License Agreement
Last updated: September 9, 2021
Print as PDFWHEREAS, Customer wishes to license the Software specified in an applicable Order Form to this End User License Agreement (this “Agreement”) for use in its business.
THEREFORE, the Parties, intending to be legally bound by the terms hereof, hereby enter into the following agreements:
1. Definitions.
All capitalized terms and expressions used herein shall have the following meaning:
“Agreement” has the meaning ascribed to in in the preamble.
“Company” means TermLynx Solutions Inc.
“Confidential Information” shall be deemed to include any and all non-public information of any form obtained or learned by each Party or its representatives in connection with this Agreement or the installation or use of the Software, including, without limitation, (i) all past, current and planned product and/or hardware specifications, data (including Required Performance Data), Trade Secrets, know-how, methods of doing business, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and development, past, current and planned product designs, customer lists, past, current and anticipated customer requirements, customer feedback, price lists, market studies, business plans, financial information, employees, customers, computer software and programs (including Object Code and Source Code) and database technologies, systems, structures and architectures, documentation (including the Documentation), commercially sensitive information, and any other past, present or anticipated information associated with either Party’s business, however documented; (ii) all past, current and anticipated confidential information of third-parties associated with either Party’s business; (iii) all past, current and future notes, analysis, compilations, studies, summaries and other materials prepared by or for either Party, associated with either Party’s business, and containing or based, in whole or in part, on any information included in the foregoing; and (iv) any documents marked “confidential” or “proprietary;” together with any other items which, by their nature are generally considered proprietary and confidential (regardless of whether such information is specifically labeled as such). Notwithstanding the foregoing, failure by either Party to mark any of the Confidential Information as “Confidential” shall not affect its status as a Confidential Information under this Agreement. Confidential Information shall not include any information to the extent it (i) is or becomes a part of the public domain other than as a result of an unauthorized disclosure by a Party, (ii) was, demonstrably, already in the possession of a Party prior to the date of Acceptance and free of any actual or constructive knowledge of any obligation of confidentiality with respect thereto, (iii) is disclosed to a Party by a third party having no obligation of confidentiality with respect thereto, (iv) is independently developed by a Party without reference to the other Party's Confidential Information, (v) is released from confidential treatment by written consent of a Party, or (vi) is required or requested to be disclosed pursuant to law, court order, subpoena or governmental authority, provided that such disclosing Party promptly notifies the other Party of such an event so that such other Party may seek an appropriate protective order.
“Customer” means the Person identified on the Order Form that has been granted a license by Company to use the Software and the Documentation.
“Disclosing Party” has the meaning given in Section 11.
“Documentation” means the instructional, operating or user manuals or documents including technical specifications or support protocols that Company provides to Customer in any form, including electronic downloads, that relate to the Software.
“End User” means the individual using the Software as authorized by Customer.
“Intellectual Property Rights” has the meaning ascribed to it in Section 9;
“License Fees” are set forth in the applicable Order Form, including any support fees.
“Licensed Features” means the terms identified on an Order Form specifically related to the Software being licensed thereunder, including number of Seats, License Fees, payment terms, the Subscription Term and any other applicable commercial terms.
“Object Code” means the code that can be executed directly or indirectly by a computer’s central processing unit, including, without limitation, compiled machine-readable binary code, or other code that does not need to be compiled before executed. Object Code shall not include code in human readable form.
“Order Form” means each form generated by or on behalf of Company and executed by Customer that specifies the Licensed Features.
“Parties” means Company, Customer and End User and “Party” means any one thereof;
“Person” means an individual, corporation, estate, partnership, unincorporated association, trust, joint venture, legal person or other legal entity.
“Receiving Party” has the meaning given in Section 11.
“Required Performance Data” has the meaning given in Section 4.
“Seats” means the number of unique logons (each with a unique license key) set forth on the applicable Order Form for which a copy of the applicable Software may be used.
“Software” means the computing program(s) set forth on the applicable Order Form, and Upgrades thereof or Updates thereto provided to Customer hereunder.
“Source Code” means the human readable embodiment of the software code of the Software which is readily readable by humans trained in the computer language in which the source code is written and all related source documentation designed to allow persons who are experienced computer programmers, but who are unfamiliar with the Software, to effect modifications, enhancements and support for the Software.
“Subscription Term” means the period of time from the start date to the end date specified in each Order Form.
“Trade Secrets” means any information of either Party, or any affiliate of either Party, without regard to form, that constitutes a trade secret under applicable law. For avoidance of doubt, the Source Code constitutes a Trade Secret of Company.
“Updates” means the maintenance fixes and error corrections of the Software provided by Company.
“Upgrades” means versions of the Software that Company designates as such that incorporate new functionality or enhances performance of the Software, and “Upgrade” means any one thereof.
2. License.
Subject to the terms and conditions of this Agreement, including timely payment of License Fees (where applicable), Company hereby grants to Customer a non-exclusive, non-transferable, nonsublicensable, fully revocable and worldwide license to use, and to permit End Users to use, the Software and Documentation during the Subscription Term solely for the internal business purposes of Customer. The Software may be used for the number of Seats identified on the applicable Order Form. Customer shall not and shall not permit any End User to use the Software beyond the Subscription Term, in excess of the authorized number of Seats, or in any violation of any other restrictions or limitations set forth on the applicable Order Form or in the Documentation. Customer agrees that by purchasing the Software, downloading it, installing it, using (or piloting) it, clicking the “Accept” button or authorizing (implicitly or expressly, verbally or in writing) any Person, including an End User, to do any of the foregoing on Customer’s or an End User’s behalf, Customer accepts, for itself and on behalf of each End User, to be bound and become a party to this Agreement (“Acceptance”). If for any reason Customer or an End User cannot accept or comply with the terms and conditions hereof, it shall immediately cease usage of the Software, and destroy any copy of the Software, Documentation and any other Confidential Information in its possession. If the Software, Documentation and other Confidential Information is destroyed, Customer shall submit a certification verifying the same to Company upon Company’s request.
3. Evaluation License and Terms Specific to Evaluation Copies of Software.
If the Order Form indicates that the Software is being licensed for evaluation, then the following shall apply to the licensing of the Software during the evaluation term as identified on the applicable Order Form and notwithstanding any contrary term specified in this Agreement: (A) unless otherwise specified in the Order Form, License Fees do not apply; (B) the Software is licensed solely for the evaluation term and solely for the limited purpose of evaluating the Software and establishing Customer’s desire to acquire a license to Software for a Subscription Term; (C) the Software is provided “As Is” without any warranty of any kind, either express or implied, including but not limited to, the implied warranties or merchantability or fitness for a particular purpose; (D) Customer shall not be entitled to any Upgrades or Updates during the evaluation term; (E) except for Company’s breach of Section 11(i) and 11(ii) of this Agreement, Customer shall be solely responsible for any losses, costs, or damages, of any kind, that it incurs directly or indirectly with respect to use of the Software and agrees to hold harmless, defend, and indemnify Company in connection with any claims or actions brought by a third party alleging any damages or losses in connection with Customer’s use of the Software; and (F) upon the expiration of the evaluation term or earlier, upon five (5) days’ notice to Customer, if requested by Company, the license granted shall terminate and Customer shall promptly return the Software and Documentation, without retaining copies.
4. Restrictions.
Except as otherwise expressly permitted under this Agreement, Customer shall not (and shall not authorize or permit any Person including any End Users to): (A) copy or use the Software or any portion thereof, except as expressly authorized by this Agreement; (B) use the Software on unauthorized equipment or products, (C) duplicate, modify the Software or create derivative works based upon the Software; (D) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction; (E) disclose, provide, or otherwise make available Trade Secrets contained within the Software in any form to any third party without the prior written consent of Company; (F) release, publish, and/or otherwise make available to any third party the results of any performance or functional evaluation of the Software without the prior written approval of Company; or (G) alter or remove any proprietary notices or legends contained on or in the Software. For the avoidance of doubt, all restrictions specified herein with respect to Software apply to all components and the Documentation.
Customer warrants that it and the End Users are not competitors or potential competitors of Company and are not acting on behalf of a competitor or potential competitor.
Customer agrees to provide network access for the Software to communicate with the Company servers on an ongoing basis, as applicable based on the Software, and that the Customer identifier (such as a name or number), End User identifier (such as name or id), computer identifier (such as computer name and network address), Company product (such as name and version), performance tracking data, crash stack trace data and Company license key (collectively, “Required Performance Data”) may be communicated. Customer agrees that the Software may not operate without such access, and that the Software may stop operating without notice if it is unable to verify license rights. Customer also agrees that, without such access, Company may not be obligated to provide the support and maintenance services referred to in Section 5.
5. Support and Maintenance Services.
Subject to the terms and conditions of this Agreement, Company shall provide Customer with support and maintenance services for the duration of the Subscription Term in accordance with the support protocol delivered by Company to Customer, as the same may be modified from time to time.
6. Customer Responsibilities.
In addition to the obligations of Customer as otherwise specified in this Agreement, Customer shall be solely responsible for the following:
(a) procuring all computer hardware, peripherals, device drivers, third party operating systems, and other products and services which may be required to use the Software;
(b) the compatibility of the computer hardware, peripherals, device drivers, third party operating systems, and other third-party software with the Software;
(c) the maintenance and support of Customer’s hardware, peripherals, third party operating systems, third party software and Internet service;
(d) the results obtained from use and operation of the Software, provided, however, nothing contained in this subsection (d) shall affect the limited warranties contained herein; and
(e) providing and maintaining the appropriate operating environment for Customer’s hardware and peripherals and maintaining back-up and disaster recovery procedures and facilities.
7. Fees.
Customer shall pay the License Fees set forth on the applicable Order Form within thirty (30) days of Company’s invoice. All renewal fees are payable annually in advance. All amounts are nonrefundable. Customer will pay all sales, use or similar taxes applicable to this transaction arising now or at any time in the future. Such amounts, if any, are not included in the License Fees. Unless Customer has an enterprise license as defined in any Order Form, at least sixty (60) days prior to the end of the Subscription Term, or at any time upon the reasonable request of Company, Customer will verify the number and location of End Users using the Software and if such number exceeds the number identified in the Order Form, the License Fees will thereupon be increased accordingly based upon the then current rates charged by Company. If any undisputed fee due hereunder remains unpaid ten (10) days after its due date, Company may assess, and Customer shall pay, a finance charge of the greater of one (1) percent per month or the maximum rate allowable under applicable law on all undisputed amounts past due from the date that such amount became due and payable.
8. Indemnity.
Subject to the terms herein, Company, at its own expense, shall defend Customer from any and all third party claims that the Software infringes or violates any third party intellectual property right in the country that Customer acquired a license to Software as set forth on the applicable Order Form and Company shall indemnify Customer from any amounts assessed against Customer in a resulting judgment or amounts to settle such claims, provided that Customer: (a) gives Company prompt written notice of any such claim; (b) permits Company to control and direct the defense or settlement of any such claim; and (c) provides Company all reasonable assistance in connection with the defense or settlement of any such claim, at Company’s expense. If Customer’s use of the Software is (or in Company’s opinion is likely to be) enjoined, Company, at its expense and in its sole discretion, may: (i) procure the right to allow Customer to continue to use the Software, or (ii) modify or replace the Software or infringing portions thereof to become non-infringing, or (iii) if neither (i) nor (ii) is commercially feasible, terminate Customer’s right to use the affected portion of the Software and refund any License Fees paid by Customer during the then current Subscription Term but in no event greater than a three (3) year period. Notwithstanding the foregoing, Company shall have no obligations under this Section to the extent any infringement claim is based upon or arises out of: (A) any modification or alteration to the Software not made by Company or its contractors; (B) any combination or use of the Software with products or services not approved by Company in writing; (C) Customer’s continuance of allegedly infringing activity after being notified thereof; (D) Customer’s failure to use Updates made available by Company; and/or (E) use of the Software not in accordance with the applicable Documentation or the license granted hereby. The remedies set forth in this Section constitute Customer’s sole and exclusive remedies, and Company’s entire liability, with respect to infringement or misappropriation of third-party intellectual property.
9. Ownership.
(a) The Software is licensed and not sold. Customer hereby acknowledges and agrees that Company and its third party suppliers and licensors exclusively own all rights, title and interest in the Software, Documentation, the associated content, and all patents, worldwide copyrights, trademarks, service marks, Trade Secrets, and confidential and proprietary rights therein, and all goodwill associated therewith (“Intellectual Property Rights”). Customer also acknowledges that nothing herein gives Customer any right, title or interest in the Software or Documentation except for Customer’s limited express rights granted pursuant to Section 2 of this Agreement. All suggestions or feedback provided by Customer, its employees, consultants or agents (including End Users) to Company with respect to the Software shall be Company’s property and deemed Confidential Information of Company and Customer hereby assigns the same to Company. Without limiting the foregoing, Customer, on behalf of itself and each End User, acknowledges that the Software and Documentation shall not be copied, reproduced, translated, or reduced to any electronic medium or machine readable form, in whole or in part, without the express written permission of Company, except as necessary for system backup and disaster recovery. The Software may be covered by one or more Canadian and/or international patents, as well as copyright, and all rights under Canadian and international patent and copyright laws are reserved to Company and its licensors. Customer shall not undertake or permit any action that will interfere with or diminish the right, title or interest of Company or its licensors in their trademarks, tradenames, copyright or patent rights or any of their rights under patent, trademark or copyright laws.
(b) In the event that any right, title or interest in or to any Intellectual Property Rights vests in Customer, or any of its employees, agents, contractors or End Users, Customer agrees to assign, and does hereby irrevocably assign, convey and otherwise transfer to Company any and all such right, title and interest in and to the Intellectual Property Rights without further consideration from or action by Customer or Company. Customer agrees to assist Company, its third-party suppliers and licensors, as applicable, in every way necessary and at Customer’s expense to obtain and enforce any patents, copyrights or proprietary rights relating to the Intellectual Property Rights, and Customer agrees to continue this assistance after termination of its relationship with Company.
(c) Customer acknowledges that: (i) any unauthorized reproduction, preparation of derivative works based on, distribution, performance, display, making, using, offer for sale, or sale of the Software or Documentation; or (ii) any use or disclosure of Company’s Confidential Information, or any rights embodied therein, by Company, or its employees, agents, or representatives, including its End Users, will result in irreparable harm to Company for which remedies other than injunctive relief may be inadequate, and that Company shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such unauthorized acts, without posting a bond, in addition to other appropriate remedies.
10. Term and Termination.
(a) Subscription Term. The term of each license of Software granted hereunder shall be the Subscription Term. Upon expiration of a Subscription Term, Customer shall destroy (or at Company’s option, return) all copies of the Software, Documentation and any other Confidential Information in its possession or control. If the Software, Documentation and such other Confidential Information is destroyed, Customer shall submit a certification verifying the same to Company upon Company’s request. Notwithstanding the foregoing, Customer shall be entitled to retain copies of the Software, Documentation and such other Confidential Information for routine back-up and archival purposes, or otherwise as required by law, provided that all such information retained is subject to the confidentiality restrictions set forth in this Agreement in perpetuity.
(b) Agreement Term. This Agreement shall remain effective until terminated or until the Subscription Term under each Order Form expires whichever is earlier. This Agreement may be terminated by a Party: (a) upon thirty (30) days written notice, if the other Party materially breaches any provision of this Agreement and such breach remains uncured within such thirty (30) day period following the delivery of a notice of such breach; or (b) effective immediately, if the other Party ceases to do business, or otherwise terminates its business operations without a successor; or (c) effective immediately, if the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it and not dismissed within ninety (90) days. Upon termination of this Agreement, Customer shall destroy (or at Company’s option, return) all copies of the Software and Documentation in its possession or control. If the Software and Documentation is destroyed, Customer shall submit a certification verifying the same to Company upon the Company’s request. Notwithstanding the foregoing, Customer shall be entitled to retain copies of the Confidential Information and Software for routine back-up and archival purposes, or otherwise as required by law, provided that all such information retained is subject to the confidentiality restrictions set forth in this Agreement in perpetuity.
(c) Survival. All Sections, definitions, terms and conditions necessary to enforce a Party’s rights and obligations under this Agreement shall survive the termination or expiration of this Agreement. Additionally, Sections 3, 7, 8, 9, 10, 11, 13 and 14 shall survive the termination or expiration of this Agreement.
11. Confidentiality and Data Protection.
Each Party (the “Receiving Party”) agrees to keep the Confidential Information of the other Party (the “Disclosing Party”) in confidence and not to use such Confidential Information except in the performance of its obligations hereunder. Except as expressly authorized herein, the Receiving Party agrees to: (i) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (ii) disclose the Disclosing Party’s Confidential Information only to those employees, contractors or professional advisors of the Receiving Party who have a need to know such information for the purposes of this Agreement, provided that any such employee and third party shall be subject to a binding written agreement with respect to such Confidential Information at least as restrictive as the terms and conditions of this Agreement, and the Receiving Party shall remain solely liable for any non-compliance of such employee or third party with the terms and conditions of this Agreement. During the Subscription Term, Company will maintain safeguards for protecting Customer’s Confidential Information as described in Company’s privacy policy located at https://docs.termlynx.com/docs/legal/privacy-policy/.
12. Mutual Warranties.
Each party represents and warrants to the other Party that (i) it has the legal power to enter into this Agreement and (ii) it will not intentionally transmit to the other Party any malicious code (except for malicious code first transmitted to the warranting party by the other Party).
13. Limitation of Liability.
(a) Disclaimer of Warranties. EXCEPT FOR ANY LIMITED WARRANTY EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE, DOCUMENTATION, ANY RELATED SERVICES ARE PROVIDED “AS IS” AND COMPANY AND ITS LICENSORS PROVIDE NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE, DOCUMENTATION OR ANY OTHER SERVICES. EXCEPT AS SPECIFIED IN THIS SECTION 13, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NONINTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY COMPANY, ITS SUPPLIERS AND LICENSORS. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. FURTHER, COMPANY AND ITS LICENSORS DO NOT WARRANT THE RESULTS OF USE OF THE SOFTWARE OR DOCUMENTATION OR THAT THE SOFTWARE IS BUG/ERROR FREE OR THAT ITS USE WILL BE UNINTERRUPTED.
(b) General. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, ITS OR THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS TOTAL COLLECTIVE LIABILITY TO CUSTOMER OR AN END USER FOR DAMAGES OF ANY KIND AND ANY INDEMNITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION OR ANY RELATED SERVICES WHETHER CLAIMED IN CONTRACT, EQUITY, TORT, (INCLUDING NEGLIGENCE OR STRICT LIABILITY), WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SUMS PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO ANY EVENT GIVING RISE TO ANY SUCH DAMAGE.
(c) Damages. IN NO EVENT SHALL COMPANY OR ITS AFFILIATES BE LIABLE TO CUSTOMER OR AN END USER FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR THE LOSS OF PROFIT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION OR ANY RELATED SERVICES, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. EXCEPT AS PROVIDED OTHERWISE IN THIS AGREEMENT, THE PARTIES FURTHER AGREE THAT COMPANY SHALL NOT BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST COMPANY BY ANY OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE DOCUMENTATION OR ANY RELATED SERVICES.
14. General
(a) Governing law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein (excluding any conflict of laws rule or principle, foreign or domestic, which might refer such interpretation to the laws of another jurisdiction). The Parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Quebec and elect domicile in the City of Montréal with respect to any matter relating to the execution or construction of this Agreement or the exercise of any right or the enforcement of any obligation arising hereunder (excluding any conflict of forum rule or principle, foreign or domestic, which might refer such matter to the courts of another jurisdiction).
(b) Entire Agreement; Modifications. Except as expressly provided herein, this Agreement (specifically including any terms incorporated herein by reference) and each Order Form executed in connection herewith constitutes the entire Agreement between the Parties with respect to the license of the Software. Except as expressly provided herein, this Agreement supersedes and cancels all previous written and oral agreements and communications relating the subject matter of this Agreement. Except as expressly provided herein, this Agreement may be amended only by a writing executed by Company and Customer. In the event of a conflict between the terms and conditions of this Agreement and an Order Form, the more specific terms of the Order Form, if applicable, shall prevail. Without limiting the foregoing, the terms and conditions of this Agreement and the Order Form govern in the event of any conflict with a purchase order, if use of a purchase order is required by Customer. For avoidance of doubt, each Order Form executed by Customer that references this Agreement by the effective date set forth above is incorporated herein by reference.
(c) Illegality. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, that provision shall modified, limited or eliminated to the minimum extent necessary and such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect.
(d) Waiver. The failure of any Party to enforce any rights granted hereunder or to take action against another Party in the event of any breach hereunder shall not be deemed a waiver by such Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
(e) Assignment. This Agreement is non-assignable unless the other Parties (other than the End Users) consent, which consent shall not be unreasonably withheld. A Party (other than an End User) may assign this Agreement, without the consent of the other Parties, to a successor in interest in the event of a merger, acquisition or re-organization. Any action or conduct in violation of the foregoing shall be void and without effect.
(f) Legal Fees. In any action to enforce one’s rights hereunder, the non-prevailing Party shall pay the reasonable fees and expenses of the prevailing Party.
(g) Notice. Any and all notices or other information to be given by one of the Parties to the other shall be in writing and delivered as follows: (i) if to Customer or an End User, by (x) electronic mail to Customer at the email address on the applicable Order Form (subject line: Notice under Terms of Use), or (y) by certified mail (receipt requested), or hand delivery to the other party to the address set forth on the applicable Order Form; (ii) if to Company, by (x) electronic mail to Company at clientsuccess@termlynx.com (subject line: Notice under Terms of Use), or (y) by certified mail (receipt requested), or hand delivery to the other party to the address set forth on the applicable Order Form. Your Partner in Productivity