This End-User License Agreement is a legal agreement between you (the "End-User") and Serence Inc., a corporation incorporated under the laws of Ontario, ("Serence") with its principal place of business at 176 Gloucester Street, Suite 200, Ottawa, Ontario, K2P 0A6, Canada. By installing or otherwise using the Software, as defined in Article 1 below, you, End-User, agree to be bound by the terms of this Agreement. If you do not agree with the terms of this Agreement, promptly delete the Software or return the unused Software to Serence.
ARTICLE 1
DEFINITIONS
1.1 "Agreement" means this End-User License Agreement and all amendments made hereto by written agreement between the parties;
1.2 "Commencement Date" means the date on which the Software is installed at End-User's location;
1.3. "Confidential Information" means statistical information solely relating to End-User's use of the Software, transmitted by the Software to Serence, and does not include information personally descriptive of the End-User.
1.4 "Klip" means a task-specific agent that monitors data and runs within Software;
1.5 "Software" means (i) any of Serence's software, including Serence's KlipFolio software and related programs, installed at End-User's location including Updates, from time to time; and/or ; (ii) any Software, described in (i), when used with a single Klip, or multiple Klips, along with corresponding documentation, associated media, printed materials, and online or electronic documentation;
1.6 "Third Party Software" means the SpiderMonkey (JavaScript-C) Engine; and
1.7 "Updates" means a bug fix, patch, error correction and/or other minor enhancement to the Software;
ARTICLE 2
RIGHTS AND RESTRICTIONS
2.1 Subject to the terms and conditions of this Agreement, End-User is hereby granted a non-exclusive, non-transferable license to use the Software solely for End-User's own internal operations. End-User may not re-license, sell, assign or otherwise transfer the Software. End-User covenants and agrees that the Software will only be used in accordance with the provisions of this Agreement.
2.2 End-User shall have no right to change, alter, copy, amend, reverse engineer, decompile, disassemble, publish, disclose, display or make available, in whole or in part, or otherwise use the Software in any manner whatsoever.
2.3 Serence or its licensors shall retain all right, title, copyright, trade secrets, patents, trade-marks and other proprietary and intellectual property rights in the Software. End-User does not acquire any rights, express or implied, in the Software, other than those specified in the Agreement. End-User shall not remove any proprietary, copyright, patent, trademark, design right, trade secret or any other proprietary rights legends from the Software.
2.4 End-User shall not modify resell for profit, distribute, or create derivative works based upon the Software or any part thereof.
2.5 Third Party Software may be embedded in or delivered with the Software licensed under this Agreement. End-User shall be limited to use of the Software licensed under this Agreement. End-User's right to use any Third Party Software shall be limited to the use necessary to implement the Software licensed. End-User shall have no right to use such Third Party Software other than as necessary for the licensed ordinary use of the Software and grants Serence's licensors the right to protect their interests under this Agreement and agrees that such licensors have the benefit of the provisions of this Agreement.
2.6 End-User will take appropriate steps, both before installation and at all times thereafter, to copy and protect End-User's own data and programs that may be lost, harmed or destroyed and to protect End-User's equipment from any damage. End-User, and End-User alone, will be responsible for reconstruction, replacement, repair or recreation of lost programs, data or equipment in the event of hardware, software or Software failure. Serence shall, under no circumstances, be responsible for any such losses or damages.
ARTICLE 3
DISCLAIMER OF WARRANTIES AND TECHNICAL SUPPORT
3.1 End-User hereby expressly agrees and acknowledges that, except as provided in this Agreement, the Software is provided "AS IS", without any technical support, and Serence makes no representations or warranties or covenants, express or implied, in respect of the Software including without limitation, statutory or implied warranties or conditions of merchantability, satisfactory quality or fitness for a particular purpose, all of which are expressly disclaimed and excluded.
3.2 Serence does not warrant, guarantee or represent to End-User that the Software will meet End-User's requirements, that the installation and operation of the Software will be uninterrupted or error free or that any Software defects will be corrected.
ARTICLE 4
LIMITATION OF DAMAGES
4.1 NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL SERENCE (OR ITS EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS) BE LIABLE TO END-USER, OR ANY THIRD PARTY CLAIMING THROUGH END-USER, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQENTIAL DAMAGES, HOWSOEVER CAUSED (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, INCREASED COSTS OF OPERATION, LITIGATION COSTS AND THE LIKE), WHETHER BASED UPON A CLAIM OR ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF THE SOFTWARE, REGARDLESS OF WHETHER SERENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE 5
TERM AND TERMINATION
5.1 Without prejudice to any other rights, Serence may terminate this Agreement if End-User fails to comply with any term or condition of this Agreement.
5.2 Upon termination of this Agreement, End-User shall: (a) cease using the Software; and (b) certify to Serence within thirty (30) days after termination that End-User has destroyed or has returned the Software to Serence.
ARTICLE 6
U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND
SOFTWARE distributed to or on behalf of the United States of America, its agencies or instrumentalities ("U.S. Government") is provided with RESTRICTED RIGHTS. Use, duplication or disclosure of Software by the U.S. Government is subject to the restrictions in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraphs (c) (1) and (2) of the Commercial Computer Software - Restricted Rights at 48CFR52.227-19, as amended or applicable, or such other applicable rules and regulations.
ARTICLE 7
GENERAL
7.1 Confidentiality. Solely for purposes of improving the Software and Klips, Serence may disclose Confidential Information to third parties.
7.2 Governing Law. This Agreement shall be governed by, interpreted and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, other than rules governing conflicts of laws. The parties irrevocably attorn to the jurisdiction of the courts of the Province of Ontario. The parties expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods and any legislation implementing such Convention shall not apply to this Agreement nor to any dispute arising therefrom.
7.3 Relationship of Parties. The parties are not agents or legal representatives of each other. The parties to this Agreement are independent contractors. No relationship of principal to agent, master to servant, employer to employee or franchisor to franchisee is established hereby between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.
7.4 Survival. The provision in this Section 7.4 along with the provisions in Sections 2.3, 2.5, 2.6, 3, 4, 5.2 and 7.1 shall survive termination of this AGREEMENT.
7.5 Entire Agreement. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations or warranties, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorised representative of each party; no other act, document, usage or custom shall be deemed to modify this Agreement.
7.6 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable laws, such provisions shall be modified to the minimum extent necessary to comply with applicable law and the intent of the parties.
7.7 Notice. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by first class mail or personal delivery (including overnight mail by private carrier) to the address first above written (which address may be altered upon written notice to End-User).
7.8 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for breach of Serence's proprietary rights in the Software, no action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the cause of action has arisen.
7.9 Export Administration. To the extent applicable to End-User, End-User agrees to comply fully with all relevant export laws and regulations of Canada and the United States ("Export Laws") to ensure that neither the Software nor any direct product thereof is: (a) exported, directly or indirectly, in violation of Export Laws; or (b) is intended to be used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical or biological weapons proliferation.
7.10 Language. The parties have requested that this AGREEMENT be drafted in English. Les parties aux prΘsentes ont exigΘ que le prΘsent contrat soit rΘdigΘ en langue anglaise.
