall be interpreted and governed exclusively by the laws of the Province of British Columbia, Canada. Licensee irrevocably submits to the exclusive jurisdiction of the courts of Victoria, British Columbia with respect to any and all legal action and proceedings and expressly and irrevocably waives any defense of personal and/or subject matter jurisdiction in those courts or any claim on the grounds of forum non conveniens.
9.6 No term or condition of this License Agreement will be deemed amended or waived, and no breach excused, unless such amendment, waiver or consent is in writing and signed by both parties. The failure of a party to enforce at any time any of the provisions of this License Agreement, or the failure to require at any time performance by one or both of the parties of any of the provisions of this License Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter.
9.7 Licensee may not assign this License Agreement without the express written consent of the Licensor. Notwithstanding the foregoing, without securing such prior consent, Licensee shall have the right to assign this License Agreement and the obligations hereunder to any affiliate or to any successor of such party by way of merger, consolidation, reorganization or in connection with the acquisition of at least a majority of the business and assets of the Licensee, provided that: (a) the Licensee provides the Licensor with written notice when such transaction becomes public; (b) the successor or assignee agrees in writing to be bound by the obligations set forth herein and is capable of performing its duties under the License Agreement; and (c) the Licensee is not in material breach or default of this License Agreement at the time of the assignment. Licensor shall have the right to assign this License Agreement and the obligations hereunder to any affiliate or to any successor of such party by way of merger, consolidation, reorganization or in connection with the acquisition of at least a majority of the business and assets of the Licensor. This License Agreement will inure to the benefit of and be binding upon the respective successors, heirs and permitted assigns of the parties.
9.8 Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
9.9 The Agreement may be executed in any number of counterparts, each of which when delivered shall be deemed to be an original and all of which together shall constitute one and the same document. A digital, electronic or facsimile copy shall be deemed to be an original copy of the Agreement.
9.10 This License Agreement supersedes all prior licenses, agreements, arrangements, and any previous representations, negotiations, and understandings, oral or written, and sets out the entire agreement and understanding between the parties with respect to the subject matter hereof. In the event of any conflict or discrepancy between the terms and conditions of this License Agreement and any Sales Order, the parties acknowledge and agree that the terms and conditions defined in the applicable Sales Order shall prevail.