Software End User Licence Agreement

Redistribution or Rental Not Permitted

These Terms apply to the {{request.settings.SKU_NAME}} Software (the “Product”).

BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE PRODUCT THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT (“LICENSEE”) IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND LICENSEE MUST NOT INSTALL OR USE THE SOFTWARE.

1. Licence Agreement

In this Agreement “Licensor” shall mean ATX Networks Corp. except under the following circumstances: (a) if Licensee acquired the Product as a bundled component of a third party product or service, then such third party shall be Licensor; and (b) if any third party software is included as part of the default installation and no licence is presented for acceptance the first time that third party software is invoked, then the use of that third party software shall be governed by this Agreement, but the term “Licensor,” with respect to such third party software, shall mean the manufacturer of that software and not the Licensor. With the exception of the situation described in (b) above, the use of any included third party software product shall be governed by the third party’s licence agreement and not by this Agreement, whether that licence agreement is presented for acceptance the first time that the third party software is invoked, is included in a file in electronic form, or is included in the package in printed form. If more than one licence agreement was provided for the Product, and the terms vary, the order of precedence of those licence agreements is as follows; a signed license agreement, a licence agreement available for review on the Licensor website, a printed or electronic agreement that states clearly that it supersedes other agreements, a printed agreement provided with the Product, and an electronic agreement provided with the Product.

2. Licensee Grant

Licensor grants Licensee a non-exclusive and non-transferable licence to use the Product for its intended purpose. This licence does not entitle Licensee to receive from the Licensor hard-copy documentation, technical support, telephone assistance or enhancements or updates to the Product. Licensee may not redistribute the Product unless Licensee has separately entered into a distribution agreement with the Licensor.

3. Restrictions

Except as otherwise expressly permitted in this Agreement, Licensee may not: (a) modify or create any derivative works of the Product or documentation, including translation or localization; (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Product (except to the extent applicable laws specifically prohibit such restriction); (c) redistribute, encumber, sell, rent, lease, sublicense or otherwise transfer rights to the Product; (d) remove or alter any trade mark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product; or (e) publish any results of benchmark tests run on the Product to a third party without the Licensor’s prior written consent.

4. Fees

There is no licence fee for the Product. If Licensee wishes to receive the Product on media, there may be a small charge for the media and for shipping and handling. Licensee is responsible for any and all taxes.

5. Termination

Without prejudice to any other rights, Licensor may terminate this Agreement if Licensee breaches any of its terms and conditions. On termination, Licensee shall immediately discontinue any use of the Product and shall destroy all copies of the Product.

6. Proprietary Rights

All intellectual property rights in the Product shall remain with the Licensor and/or its suppliers. Licensee acknowledges such ownership of the intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with the Licensor’s or its suppliers’ ownership of intellectual property rights with respect to the Product. The Product is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Product is the property of the applicable content owner and is protected by applicable law. The licence granted under this Agreement gives Licensee no rights to such content.

7. Disclaimer of Warranty

USE OF THE PRODUCT IS AT THE SOLE RISK OF THE LICENSEE. THE PRODUCT IS PROVIDED, ON AN “AS IS” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. IN ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE PRODUCT SUFFICIENTLY MEETS ITS REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED UNDER THIS AGREEMENT EXCEPT UNDER THIS DISCLAIMER.

8. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENCE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY THE LICENSOR UNDER A SEPARATE SUPPORT AGREEMENT (IF ANY). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. THE LICENSOR IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS, IMPLIED OR STATUTORY WARRANTIES SO CERTAIN OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO LICENSEE. IN THAT EVENT SUCH WARRANTIES ARE LIMITED IN DURATION TO THE MINIMUM PERIOD REQUIRED BY LAW.

9. Export Control Provisions

Licensee agrees to comply with all export laws and restrictions and regulations of Canada, the United States or other foreign agencies or authorities, and not to export or re-export the Product or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licences and/or exemptions with respect to its own export of the Product. Neither the Product nor the underlying information or technology may be downloaded or otherwise exported or re-exported into any country subject to trade sanctions covering the Product, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions. By downloading or using the Product, Licensee agrees to the foregoing and represents and warrants that it complies with these conditions.

10. High Risk Activities

The Product is not fault-tolerant and is not designed, manufactured or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines or weapons systems, in which the failure of the Product could lead directly to death, personal injury or severe physical or environmental damage (“High Risk Activities”). Accordingly, Licensor and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities. Licensee agrees that Licensor and its suppliers will not be liable for any claims or damages arising from the use of the Product in such applications.

11. Miscellaneous

(1) This Agreement constitutes the entire agreement between the parties concerning the subject-matter hereof.

(2) This Agreement may be amended only by a writing signed by both parties.

(3) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable herein, excluding its conflict of law provisions.

(4) Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in the Province of Ontario.

(5) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

(6) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.

(7) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.

(8) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination.

(9) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of Licensee’s assets to another entity.

(10) This Agreement shall be binding on and shall enure to the benefit of the parties, and their legal representatives, heirs, executors, administrators, successors and permitted assigns.

(11) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.

(12) The relationship between Licensor and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind Licensor in any way.

(13) Unless otherwise required by applicable law neither party will bring a legal action for any claim arising out of or related to this Agreement more than two years after the cause of action arose and upon the expiration of such time limit any such claim shall lapse. If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith.

(14) If any the Licensor’s professional services are being provided, then such professional services are provided pursuant to the terms of a separate agreement between the Licensor and the Licensee. The parties acknowledge that such services are acquired independently of the Product licensed hereunder, and that provision of such services is not essential to the functionality of such Product.

(15) The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning.

(16) Licensor may use Licensee’s name in any customer reference list or in any press release issued by Licensor regarding the licensing of the Product and/or provide Licensee’s name and the names of the Product licensed by Licensee to third parties.

(17) Les parties aux présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui síy rattaché, soient redigés en langue anglaise. The parties confirm that this Agreement and all related documentation is and will be in the English language.