This ALPHINAT End-User License Agreement (“EULA” or “Agreement”) is a legal agreement between the LICENSEE and ALPHINAT for the license of ALPHINAT’s SmartGuide® software or any subsequent Order Form including Improvements, Updates and New Versions (“SOFTWARE”).
PLEASE READ CAREFULLY BEFORE OPENING THE ALPHINAT SOFTWARE PRODUCT
This ALPHINAT End-User License Agreement (“EULA”) is a legal agreement between the LICENSEE and ALPHINAT for ALPHINAT’s SmartGuide® SOFTWARE(s) identified above, which includes the User Guide, any associated SOFTWARE components, any media, any printed material other than the User Guide, and any “online” or electronic documentation (“SOFTWARE”). By installing, copying, or otherwise using the SOFTWARE, you, the LICENSEE, agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install or use the SOFTWARE.
ALPHINAT owns all intellectual property rights, including copyright, in the SOFTWARE and Documentation, or has secured from any third party holding Intellectual Property Rights in the SOFTWARE or Documentation those rights necessary to grant the licenses granted herein;
The LICENSEE agrees and confirms that this Agreement is entered into by both parties for good and valuable consideration.
The LICENSEE wishes to obtain a license to use the SOFTWARE and Documentation, on the terms and conditions hereof.THE PARTIES AGREE AS FOLLOWS:
- DEFINITIONS
For the purposes hereof, the words or expressions mean:
1.1 “Improvement (s)”: a new version of the SOFTWARE, in object code format only, in which ALPHINAT has incorporated improvements or changes to existing features or the SOFTWARE components or added new functions in the components of the SOFTWARE or result of new developments in the SOFTWARE by ALPHINAT;
1.2 “Documentation”: user manuals or other documents related to the SOFTWARE, that aim to describe the SOFTWARE and provide the information needed to ensure its proper and safe operation excluding, however, any document relating to the source code of the SOFTWARE;
1.3 “Intellectual Property Rights”: patents, trademarks, products, services, industrial designs, topographies of semiconductors, copyrights, logos, including, without limiting the generality of the foregoing applications for registration of such rights, confidential information, business and trade names and, without limitation, all other rights of a similar nature or intangible, whether or not eligible for registration;
1.4 “Update”: a new Publication of the SOFTWARE, in object code format only, which includes problem corrections or minor modifications to existing features of the SOFTWARE component modules that have been made in order to make the SOFTWARE behave in accordance with the Documentation;
1.5 “New Version”: any subsequent Publication of the SOFTWARE, in object code format only, made available to ALPHINAT customers on the market in general, in which ALPHINAT incorporated significant changes or modifications to the modules of the SOFTWARE, or any other change in the programming language of the SOFTWARE;
1.6 “Derivative Product (s)”: a product resulting from the SOFTWARE (including enhancements, Updates and upgrades, if any), such a revision, modification, translation, consolidation, an extract, an expansion or some shape or form in which the SOFTWARE can be incorporated, transformed or adapted and which constitutes an infringement of ALPHINAT copyright if done without authorization;
1.7 “Order Form” means the document in hard copy or electronic form by which LICENSEE orders SOFTWARE licenses and services, which Order Form shall reference this Agreement;
1.8 “Publication (s)”: all numbered and labelled copies of the SOFTWARE, in object code format only, including any copy of an improvement, an Upgrade or a new version, made available to ALPHINAT customers in the market in general;
1.9 “Documentation”: user manuals or other documents related to the SOFTWARE, that aim to describe the SOFTWARE and provide the information needed to ensure its proper and safe operation excluding, however, any document relating to the source code of the SOFTWARE;
1.10 “Authorization for Use”: the extent of permitted use of the SOFTWARE in an Authorization of Use. An Authorization for Use, together with the invoice or receipt, is evidence of the authorized use by LICENSEE;
1.11 “Parameters”: a number of criteria for use by LICENSEE of the SOFTWARE to determine the price of the license and terms of use the SOFTWARE as described in the Authorization for Use and any written amendment, if applicable;
1.12 “Designated System”: all software and hardware elements that make up the environment on which the SOFTWARE operates as described in the Authorization for Use and any written agreement, if any.
2. NON-EXCLUSIVE LICENSE
2.1 Subject to the terms and conditions contained herein, ALPHINAT grants to the LICENSEE a personal, non-exclusive, non-transferable license conferring the right to use the SOFTWARE for internal use only, on the Designated System according to the Parameters described in the Authorization for Use, in object code format only, and Documentation, specifically excluding the right to resell, copy for purposes other than backup, decompile, create derivative works, integrate, install and configure the SOFTWARE for the benefit of third parties. For greater clarity, references herein to “internal use”, “internal business purposes other than backup, decompile, create derivative works, integrate, install and configure the SOFTWARE for “business operations” or any similar expression, include use of the SOFTWARE in the ordinary course of Licensee’s business, which use, for greater certainty, may be by and for the benefit of third parties. Licensee may make a reasonable number of copies of the SOFTWARE for testing, production, redundancy, archival and disaster recovery purposes and may make reasonable copies of the Documentation.
2.2 Without limiting the generality of the foregoing, LICENSEE shall not:
2.2.1 Copy (except as provided herein), adapt, modify, or develop derivative products (except as expressly contemplated through the use of a Developer License or as otherwise authorized by ALPHINAT) of the SOFTWARE and Documentation;
2.2.2 Access the source code of the SOFTWARE in any manner whatsoever, perform reverse engineering, re-assemble, decompile, recompile or translate in any way the SOFTWARE or any part thereof;
2.2.3 Remove or export any SOFTWARE in violation of applicable laws or regulations;
2.2.4 Except as permitted under this Agreement, relicense, share or lend the SOFTWARE to any third party, or use the SOFTWARE for timesharing or service bureau purposes;
2.2.5 Commercialize or market the SOFTWARE, the Documentation or any Derivative Product in any manner whatsoever.
2.3 The SOFTWARE can be used by the LICENSEE on the Designated System only. If LICENSEE wishes to use the SOFTWARE on another system or other technical environment, it must first notify ALPHINAT in writing. Such notice shall describe the system or the type of technical environment in which LICENSEE wishes to transfer the SOFTWARE while indicating the number of parameters of the new system. LICENSEE acknowledges that it must pay additional charges or additional license fees if such transfer requires an increase in authorized Parameters. When transferring the SOFTWARE on the new system, the description of the designated system will be amended to include the components of the new system.
2.4 The LICENSEE may allow third parties to use the SOFTWARE on behalf of the LICENSEE, provided that:
2.4.1 The use is only for the business operations of the LICENSEE;
2.4.2 Such use does not result in an increase in authorized Parameters;
2.4.3 LICENSEE sends ALPHINAT a prior written notice;
2.4.4 LICENSEE shall ensure that such third parties abide the use restrictions set out in this Agreement and are subject to obligations of confidentiality consistent with those set out in Article 9;
2.4.5 LICENSEE is responsible for all acts or omissions of such third parties concerning this Agreement and shall promptly inform ALPHINAT of any violation it becomes aware of and will cooperate with ALPHINAT, to obtain a cessation of the violation and to limit any damages.
2.5 The terms of this Agreement shall be considered automatically included in every order, every invoice or every similar document issued by either party in connection with this Agreement.
2.6 The LICENSEE expressly acknowledges that ALPHINAT retains all rights regarding intellectual property, marketing and sale of the SOFTWARE, directly or indirectly, through resellers, agents, distributors or otherwise, in its sole discretion, in any market whatsoever.
3. DELIVERY of the SOFTWARE
3.1 Any copy of the SOFTWARE will be provided by ALPHINAT in object code format only;
3.2 LICENSEE is responsible for ensuring that ALPHINAT is provided with the following information for Cloud deployments the service provider and full legal holder account information, for each physical or virtual machine on which the SOFTWARE will be installed in order to allow ALPHINAT to generate the license files:
- Make and model
- Processor (Ex: Pentium Dual-Core E2180 processor, 2.0 GHz, 800MHz FSB);
- RAM (Random Access Memory configuration)
- Operating System
- Application server
- Database Management System
- Virtualization system if applicable
- MAC ID (Media Access Control)
- Domain name and/or IP address from which the SOFTWARE will be accessible
- Description of use of the licensed SOFTWARE
During the Term ALPHINAT shall make a download site available from which LICENSEE can download the SOFTWARE. When an Update or New Version of the SOFTWARE is made available on the download site, Alphinat will inform LICENSEE without delay. A description of modifications, corrections or enhancements shall accompany each Update or New Version.
ALPHINAT will make the SOFTWARE and Documentation available for electronic download within one business day from the Effective Date of the applicable Order Form, or upon receipt of a notification from Licensee or its third party service provider regarding any additional MAC ID(s). The SOFTWARE and Documentation shall be deemed delivered when at the moment of delivery of the SOFTWARE and Documentation to the site of the LICENSEE or when LICENSEE has downloaded the SOFTWARE and Documentation, at the time chosen by the parties (the “Delivery”).
4. REPRESENTATIONS AND WARRANTIES
4.1 ALPHINAT represents and warrants that: (a) it is the sole owner of all Intellectual Property Rights in the SOFTWARE(including any improvement, interface, Update and New Version), at the exclusion of portions of the SOFTWARE for which ALPHINAT holds licenses from third parties, if any; (b) it has the full right, power and authority to enter into and perform its obligations under this Agreement, including granting the licenses granted herein; and (iii) that it is unaware of any claim or potential claim brought against its Intellectual Property Rights.
4.2 Unless otherwise specified in an Order Form, ALPHINAT warrants to LICENSEE, for ninety (90) days from the date of Delivery (the “Warranty Period”), that the SOFTWARE will conform to and perform substantially in accordance with the Documentation. Licensee acknowledges that there may be minor variants in operational behaviour compared to what is stated in the Documentation. During the Warranty Period, ALPHINAT shall perform, at no additional charge, all of the maintenance and support services described in the Software Maintenance and Support Provisions Exhibit, including providing LICENSEE with any Improvements and Updates to the SOFTWARE.
4.3 ALPHINAT represents and warrants that the Maintenance and Support Services will be performed in a manor that is consistent with generally accepted industry standards.
4.4 ALPHINAT represents and warrants that the SOFTWARE does not contain any “virus,” “back door,” “time bomb,” “Trojan Horse,” “worm,” “limiting device,” “drop dead device,” or other computer software code or routines designed to modify, erase, destroy, corrupt, disable, damage, or impair the effective operation of such SOFTWARE, or any information or data contained therein, or LICENSEE’s information systems.
5. INDEMNITIES
5.1 ALPHINAT agrees to indemnify, defend and protect Licensee (and its directors, officers, agents, and employees) against all losses, claims, expenses, costs or damages (including attorneys’ fees and experts) relating to or arising from any claim, suit or action made or brought against such person in connection with any allegation of infringement, violation or misappropriation of Intellectual Property Rights of any third party enforceable in Canada.
5.2 LICENSEE agrees to indemnify, defend and protect ALPHINAT against all losses, claims, expenses, costs or damages (including attorneys’ fees and experts) relating to or arising from a claim, suit or action made or brought against ALPHINAT resulting directly from LICENSEE’s changes, adaptations or additions to the SOFTWARE which have not been mandated by ALPHINAT.
5.3 The indemnifying party will indemnify the indemnified party the amount of damage that could be awarded by a court of last instance and any other expense, provided however that as an express condition to the indemnity obligations set out in this Article 5, the party seeking indemnity shall:
5.3.1 Promptly inform the indemnifying party in writing of any claim;
5.3.2 Permit the indemnifying party to assume sole control over the defence and all negotiations for a settlement or compromise of the claim;
5.3.3 Provide the indemnifying party with reasonable cooperation in connection with the defence of the claim, including the provision of available information relevant to the claim;
5.3.4 Make no admission or settlement without the prior written consent of the indemnifying party.
5.4 ALPHINAT will have no obligation under this Article 5 to the extent that a claim arises from:
5.4.1 Using the SOFTWARE or part of it with equipment or software not recommended nor provided by ALPHINAT; or
5.4.2 LICENSEE failing to comply with the technical specifications of the SOFTWARE or with the terms of Agreement; or
5.4.3 Changes, adaptations or additions to the SOFTWARE or part thereof made by the LICENSEE or by a third party unless the third party and/or changes, adaptations or additions to the SOFTWARE is mandated by ALPHINAT.
6. MAINTENANCE AND SUPPORT
6.1 In consideration of the payment of the applicable maintenance and support fee, if any, ALPHINAT will provide maintenance and support services to LICENSEE as described in the Software Maintenance and Support Provisions Exhibit. The first year of maintenance commences after the Warranty Period and continues until August 31, 2016 (“Initial Maintenance Term”) with Maintenance Fees being pro-rated to reflect a coverage period of less than one year. Thereafter, Maintenance shall be automatically renewed for a full calendar year on the same terms and conditions (a “Renewal Maintenance Term”) subject to termination as herein provided, unless LICENSEE provides written notice to ALPHINAT not less than sixty (60) days prior to the expiration of the then-current renewal term. The Initial Maintenance Term and the Renewal Maintenance Term, if any, shall be collectively referred to as the Maintenance Term. Professional services relating to implementation of the SOFTWARE are not provided as part of Maintenance and Support Services and will be governed (if at all) by a separate Consulting Services Agreement between the parties.
6.2 If LICENSEE does not subscribe to the Maintenance and Support Agreement before the end of the Warranty Period and requests to subscribe thereafter ALPHINAT reserves the right to refuse such application or charge the costs of maintenance and support for the period covering the end of the Warranty Period and the date of entry into force of the Support Agreement.
7. FEES
7.1 Licensee shall pay ALPHINAT all license fees (“License Fees”) and maintenance and support fees (“Maintenance Fees”) set forth in the applicable Order Form. Maintenance Fees in respect of any Maintenance Renewal Term shall be billed up to 30 days prior to the commencement of such Renewal Maintenance Term. ALPHINAT agrees that the annual Maintenance Fees set out in the applicable Order Form.
7.2 Unless, otherwise set forth in the applicable Order, LICENSEE shall pay all amounts properly invoiced within thirty (30) days of receipt of invoice by LICENSEE.
7.3 The fees listed in this Agreement do not include taxes. If ALPHINAT is required to pay sales taxes, use taxes, property taxes, value-added taxes or other taxes based on the licenses or Maintenance and Support Services provided under this Agreement or on LICENSEE’s use of the SOFTWARE or receipt of Maintenance and Support services, then such taxes shall be invoiced to and paid by LICENSEE. This Section shall not apply to taxes based on ALPHINAT’s income.
7.4 If LICENSEE fails to pay license fees as defined above, ALPHINAT may, at its sole discretion and in addition to any other right owned by ALPHINAT in accordance to the Agreement or by law, suspend or terminate this Agreement by way of simple written notice.
8. LIMITATION OF LIABILITY
8.1 In no event shall either party or its executives, officers, directors, employees, agents and subcontractors be liable for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by the other party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages.
8.2 Save and except with respect to the parties indemnity obligations pursuant to Article 5 and confidentiality and privacy obligations pursuant to Article 9, in no case will either party’s liability under this agreement for any single claim or all claims in the aggregate exceed the amounts paid or payable by LICENSEE to ALPHINAT as fees under this Agreement.
8.3 Notwithstanding the provisions above, LICENSEE agrees to indemnify, defend and protect ALPHINAT against all losses, claims, expenses, costs or damages (including attorneys’ fees and experts) relating to or arising from the addition to the SOFTWARE by the LICENSEE of any software, interface or other addition.
9. CONFIDENTIALINFORMATION AND PRIVACY
9.1 Each party may be provided or given access to information, whether in written, machine readable or other tangible form, or disclosed orally, that is confidential to the other party, including the terms and conditions of this Agreement, and all documents, information and data relating to its business, finances, technology, software, systems, affairs, clients, customers, suppliers and service providers, which is clearly identified as confidential at the time of disclosure or which the receiving party should have reasonably understood to be confidential (“Confidential Information”). Confidential Information may include information provided to or accessed by the receiving party before the date of this Agreement. LICENSEE’s Confidential Information includes Personal Information. The LICENSEE acknowledges that the SOFTWARE and Documentation contain confidential information belonging to ALPHINAT or its beneficiaries. Each party agrees not to make the other party’s Confidential available in any form to any third party (other than consultants, agents and advisors who have a need to know and are subject to appropriate non-disclosure obligations) or otherwise use or reproduce such Confidential Information for any purpose other than for the exercise of rights or the performance of obligations under this Agreement. Each party agrees to take the same degree of care to prevent publication, unauthorized access to or use of, or disclosure of, the other party’s Confidential Information as it would with its own Confidential Information, and in any event, no less than reasonable care. Upon a party’s request return or destroy all Confidential Information, including copies existing in any format, to the requesting party, or, where the Confidential Information is in an electronic format, delete such information in such manner that the information cannot be recovered and, where appropriate, provide the requesting party with a written confirmation of a senior officer that all Confidential Information in its possession has been destroyed. The parties agree to hold each other’s Confidential Information in confidence during the Term and five years thereafter, except for Personal Information, which is to be held in confidence during the Term and perpetually thereafter. The parties do not anticipate sharing Personal Information hereunder;
9.2 ALPHINAT acknowledges that LICENSEE is bound by the provisions of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31, as amended (“FIPPA”). ALPHINAT shall respect the letter and spirit of FIPPA, including fulfilling those obligations set out below. ALPHINAT shall (a) maintain, and where necessary, implement the necessary security mechanisms and procedures to ensure against the direct or indirect unauthorized access, use, disclosure, alteration, loss or destruction of any Personal Information provided by LICENSEE or otherwise obtained by ALPHINAT; and (b) at LICENSEE’s request, co-operate with the fulfillment of LICENSEE’s disclosure duties under FIPPA; and (c) promptly report to the LICENSEE any actual or suspected improper access, use, disclosure, alteration, loss, or destruction of Private Information. For the purpose of this Agreement, “Personal Information” has the same definition as in subsection 2(1) of FIPPA, and includes without limitation, an individual’s name, address, age, date of birth, sex, and religion, whether recorded in printed form, on film, by electronic means or otherwise. In the event of any conflict between provisions relating to Personal Information and the balance of this Agreement, the provisions relating to Personal Information shall prevail. For greater certainty, SmartGuide does not inherently store third party data, the LICENSEE must create its own connectors to extension functions or web services to be able to do so in separate databases or systems created or used by the LICENSEE or a third party mandated to do so;
9.3 Permitted Disclosure. A party shall not be obligated under Section 9.1 with respect to information that: (i) is or has become readily publicly available without restriction through no fault of such party or its personnel, (ii) is received, without restriction, from a third party lawfully in possession of such information and lawfully empowered to disclose such information (and can be demonstrated as such by documentation), (iii) was rightfully in such party’s possession without restriction prior to its disclosure by the other party (and can be demonstrated as such by documentation), (iv) was independently developed without use of the Confidential Information (and can be demonstrated as such by documentation); (v) is generally available to the public other than by breach of a third party’s confidentiality obligation owing to the disclosing party or the receiving party’s breach of this Agreement; (vi) the disclosing party agrees in writing is free of such restrictions; or (vii) is required to be disclosed by the receiving pursuant to an order of a court or administrative body of competent jurisdiction, or as required by law, such as pursuant to a request made under FIPPA.
10. TERM AND TERMINATION
10.1 This Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated as set forth below (“Term”). Each Order Form will have its own term as specified therein. Subject to the provisions of this Agreement, the licenses granted under this Agreement shall remain in force until the LICENSEE elects to discontinue its use of the SOFTWARE on a permanent basis and notifies ALPHINAT in writing to that effect.
10.2 This Agreement, or an Order Form made hereunder, may be terminated: (i) by either party upon thirty (30) days written notice if the other party shall be in breach or default of any material provision of this Agreement, unless such breach is cured before the end of such thirty (30) day period; (ii) by Licensee for any violation of Licensee’s Confidential Information or Personal Information, (iii) by Licensee for convenience by providing thirty (30) days notice to ALPHINAT. DUE TO THE DEVASTATING IMPACT ANY TERMINATION OF THIS AGREEMENT WOULD HAVE ON LICENSEE’S BUSINESS, ALPHINAT ACKNOWLEDGES THAT LICENSEE WOULD NOT BE WILLING TO ENTER INTO THIS AGREEMENT WITHOUT ASSURANCE THAT ALPHINAT WILL NOT TERMINATE THIS AGREEMENT IF LICENSEE’S BREACH OR DEFAULT OF ANY MATERIAL PROVISION OF THIS AGREEMENT IS DISPUTED BY LICENSEE IN GOOD FAITH. IN THIS CASE THE PARTIES WILL FOLLOW THE DISPUTE RESOLUTION PROCESS SET IN SECTION 13.7.
10.3 Upon termination by ALPHINAT or LICENSEE of an Order Form, all rights and licenses granted to LICENSEE under the affected Order Form(s) shall immediately terminate and LICENSEE agrees to immediately delete all copies of such SOFTWARE from all computer systems on which it was installed, to remit to ALPHINAT any physical copy of such SOFTWARE along with any other confidential information, and to immediately pay ALPHINAT for all fees that remain due. For greater clarity, and notwithstanding anything to the contrary, LICENSEE is under no obligation to return or destroy copies of SOFTWARE which forms part of the server back-up or archival copies, provided that it does not continue to use such SOFTWARE as is contained in such server back-up and archival copies.
10.4 LICENSEE may terminate the maintenance provided hereunder at any time but will not be entitled to reimbursement for any monies paid, unless LICENSEE has terminated for cause, in which case LICENSEE shall be entitled to a pro-rated refund of the Maintenance Fees.
10.5 The rights and obligations set out in Article 5 (Indemnity), Article 8 (Limitation of Liability), Article 9 (Confidential Information and Privacy), Articles 10 (Term and Termination), Article 13 (General) and all other rights and obligations which by their nature extend beyond the termination of this Agreement, shall survive the earlier termination or expiration of this Agreement and shall remain in force and effect after the termination hereof, until such time as the parties may mutually agree to the release of the obligations contained therein.
11. COMPLIANCE WITH LICENSES
11.1 ALPHINAT may, at its own expense and within the limit of once every twelve (12) months, appoint an independent third party or one of its internal auditors to audit the use and number of copies and installations of the SOFTWARE conducted by the LICENSEE. Such an audit will not interfere with LICENSEE’s normal business operations and may only be conducted during normal business hours of LICENSEE by giving seven (7) working days notice. ALPHINAT’s personnel shall be escorted at all times with access to LICENSEE’s records and other information being subject to LICENSEE’s policies and procedures. If the audit determines that the LICENSEE is using the SOFTWARE in a manner that is not permitted under this Agreement and which would require the payment of additional license fees, LICENSEE shall pay the applicable fees for such rights of use or additional copies within thirty (30) days from the date of the invoice (and if LICENSEE knew or reasonably ought to have known about the non-compliance, the charges will being equal to twice the local rate of the SOFTWARE licenses in force at the time of the discovery of non-compliance with licenses). If additional charges exceed five-percent (5%) of the amount of fees indicated under this Agreement, LICENSEE shall pay all costs reasonably incurred by ALPHINAT for conducting the audit.
12. ESCROW
12.1 Upon LICENSEE’s written request and payment of the applicable beneficiary fees, ALPHINAT will add LICENSEE as a beneficiary to its SOFTWARE source code escrow with Me Éric FRANCHI, BARRISTER & SOLICITOR, L.L. B., L.L. M., D.E.A., Ph. D., (the “Escrow Agent”). ALPHINAT shall provide LICENSEE with an acknowledgement from the Escrow Agent recognizing that the LICENSEE is a beneficiary of the Escrow Agreement, and confirming the Release Events. If the Escrow Agent, or any replacement escrow agent, is discharged or resigns, ALPHINAT shall promptly provide to LICENSEE the name and address of the replacement Escrow Agent together with an acknowledgement from such Escrow Agent recognizing that LICENSEE is beneficiary of the Escrow Agreement, and confirming the Release Events. LICENSEE shall have the right to receive a copy of the documented source code for the SOFTWARE solely for its internal use provided each beneficiary is fully paid up at the time of an event upon the occurrence of one or more of the following events (each a “Release Event”) and provided that LICENSEE is not in breach of the Agreement or LICENSEE has not filed or had filed against it a petition in bankruptcy or had a receiver appointed: (a) ALPHINAT ceases doing business or is finally adjudicated as bankrupt (not including reorganizations under Chapter 11 or any similar successor provision); (b) ALPHINAT fails in a material manner to provide support or maintenance for the SOFTWARE required by the Agreement and such material failure continues unabated for more than thirty (30) days after written notice from LICENSEE. The source code shall be deemed to be Confidential Information of ALPHINAT. Release of the source code to LICENSEE upon the occurrence of any of these Release Events will not in any way diminish LICENSEE’S obligations hereunder with respect to Confidential Information or LICENSEE obligations to pay any fees that are owing on their regular due dates. ALPHINAT shall be responsible for all costs associated with the source code escrow account.
13. GENERAL
13.1 Assignment. Neither this Agreement nor any rights, licenses or obligations hereunder, may be assigned by Licensee without the prior written consent of ALPHINAT, provided such approval shall not be unreasonably withheld or delayed. ALPHINAT may assign this Agreement upon the sale of all or substantially all its assets, merger or reorganization. Any attempted assignment in violation of this Agreement shall be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the parties’ successors and assigns.
13.2 Severability. If any provision of this Agreement is held invalid or void by a competent court, it will be removed but the other provisions shall remain in full force.
13.3 Waiver. The fact that a party does not require strict enforcement of the terms and conditions of a commitment under the Agreement or does not exercise its rights shall not be deemed a waiver of such right in the future or a waiver of the full fulfillment of this commitment. Unless expressly stated otherwise, a waiver of a party to any of its rights is valid only if in writing and only with respect to the rights and circumstances specifically covered by the waiver.
13.4 Notices. Unless expressly stated otherwise, any demand, notice, consent, authorization or other communication required or permitted to be given in connection with this Agreement must be given in writing and will be given by personal delivery or sent by prepaid registered mail or by facsimile, in each case addressed to the recipient as follows:
To LICENSEE:
With a copy to:
To ALPHINAT:
ALPHINAT Inc.
Attn: Chief Executive Officer
2000 Peel Street, Suite 680
Montreal, Quebec, H3A 2W5
Phone: (514) 398-9799, extension 225
Fax: (514) 398-9353
or to such other address, individual or facsimile number as may be designated by notice given by either Party to the other Party in the same manner. Any demand, notice, consent, authorization or other communication given by personal delivery will be conclusively deemed to have been given on the day of actual delivery thereof or, if given by registered mail, on the 10th Business Day following the deposit thereof in the mail, or if given by facsimile, on the day of transmittal thereof if given during the normal business hours of the recipient and on the Business Day during which such normal business hours next occur if not given during such hours on any day.
13.5 Entire Agreement. This Agreement together with it Exhibits and all Order Forms, constitutes the entire agreement between the parties with respect to transactions covered and supersedes any oral or written agreement and any previous agreement between the parties, including trial or evaluation license with respect to the SOFTWARE. Any changes, amendments or additions will have no effect unless it is evidenced in a writing and signed by the parties. No terms contained in a LICENSEE purchase order or similar document, or a ALPHINAT EULA, click-through, additional terms of use, or similar, will be binding on ALPHINAT or LICENSEE (as the case may be) unless both parties execute the same as an addendum to this Agreement. If there is any conflict or inconsistency between the provisions set forth in the main body of this Agreement and the provisions set forth in an Exhibit, the provisions set forth in the main body of this Agreement shall prevail. If there is any conflict or inconsistency between the provisions set forth in this Agreement or an Exhibit and the provisions set forth in an Order Form, the provisions set forth in the main body or Exhibit shall prevail, provided, however, that to the extent a subsequent Order Form specifically sets forth inconsistent terms, and the Order Form expressly identifies the relevant Sections and/or provisions of the main body of the Agreement and/or Exhibit that are inconsistent, then such inconsistent terms contained in the Order Form shall prevail over the terms contained in the main body of the Agreement or Exhibit, as the case may be, but only with respect to the SOFTWARE set out in such Order Form.
13.6 Governing Law. This Agreement shall be governed by and construed under the laws of the Province of Ontario (and the federal laws of Canada applicable therein), without regard to its choice of law principles. Each party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Ontario and all courts competent to hear appeals therefrom. Each party expressly waives any right it may have to a trial by jury in any formal proceeding arising hereunder. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys’ fees from the non-prevailing party. The parties specifically exclude the United Nations Convention on Contracts for the International Sale of Goods.
13.7 Dispute Resolution. In the event a dispute relating to this Agreement arises between the parties, face to face negotiations shall be conducted by authorized representatives of the parties. If such representatives are unable to resolve the dispute within five business (5) days after the initial request for negotiations, then negotiations shall be conducted by Vice Presidents of each party. If this second pair of representatives are unable to resolve the dispute within five (5) business days, then the parties shall be entitled to discontinue negotiations and seek any and all rights and remedies that may be available to them as provided in this Agreement. Notwithstanding the foregoing, dispute resolution shall not be required for any claim relating to confidentiality or intellectual property matters.
13.8 Publicity. ALPHINAT shall not, without the prior written approval of LICENSEE, (1) use LICENSEE’s name or logo; or (2) issue any press release or make any other representations to a third party regarding its dealings with LICENSEE or the existence or terms of this Agreement. Notwithstanding the foregoing, LICENSEE acknowledges that ALPHINAT may have a requirement to issue a press release on a no-name basis and LICENSEE agrees that ALPHINAT may do so.
13.9 Relationship of the Parties. The parties expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labour costs and expenses arising in connection therewith. Neither party nor its agents or employees are the representatives of the other party for any purpose and neither party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.
13.10 Force Majeure. Neither party shall be liable for any default or delay in the performance of its obligations hereunder: (a) if and to the extent such default or delay is caused, directly or indirectly, by any cause beyond the reasonable control of such party; and (b) provided such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non-performing party through the use of reasonable alternative sources, work-around plans or other means, (individually, each being a “Force Majeure Event”). In the case of a Force Majeure Event, the non-performing party will be excused from any further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such party continues to use reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. Any party so delayed in its performance will immediately notify the other by telephone (to be confirmed in writing within one (1) business day of the inception of such delay) and describe at a reasonable level of detail the circumstances causing such delay and the anticipated period of delay or non-performance.
13.11 Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original, and which together shall constitute one and the same instrument.
13.12 Compliance with Law. LICENSEE and ALPHINAT each agree that it shall comply with all applicable laws, rules and regulations.