Note: This Software End User Licence Agreement (EULA) applies to the use of the CurrentWare software. You may also be interested in CurrentWare’s Applications Privacy Policy.

For policies about the use of the CurrentWare.com website please see the CurrentWare website terms of service and the CurrentWare website privacy policy.

Software End User Licence Agreement

This End User Licence Agreement, including the Order Form which by this reference is incorporated herein (this “Agreement“), is a binding agreement between CURRENTWARE INC. (“Licensor“) and the person or entity identified on the Order Form as the licensee of the Software (“Licensee“).

LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY INSTALLING THE SOFTWARE ON ANY DEVICE YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENCE THE SOFTWARE TO LICENSEE AND YOU MUST NOT INSTALL THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENCE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.

1. Definitions. For purposes of this Agreement, the following terms have the following meanings:

1.1 “Authorized Users” means the following individual persons authorized to use the Software pursuant to the licence granted under this Agreement: in the case of a Corporate Licensee, any employee, contractor, director, affiliate, physical device, or shareholder of the Licensee who is provided access to the Software by the Licensee, or in the case of a personal individual Licensee, any party who the individual licensee provides access to the Software. The number of Authorized Users is the number of licenses purchased by the Licensee.

1.2 “Confidential Information” has the meaning set forth in 9.1.

1.3 “Disclosing Party” has the meaning set forth in 9.1.

1.4 “Documentation” means user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.

1.5 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

1.6 “Licence Fees” means the licence fees, including all taxes thereon, paid or required to be paid by Licensee for the licence granted under this Agreement.

1.7 “Licensee” has the meaning set forth in the preamble.

1.8 “Licensor” has the meaning set forth in the preamble.

1.9 “Order Form” means the quote form filled out and executed by both the Licensor and Licensee, for Licensee’s purchase of the licence for the Software granted under this Agreement.

1.10 “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

1.11 “Receiving Party” has the meaning set forth in 9.1.

1.12 “Representative” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors. 

1.13 “Software” means the software programs for which Licensee is purchasing a licence, as expressly set forth in the Order Form.

1.14 “Term” has the meaning set forth in 11.1.

1.15 “Third Party” means any Person other than Licensee or Licensor.

1.16 “Update” has the meaning set forth in 6.2.

2. Licence Grant and Scope. Subject to and conditional on Licensee’s payment of the Licence Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, and the Currentware Inc. Terms of Service which can be found at https://www.currentware.com/terms-of-service/ (the “Terms of Service”) , Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable limited licence during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this 2 and subject to all conditions and limitations set forth in 3 or elsewhere in this Agreement or the Terms of Service. This licence grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:

1. 1. 2.1 Download, and install in accordance with the Documentation one (1) copy of the Software  for the Authorized Users set forth on the Order Form owned or leased, and controlled by, Licensee.  The Licensee understands that they must procure licenses for the greater of the number of users or computers that the Software is being used to manage.
   2. 2.2 Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes. 
   3. 2.3 Download or otherwise make one (1) copy of the Documentation and use such Documentation solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee:
      

(a) will be the exclusive property of Licensor;
(b) will be subject to the terms and conditions of this Agreement; and
(c) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

• 2.4 Transfer any copy of the Software from one device to another, provided that:

  (a) the number of computers or users on which the Software is managing at any one time does not exceed the number permitted under 1.1; and
  (b) Licensee notifies Licensor in writing of each such transfer, including in such notice the information required under this EULA for each computer on which the Software is installed or user that is being managed.

• 3. Use Restrictions.
  1. 3.1 Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:

     (a) use (including make any copies of) the Software or Documentation beyond the scope of the licence granted under
     (b) except as may be permitted expressly by this Agreement, and strictly in compliance with its terms, provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;
     (c) use the Software in any manner that contravenes the Terms of Service;
     (d) except as expressly set forth in 1.1 and 2.3, copy the Software or Documentation, in whole or in part;
     (e) modify, correct, translate, adapt, enhance, further develop, or otherwise create derivative works, enhancements or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
     (f) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
     (g) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
     (h) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy provided on or with the Software or Documentation, including any copy thereof;
     (i) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software and Documentation, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service (SaaS), cloud, or other technology or service;
     (j) use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage including:

     (i) power generation systems;
     (ii) aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;
     (iii) safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
     (iv) military or aerospace applications, weapons systems, or environments;

(k) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any Person, or that violates any applicable law;

(l) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any Person, or in violation of any applicable law, regulation, or rule; or

(m) use the Software or Documentation for purposes of benchmarking or competitive analysis of the Software, developing, using, or providing of a software product or service that competes with the Software or any other purpose that is to the Licensor’s commercial disadvantage. 

3.2 No Implied Rights. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any Intellectual Property Rights or license, nor other right, title, or interest in or to the Software or Documentation, and Licensor’s Confidential Information.

• 4. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this Agreement.
  
  
• 5. Compliance Measures.
  1. 5.1 The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under 3. Licensee shall not, and shall not attempt to, remove, disable, bypass, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
     
  2. 5.2 During the Term, Licensor may, in Licensor’s sole discretion, audit Licensee’s use of the Software to ensure Licensee’s compliance with this Agreement, provided that any such audit shall be conducted on not less than seven (7) days prior notice to Licensee, and Licensor also may, in its sole discretion, audit Licensee’s systems within seven (7) months after the end of the Term to ensure Licensee has ceased use of the Software and removed all copies of the Software from such systems as required hereunder. The Licensee shall reasonably cooperate with Licensor’s personnel conducting such audits and provide all reasonable access requested by the Licensor to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information. Licensor shall only examine information directly related to the Licensee’s use of the Software and at no times will have access to or a right to the Confidential Information of the Licensee.
  3. 5.3 If any of the measures taken or implemented under this 5 determines that the Licensee’s use of the Software exceeds or exceeded the use permitted by this Agreement, then:

(a) Licensee shall, within seven (7) days pay to Licensor the retroactive Licence Fees for such excess use and, unless Licensor terminates this Agreement under 5.3(b), obtain and pay for a valid licence to bring Licensee’s use into compliance with this Agreement. In determining the Licensee Fee payable in accordance with the foregoing, (i) unless Licensee can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by Licensor hereunder and continued uninterrupted thereafter, and (ii) the rates for such licences shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement).

(b) If the use exceeds or exceeded the use permitted by this Agreement the Licensor shall also have the right to terminate this Agreement and the licence granted hereunder, effective immediately upon written notice to Licensee.

Licensor’s remedies set forth in this 5.3 are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.

6. Maintenance and Support.

6.1 The Licensor shall provide such maintenance and support to the Licensee as requested by the Licensee, and agreed to in writing by the Licensor in the Licensor’s sole discretion.

6.2 Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates“) as Licensor makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide some or all Updates via download from a website designated by Licensor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.

6.3 Licensor reserves the right to make the provision of maintenance and support services, including all or any Updates, conditional on Licensee’s registration of the copy of Software for which support is requested. Licensor has no obligation to provide maintenance and support services except as mutually agreed between the Parties in writing.

7. Collection and Use of Information.

7.1 Licensee acknowledges that Licensor may, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through: 

(a) the provision of maintenance and support services; and

(b) security measures included in the Software as described in 5.

7.2 Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:

(a) improving the performance of the Software or developing Updates; and

(b) verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.

8. Intellectual Property Rights. Licensee acknowledges and agrees that that all right, title, and interest in and to the Software and Documentation are owned by the Licensor. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the licence granted and subject to all terms, conditions, and restrictions under this Agreement. reserves and shall retain it’s entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights. 

9. Confidential Information. 

9.1 In connection with this Agreement each party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other party (as the “Receiving Party“). Subject to 9.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, or employees, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing: (a) the Software and Documentation are the Confidential Information of Licensor; (b) the financial terms and existence of this Agreement are the Confidential Information of /each of the parties; and (c) any information collected by the software outside the scope of Section 7 herein is the Confidential Information of the Licensee. 

9.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ non-compliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

9.3 Protection of Confidentiality Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

(b) except as may be permitted by and subject to its compliance with 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this 9.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this 9.3;

(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;

(d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this 9; and

(e) promptly notify the Disclosing Party in writing of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information and use its best efforts to prevent further unauthorized use or disclosure.

9.4 Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

9.5 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under 9.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this 9.5, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other authority having jurisdiction that such Confidential Information will be afforded confidential treatment.

10. Payment. All Licence Fees and Support Fees are payable in advance in the manner set forth in the Order Form and are non-refundable. Any renewal of the licence or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full.

11. Term and Termination.

11.1 Term. Unless terminated earlier pursuant to Section 11.2 below, this Agreement shall commence on the Effective Date and shall remain in force for the Initial Term. Thereafter, the term of the Agreement will be automatically renewed on the anniversary of the Effective Date for additional renewal terms equal to the duration of the Initial Term specified in the Order Form (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term hereof. CurrentWare reserves the right to change fees for the CurrentWare Service upon thirty (30) days of written notice before each Renewal Term. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.

11.2 Suspension of Service. CurrentWare may suspend Business’s access to the CurrentWare Service if: (i) Business’s account is overdue or (ii) Business has exceeded its Scope of Use limits. CurrentWare may also suspend Business’s access to the CurrentWare Service, remove Business Data or disable third-party products if it determines that: (a) Business has breached the provision of the Agreement or (b) suspension is necessary to prevent harm or liability to other Businesss or third parties, including any third-party payment processor, or to preserve the security, stability, availability or integrity of the CurrentWare Service. CurrentWare will have no liability for taking action as permitted above. For avoidance of doubt, Business will remain responsible for payment of Fees during any suspension period. However, unless this Agreement has been terminated, CurrentWare will cooperate with Business to restore access to the Service once it verifies that Business has resolved the condition requiring suspension.

11.3 Termination for Cause. Either party may terminate this Agreement if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). If Business terminates during the Agreement for any reason other than the foregoing, Business will be responsible for the fees due for the then current Term. CurrentWare may also terminate this Agreement immediately if Business breaches Sections 2, 3 or 5, for repeated violations of other Sections of this Agreement, or if applicable, a breach of the parties’ BAA.

11.4 Effect of Termination. Upon any expiration or termination of this Agreement: (i) Business’s license rights shall terminate and it must immediately cease use of the CurrentWare Service and delete (or, at CurrentWare’s request, return) any and all copies of any CurrentWare documentation, scripts, passwords or access codes and any other CurrentWare Confidential Information in Business’s possession, custody or control and (ii) Business’s right to access any Business Data in the applicable Service will cease and unless otherwise precluded by a BAA, CurrentWare may delete any such data in its possession at any time. If CurrentWare terminates this Agreement for cause as provided in Section 11.3 (Termination for Cause), any payments for the remaining portion of the Term will become due and must be paid immediately by Business. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

11.5 Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Licensor provides written notice thereof.

11.6 Licensor may terminate this Agreement, effective immediately, if Licensee files an assignment in bankruptcy or has a bankruptcy order made against it under any bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, receiver-manager, monitor, or custodian for all or a substantial part of its property.

11.7 Upon expiration or earlier termination of this Agreement, the licence granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation, and permanently erase or cause to be erased from its and its Authorized Users’ computer systems, files, and storage media all copies of the Software and Documentation of Licensor obtained, made, or authorized to be made by Licensee or on Licensee’s behalf. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees and Support Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.

11.8 The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 1, 7.2, 8, 9, 11.7, 11.8, 12, 13, 14, and 15.

12. Warranty Disclaimer.

12.1 THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE LICENSOR PROVIDES NO CONDITION, WARRANTY, OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

12.2 THE LICENSEE EXPRESSLY ACKNOWLEDGES THAT DETERMINING WHETHER USE OF THE SOFTWARE CONTRADICT ANY REGULATORY, LEGAL OPERATIONAL IMPACTS, OR ANY LIMITATIONS & REQUIREMENTS WHATSOEVER THAT GOVERN THE USE OF THE SOFTWARE IN THE REGION, JURISDICTION OR INDUSTRY IN WHICH THE LICENSEE OPERATES ARE SOLELY THE RESPONSIBILITY OF THE LICENSEE. THE LICENSOR IS NOT LIABLE IN ANY CIRCUMSTANCE, FOR ANY REGULATORY PENALTY, LEGAL ACTION, GOVERNMENTAL, OR INDUSTRY SPECIFIC ORDER OF ANY KIND. ANY DISPUTE BETWEEN ANY PERSON AND THE LICENSEE TO THEIR USE OF THE SOFTWARE IS THE SOLE RESPONSIBILITY OF THE LICENSEE WITHOUT LIMITATION.

13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

13.1 IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR: (a) ANY: (i) USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; (ii) LOST REVENUES OR PROFITS; (iii) DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; (iv) LOSS OR CORRUPTION OF DATA; (v) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; (vi) FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; (vii) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (viii) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (ix) BREACHES IN SYSTEM SECURITY; OR (b) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, IN EACH CASE WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13.2 IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF LICENSOR AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR (i) THE SOFTWARE OR (ii) UP TO TWELVE (12) MONTHS OF THE SPECIFIC SERVICES, THAT IS OR ARE THE SUBJECT OF THE CLAIM. 

13.3 THE LIMITATIONS SET FORTH IN 13.1 AND 13.2 SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

14. Export Regulation. The Software and Documentation may be subject to Canadian export control laws. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules and complete all required undertakings (including obtaining any necessary export licence or other governmental approval), before exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside Canada.

15. Miscellaneous.

15.1 Governing Law. This Agreement and all related documents, including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein.

15.2 Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

15.3 Force Majeure. Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labour disputes, civil disturbances, riot, rebellion, invasion, hostilities, war, terrorist attack, embargo, natural disaster, epidemics, pandemics, including the 2019 novel coronavirus disease (COVID-19) pandemic, acts of God, flood, tsunami, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor’s reasonable control.

15.4 Notices. Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (other than routine communications having no legal effect) (each, a “Notice“) in writing and addressed to the other Party at the addresses set forth on the Order Form (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). Notices sent in accordance with this Section will be conclusively deemed validly and effectively given: (a) on the date of receipt, if delivered by personal delivery, or by a nationally recognized same day or overnight courier (with all fees prepaid); (b) upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “read receipt” function, as available, return email or other form of written acknowledgment), if delivered by email or (c) on the fifth day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.

15.5 Entire Agreement. This Agreement, together with the Order Form, all schedules and exhibits attached hereto, and all other documents that are incorporated by reference herein including the Terms of Service constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. 

15.6 Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this 15.6 is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance under this Agreement without Licensee’s consent. This Agreement is binding upon and enures to the benefit of the parties hereto and their respective permitted successors and assigns.

15.7 Successors and Assigns; No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

15.8 Amendments and Modifications. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. 

15.9 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

15.10 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

15.11 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (ii) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Order Form and all Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. Unless otherwise stated, all dollar amounts referred to in this Agreement are stated in Canadian dollars.

15.12 Language. The Parties have expressly required that this Agreement and all related documents, including notices and other communications, be drafted in the English language only. Les Parties ont expressément exigé que la présente convention ainsi que tous les documents qui s’y rattachent, incluant les avis et les autres communications, soient rédigés en langue anglaise seulement.

15.13 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

ANNEX 1

AUTHORIZED USER TERMS OF USE

These Software Terms of Use (“Terms of Use“) govern your use of the CurrentWare Suite, BrowseReporter, BrowseControl, AccessPatrol, or enPowerManager software (the “Software“), including all user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the Software or its use or specifications (the “Documentation“) provided to you (“you” or “your“) for use pursuant to and subject to a software licence agreement (the “Software Licence Agreement“) between Currentware Inc. (“Licensor“) and your employer or other person or entity who owns or otherwise lawfully controls the computer or User on which the software is managing (“Licensee“).

 

BY CHECKING THE “ACCEPT” BOX YOU: (i) REPRESENT THAT YOU ARE DULY AUTHORIZED BY LICENSEE TO ACCESS AND USE THE SOFTWARE; AND (ii) ACCEPT THESE AUTHORIZED USER TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT CHECKING THE “ACCEPT” BOX AND YOU WILL HAVE NO LICENCE TO, AND MUST NOT ACCESS OR USE, THE SOFTWARE.

 

1. Licence Grant. 

Subject to your strict compliance with these Terms of Use, Licensor hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited licence to use the Software solely in accordance with the Documentation, as installed on the equipment provided by Licensee and for Licensee’s internal business purposes. The foregoing licence will terminate immediately on the earlier to occur of:

(a) the expiration or earlier termination of the Software Licence Agreement between Licensor and Licensee; or

(b) your ceasing to be authorized by Licensor to use the Software for any or no reason.

2. Use Restrictions. 

You shall not, directly or indirectly:

(a) use the Software or Documentation except as set forth in 1;

(b) copy the Software or Documentation, in whole or in part;

(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof;

(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; 

(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices included on or in the Software or Documentation, including any copy thereof;

(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Software or any features or functionality of the Software, for any reason, to any other person or entity, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;

(h) use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:

(i) power generation systems;

(ii) aircraft navigation or communications systems, air traffic control systems, or any other transport management systems;

(iii) safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and

(iv) military or aerospace applications, weapons systems, or environments;

(i) use the Software or Documentation in violation of any law, regulation, or rule; or

(j) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor’s commercial disadvantage.

3. Compliance Measures. 

The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against use of the Software:

(a) beyond the scope of the licence granted to under 1; 

(b) prohibited under 2.

You shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.

4. Collection and Use of Information.

(a) Licensor may, directly or indirectly through the services of others, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, by means of (i) providing maintenance and support services and (ii) security measures included in the Software as described in 3.

(b) You agree that the Licensor may use such information for any purpose related to any use of the Software by you, including but not limited to: (i) improving the performance of the Software or developing updates; and (ii) verifying compliance with the terms of this Agreement and enforcing Licensor’s rights, including all intellectual property rights in and to the Software. 

5. Intellectual Property Rights. You acknowledge that you do not acquire any ownership interest in the Software under this Agreement, or any other rights to the Software other than to use the Software in accordance with the licence granted under this Agreement, subject to all terms, conditions, and restrictions. Licensor reserves and shall retain its entire right, title, and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, subject to the licence expressly granted to the Licensee in this Agreement. You shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.

6. Disclaimer of Liability. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE. YOU ARE PROVIDED THE SOFTWARE UNDER THE SOFTWARE LICENCE AGREEMENT BETWEEN LICENSOR AND LICENSEE, SOLELY FOR THE BENEFIT OF LICENSEE AND AT LICENSEE’S DISCRETION. YOU ACKNOWLEDGE THAT YOU HAVE NO RIGHTS UNDER THAT AGREEMENT INCLUDING ANY RIGHTS TO ENFORCE ANY OF ITS TERMS. ANY OBLIGATION OR LIABILITY LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR LICENSORS OR SERVICE PROVIDERS, MAY HAVE WITH RESPECT TO YOUR USE OR INABILITY TO USE THE SOFTWARE SHALL BE SOLELY TO LICENSEE UNDER THAT AGREEMENT AND SUBJECT TO ALL LIMITATIONS OF LIABILITY SET FORTH THEREIN.

THE LICENSEE EXPRESSLY ACKNOWLEDGES THAT DETERMINING WHETHER USE OF THE SOFTWARE CONTRADICTS ANY REGULATORY, LEGAL OPERATIONAL IMPACTS, OR ANY LIMITATIONS & REQUIREMENTS WHATSOEVER THAT GOVERN THE USE OF THE SOFTWARE IN THE REGION, JURISDICTION OR INDUSTRY IN WHICH THE LICENSEE OPERATES ARE SOLELY THE RESPONSIBILITY OF THE LICENSEE. THE LICENSOR IS NOT LIABLE IN ANY CIRCUMSTANCE, FOR ANY REGULATORY PENALTY, LEGAL ACTION, GOVERNMENTAL, OR INDUSTRY SPECIFIC ORDER OF ANY KIND. ANY DISPUTE BETWEEN ANY PERSON AND THE LICENSEE TO THEIR USE OF THE SOFTWARE IS THE SOLE RESPONSIBILITY OF THE LICENSEE WITHOUT LIMITATION.

7. Export Regulation. The Software may be subject to Canadian export control laws. You shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export licence or other governmental approval), before exporting, re-exporting, releasing, or otherwise making the Software available outside Canada.

8. Governing Law. These Terms of Use are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.