Quanser Software License Agreement

THIS SOFTWARE LICENSE AGREEMENT APPLIES TO THE QUARC SOFTWARE LICENSED BY QUANSER CONSULTING INC. (“QUANSER”) TO YOU AS SET OUT IN THE ORDER CONFIRMATION ISSUED TO YOU BY QUANSER OR BY A QUANSER AUTHORIZED RESELLER (“ORDER CONFIRMATION”). THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND QUANSER. THE SOFTWARE PRODUCT INCLUDES COMPUTER SOFTWARE, THE ASSOCIATED MEDIA, ANY PRINTED MATERIALS, AND ANY "ONLINE" OR ELECTRONIC DOCUMENTATION. BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, QUANSER IS UNWILLING TO LICENSE THE SOFTWARE PRODUCT TO YOU. IN SUCH EVENT, YOU MAY NOT USE OR COPY THE SOFTWARE PRODUCT, AND YOU SHOULD PROMPTLY CONTACT QUANSER FOR INSTRUCTIONS ON RETURN OF THE UNUSED SOFTWARE PRODUCT(S) FOR A REFUND. ALL RETURNS SHALL BE SUBJECT TO QUANSER'S THEN CURRENT RETURN POLICY.

1. Grant of License. In consideration of, and conditioned upon, your payment of the applicable fees to QUANSER or an authorized reseller of QUANSER, QUANSER hereby grants you a limited, non-exclusive, non-transferable (except as set forth herein) right to use (in accordance with one of the license types listed below) the specific SOFTWARE PRODUCT, as such SOFTWARE PRODUCT and license type are identified in the applicable Order Confirmation, but only pursuant and subject at all times to the terms and conditions of this Agreement. The SOFTWARE PRODUCT is in "use" when loaded into temporary memory (i.e., RAM) or installed into permanent memory (e.g., hard disk, CD-ROM, DVD-ROM, network storage device, or other storage device). The specific use rights granted to you are as follows and depend upon the type of license you have acquired:
   1. Single User License. You may install and use one copy of the SOFTWARE PRODUCT on a single computer. While all of the SOFTWARE PRODUCT must be installed and used on the same computer, there is no limitation on the number of your employees that may access and use the SOFTWARE PRODUCT on such computer provided that the SOFTWARE PRODUCT does not run concurrently (i.e., only one instance of the SOFTWARE PRODUCT can be launched on one computer at a time).
   2. Network License. You may install on and use the SOFTWARE PRODUCT from multiple, non-specific (floating) computers that you designate during the installation process across one or more locations as set out in the Order Confirmation that are owned, leased or controlled by you, provided that the total number of concurrent users does not exceed that set out in such Order Confirmation. You may have only as many users simultaneously using the SOFTWARE PRODUCT at any given time as permitted by the order confirmation. You are responsible for ensuring that the total number of users of the Software at any one time does not exceed the number of users licensed for the Software.
   3. Upgrades. If the SOFTWARE PRODUCT is supplement or replacement code for a SOFTWARE PRODUCT that you previously licensed (an Upgrade), you may only use the SOFTWARE PRODUCT if you have (at the time you receive the Upgrade) a valid license to use the pre-existing SOFTWARE PRODUCT (“Pre-existing License”). You may only install and use the Upgrade on those computers on which you are authorized to use the pre-existing SOFTWARE PRODUCT pursuant to the Pre-existing License and in no event may you run both the Upgrade and the pre-existing SOFTWARE PRODUCT concurrently.
   4. Evaluation License; Pre-Release Software Product. If you have acquired an evaluation license, you may install and permit your employees to use the SOFTWARE PRODUCT on computers in your workplace for internal evaluation purposes only. If the computers are laptop, notebook or similar portable computers, you may use the SOFTWARE PRODUCT on the portable computers while temporarily away from your workplace for internal evaluation purposes only in the same manner as you would normally do so on the portable computers while in your workplace. You will be deemed to have an evaluation license for all SOFTWARE PRODUCTS that have been provided to you by QUANSER and for which you do not have an Order Confirmation or other written document from QUANSER expressly designating the type of license granted to you for the SOFTWARE PRODUCT. The evaluation license is for your own internal use only. Therefore, notwithstanding anything in this Agreement to the contrary, you may not distribute or transfer any applications you create with the SOFTWARE PRODUCT under an evaluation license. You also agree to use reasonable efforts to provide feedback to QUANSER regarding your use of the SOFTWARE PRODUCT, including promptly reporting to QUANSER errors or bugs that you might find. Any such feedback you disclose to QUANSER, including any changes or suggested changes to QUANSER′s current or future products and services (collectively "Feedback"), shall be received and treated by QUANSER on a non-confidential and unrestricted basis, notwithstanding any restrictive or proprietary legends to the contrary accompanying or otherwise associated with the Feedback. You hereby grant to QUANSER a worldwide, royalty-free, non-exclusive, perpetual, and irrevocable license to use, copy, and modify the Feedback for any purpose, including incorporation or implementation of such Feedback into QUANSER products or services, and to display, market, sublicense and distribute the Feedback as incorporated or embedded in any product or service distributed or offered by QUANSER. You also acknowledge and agree that the SOFTWARE PRODUCT IS EVALUATION ONLY AND/OR A PRE-RELEASE SOFTWARE PRODUCT. AS SUCH, THE SOFTWARE PRODUCT MAY NOT BE FULLY FUNCTIONAL AND YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE PRODUCT. QUANSER WILL NOT UPDATE THE SOFTWARE PRODUCT, NOR WILL QUANSER SUPPORT THE SOFTWARE PRODUCT. THE SOFTWARE PRODUCT MAY CONTAIN CODE THAT WILL, AFTER A CERTAIN TIME PERIOD, DEACTIVATE THE SOFTWARE PRODUCT AND RENDER THE SOFTWARE PRODUCT UNUSABLE. ALTHOUGH THE SOFTWARE PRODUCT MAY WARN YOU OF THE TIME-FRAME IN WHICH IT WILL BE DISABLED, YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE PRODUCT MAY BE DEACTIVATED OR RENDERED UNUSABLE WITH OR WITHOUT WARNING. Upon such deactivation, this Agreement will be considered terminated. Prior to deactivation of the SOFTWARE PRODUCT, you may contact QUANSER to convert your evaluation license for the SOFTWARE PRODUCT to a single user license or network use license, under such terms, and to the extent, if any, that QUANSER generally makes such licenses available for the SOFTWARE PRODUCT, or such other license as QUANSER may (in its sole discretion) permit by paying to QUANSER the applicable license fee and obtaining from QUANSER written confirmation of the license type. QUANSER may (in its sole discretion and upon notice to you) terminate the evaluation license at any time, whereupon this Agreement will be considered terminated. If the SOFTWARE PRODUCT consists of pre-release software, then notwithstanding anything in this Agreement to the contrary, QUANSER makes no warranties (express or implied) regarding the SOFTWARE PRODUCT. In the event of a conflict between this section and any other provision of this Agreement, this section shall control.
2. License Term. This Agreement shall continue until terminated as provided in this Agreement.
   1. Perpetual License. You have the right to use the SOFTWARE PRODUCT indefinitely, subject, however, to the termination provisions in this Agreement.
   2. Termination. This Agreement shall automatically terminate upon failure by you to comply with its terms.
   3. Effect of Termination Upon termination of this Agreement, regardless of the reason, the license grants contained herein shall terminate and you must immediately cease all use of the SOFTWARE PRODUCT and immediately destroy all copies of the SOFTWARE PRODUCT, or deliver the SOFTWARE PRODUCT and all copies to QUANSER if QUANSER has so demanded prior to such destruction.
3. Restrictions. You may not: (i) reverse engineer, decompile, or disassemble the SOFTWARE PRODUCT; (ii) use the SOFTWARE PRODUCT to gain access to unencrypted data in a manner that defeats the digital content protection provided in the SOFTWARE PRODUCT; (iii) sub-license, lease, lend, or rent the SOFTWARE PRODUCT; (iv) (other than as expressly permitted under this Agreement) disclose in whole or in part, distribute in whole or part, modify, or create derivatives of the SOFTWARE PRODUCT or distribute or publish applications created with the SOFTWARE PRODUCT. Further, all uses of the SOFTWARE PRODUCT shall be in accordance with the applicable documentation that accompanies the SOFTWARE PRODUCT and not in any manner intended to (or that) circumvents such documentation or the intent of this Agreement. Additionally, the use of the SOFTWARE PRODUCT is intended only for use with content owned by you, public domain content or properly licensed content. You agree that you shall only use the SOFTWARE PRODUCT in a manner that complies with all applicable laws in the jurisdictions in which you use the SOFTWARE PRODUCT, including applicable restrictions concerning copyright and other intellectual property rights. You may not use the SOFTWARE PRODUCT in an attempt to, or in conjunction with, any device, program or service designed to, circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. The SOFTWARE PRODUCT, and all copies of the SOFTWARE PRODUCT, are owned by QUANSER or its suppliers and are protected by applicable copyright laws and international treaty provisions. The SOFTWARE PRODUCT, and copies thereof, are licensed only, and are not sold or leased. In no event may you remove or alter any copyright, patent, trademark, or other legal notices or disclaimers that exist in the SOFTWARE PRODUCT. All rights not expressly granted to you in this Agreement are reserved to QUANSER. Further, and without limiting the foregoing, no license or any right of any kind (whether by express license, implied license, the doctrine of exhaustion, or otherwise) is granted under any QUANSER patents (whether identified herein or not) or other intellectual property right of QUANSER with respect to any other product(s) of QUANSER or of any third party, including the right to use any of these other products.
4. Transfer. You may transfer the SOFTWARE PRODUCT to a third party provided that you notify QUANSER in writing of such transfer (including the name and location of such third party), such third party accepts the terms and conditions of this Agreement, and after such transfer, you do not retain any copies of the SOFTWARE PRODUCT (including all Upgrades that you may have received) nor retain any of the written materials that comprise the SOFTWARE PRODUCT. QUANSER may, in its discretion, charge you a fee for the transfer of the SOFTWARE PRODUCT.
5. Limited Warranty. QUANSER warrants that the physical media, if any, on which the SOFTWARE PRODUCT is recorded is free from defects in materials and workmanship under normal use and service for a period of thirty (30) days from the date of delivery to you. If such a defect exists and you are within the thirty (30) day period, you may return the entire package, including packaging, postage prepaid with a copy of the invoice to QUANSER at the address below (or if the SOFTWARE PRODUCT was downloaded, delete and destroy all copies of the SOFTWARE PRODUCT and certify such deletion and destruction to QUANSER by written or electronic communication), and QUANSER, at its option, shall either return the purchase price or replace the media. If failure of the media has resulted from accident, abuse, or misapplication, QUANSER shall have no responsibility whatsoever to refund the purchase price or replace the media. In the event of replacement of the media, the replacement media will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is the longer. Except as set out in this Agreement, this remedy is your exclusive remedy for a breach of warranty, and is QUANSER's (or any of its affiliated corporations' and their respective directors', officers', employees' or shareholders') entire liability and is the only warranty made with respect to the SOFTWARE PRODUCT. Any claims made by you for the breach of a warranty, shall be made in writing and delivered to QUANSER at the address set forth below, and you shall provide QUANSER a reproducible test case, if applicable, demonstrating the breach of warranty. QUANSER does not warrant that the SOFTWARE PRODUCT will meet your requirements, be error free, or operate without interruptions. You acknowledge that the SOFTWARE PRODUCT operates in an environment that includes software and hardware of Third Party vendors and that QUANSER does not control the products of Third Party vendors. You further acknowledge that you possess superior knowledge with respect to your operations and have relied upon your own skill and judgment in selecting and licensing the SOFTWARE PRODUCT. You further acknowledge that the SOFTWARE PRODUCT is not fault-tolerant and is not designed, manufactured, or intended for use with on-line control equipment in hazardous environments requiring fail safe performance in which the failure of the SOFTWARE PRODUCT could lead directly to death, personal injury, or severe physical or environmental damage. Accordingly, QUANSER and its suppliers specifically disclaim any express or implied warranty of fitness for such High Risk Activities. You agree that QUANSER and its suppliers will not be liable for any claims or damages arising from the use of the SOFTWARE PRODUCT in such applications. You understand that the SOFTWARE PRODUCT may include certain third party software subject to separate license terms either presented at the time of installation or otherwise separately available ("Third Party Software").
6. Intellectual Property Warranty and Indemnity. QUANSER warrants to you that the SOFTWARE PRODUCT does not, to QUANSER's knowledge, infringe any registered patent, copyright, trademark or trade secret right or other intellectual property right of a third party and which intellectual property right is protected by the laws of Canada or the United States (“IP Rights”). QUANSER shall hold you harmless from costs, damages and liability which may be incurred on account of a finding by a court of competent jurisdiction that QUANSER has breached the foregoing non-infringement warranty, and QUANSER shall, at its own expense, defend all claims, suits or actions alleging such infringement of IP Rights against you for which QUANSER had knowledge of such infringement, provided that QUANSER (i) is promptly notified of such claims, suits and actions, (ii) is given all evidence in your possession, and (iii) is given reasonable assistance by you in, and sole control of, the defense thereof and all negotiations for its settlement or compromise. In the event of a claim of infringement of IP Rights, QUANSER's obligation under this Agreement shall be fulfilled if QUANSER: (i) obtains a license for you to continue the use the SOFTWARE PRODUCT, or (ii) replaces or modifies the SOFTWARE PRODUCT so as to be commercially substantially equal but non-infringing, provided, however, that if none of these options are reasonably available to QUANSER, then upon written request by QUANSER, you shall return the SOFTWARE PRODUCT and QUANSER will refund the license fees you paid for the Software. The indemnification under this Section shall not apply to any claim of infringement of IP Rights which may be brought resulting from (1) any unauthorized use of the SOFTWARE PRODUCT; (2) any use of the SOFTWARE PRODUCT in a manner for which the SOFTWARE PRODUCT was not designed or in combination with any other product, which combination is the cause of the IP infringement; (3) any unauthorized modifications to the SOFTWARE PRODUCT made by you; (4) any willful act by you contrary to the terms of the license; (5) any settlement or compromise incurred or made by you without QUANSER's prior written consent; or (6) any Third Party Software. The above states the entire liability of QUANSER with respect to infringement of any and all intellectual property rights by the SOFTWARE PRODUCT and is in lieu of all warranties, express, implied or statutory, in regard thereto.
7. LIMITED LIABILITY. OTHER THAN AS EXPRESSLY SET OUT HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE SOFTWARE PRODUCT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY QUANSER, ITS AFFILIATES, DEALERS, RESELLERS OR DISTRIBUTORS, SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. YOU ASSUME THE ENTIRE RISK AS TO THE USE AND PERFORMANCE OF THE SOFTWARE PRODUCT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL QUANSER, ITS AGENTS OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE PRODUCT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, TESTING INTERRUPTIONS, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE PRODUCT, THE INSTALLATION AND ACTIVATION OF THE SOFTWARE PRODUCT, THE TERMINATION OF THIS AGREEMENT, THE FAILURE OF EQUIPMENT RELATED TO YOUR COMPUTER OR DAMAGE TO YOUR COMPUTER, SOFTWARE OR OTHER PROPERTY RESULTING FROM YOUR USE OF THE SOFTWARE PRODUCT, EVEN IF QUANSER OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM, OR IT IS FORESEEABLE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU IN SUCH A CASE. QUANSER'S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT PAID BY YOU TO QUANSER FOR THE APPLICABLE SOFTWARE PRODUCT. THE LIMITATIONS OF THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8. Indemnity. You agree to indemnify and hold QUANSER and its suppliers harmless from and against any loss, liability, cost, expense or damage (including reasonable legal fees) arising directly or indirectly out of any claim, suit action or judgment brought against QUANSER or its Affiliates related to any act or omission by you relating to the SOFTWARE PRODUCT, including but not limited to the provision by you of any products or services, any representations, warranties or covenants made by you, any failure by you to comply with any of the terms of this Agreement, or violation by you of any provincial, state, federal, foreign, or other laws or regulations or any third party rights.
9. Compliance and Audit Rights. You agree to allow QUANSER or its suppliers (if applicable) to audit your use of the Software, and to provide the Auditor access to your facilities, sites, CPUs and computer systems, and cooperation from your employees and consultants, as reasonably requested by the auditor in order to perform such audit, all during normal business hours, and after reasonable prior notice from the auditor. If an audit discloses that you have failed to comply with one or more licenses, and such failure to comply could have in part or in whole been avoided by you having paid additional fees to expand the scope of the license or licenses, then you shall promptly pay QUANSER such licensing fees (at payee's then current rates) and, if such unpaid license fees exceed 5% of the license fees paid for the applicable SOFTWARE PRODUCT during the applicable period during which such underpayment occurred, then you shall, in addition to paying the unpaid fees, also reimburse QUANSER or its supplier, as the case may be, the full cost of such audit.
10. General Terms and Conditions
    1. Export Controls. The SOFTWARE PRODUCT is subject at all times to all applicable export control laws and regulations of Canada and the United States in force from time to time. You agree that you shall not make any disposition of the SOFTWARE PRODUCT licensed from QUANSER that would violate those laws or regulations or would be contrary to the terms of this Agreement.
    2. Governing Law. This Agreement along with any disputes of any kind whatsoever between Quanser and You are governed by the internal laws of the Province of Ontario, Canada, without regard to principles of conflicts of laws, and specifically excluding the United Nations Convention on the International Sale of Goods. Any disputes shall be resolved solely via commercial arbitration to be conducted in Toronto, Ontario, Canada.
    3. Successors and Assigns. These terms and conditions inure to the benefit of and shall be binding upon, our respective heirs, successors or permitted assigns. You shall not assign this Agreement without the prior written consent of QUANSER and any attempt to do so without such consent shall be void.
    4. Invalidity of Terms. If any of these terms and conditions are found by a court of competent jurisdiction to be invalid, the parties hereto nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in such term or condition, and the other terms and conditions shall remain in full force and effect.
    5. Acknowledgement; Entire Agreement. You acknowledge that you have read this Agreement, understood it, and agree to be bound by its terms and conditions. You also agree that this Agreement is the complete and exclusive agreement between you and QUANSER with respect to the SOFTWARE PRODUCT, and supersedes all prior agreements, representations and any other communications, oral or written, between you and QUANSER relating to the subject matter of the Agreement including, without limitation, any warranties or representations with respect to the SOFTWARE PRODUCT. This Agreement may only be amended by written agreement of both parties.
    6. QUANSER Address QUANSER's address, as of the effective date of this Agreement, is:

       Quanser Consulting, Inc.

       119 Spy Court

       Markham, Ontario

       Canada

       L3R 5H6

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