Software License Agreement

This Software License Agreement (the “Agreement“), effective as of the date of execution of this Agreement or installation of the MPA Tools software (the “Licensed Software”), whichever occurs first (the “Effective Date“), is entered into by and between Veles Software Ltd., an Alberta corporation (“Licensor“) and the person, corporation, or other legal entity receiving and installing the Licensed Software (“Licensee“, together with Licensor, the “Parties“, and each, a “Party“).

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. THIS AGREEMENT APPLIES TO ALL TRIAL VERSIONS OF THE LICENSED SOFTWARE AS WELL AS TO ALL FULL VERSIONS OF THE LICENSED SOFTWARE. BY CLICKING THE “ACCEPT” BUTTON, CHECKING THE “ACCEPT” BOX ON THE ORDER FORM, OR OTHERWISE ACCEPTING THIS AGREEMENT IN THE METHOD PRESENTED TO YOU, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 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 DOWNLOAD OR 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.

In consideration of the mutual promises, terms, and conditions in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:

1. Definitions. Capitalized terms have the meanings set forth or referred to in this Section 1:

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Authorized User” means an employee, contractor, or agent of the Licensee authorized by the Licensee to use the Licensed Software and who has agreed to be bound by the terms of this Agreement.

“Controlled Technology” means any software, documentation, technology or other technical data, or any products that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any Law.

“Documentation” means any and all manuals, instructions and other documents and materials that Licensor provides or makes available to Licensee in any form or medium which describe the functionality, components, features or requirements of the Licensed Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

“IP 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, trade-mark, 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.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, provincial, territorial, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“Loss” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees, disbursements and charges and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Open-Source Components” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.

“Permitted Use” means use of the Licensed Software by an Authorized User for the benefit of Licensee in the ordinary course of its internal business operations.

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

“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors (as applicable).

“Term” has the meaning set forth in the Section entitled “Term and Termination”.

“Renewal Term” has the meaning set forth in the Section entitled “Term and Termination”.

“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Licensor, including any third-party: (a) documents, data, content or specifications; (b) Open-source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.

2. License.
   1. License Grant. Subject to the terms and conditions of this Agreement, and conditional on Licensee’s and its Authorized Users’ compliance with this Agreement, Licensor grants to Licensee a non-exclusive, non-sublicensable, and non-transferable, limited license to use the Licensed Software and Documentation solely for the Permitted Use during the Term.
   2. Scope of Licensed Access and Use. Licensee may install, use, and run the number of copies of the Licensed Software on up to the number of devices at a time, or on Licensee’s network, or by remote access from any other device, for use by up to the number of Authorized User(s) at a time, as set out in the purchase order confirmation (the “Purchase Order Confirmation”) sent by Licensor to Licensee at the time of purchase of the licenses and access to the Licensed Software by Licensee. The total number of licenses and Authorized Users shall not exceed the number set out in the Purchase Order Confirmation, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the license fees payable under this Agreement.
   3. Licensee may make one copy of the Licensed Software solely for testing, disaster recovery, or archival purposes. Any copy of the Licensed Software made by Licensee: (i) will remain the exclusive property of Licensor; (ii) be subject to the terms and conditions of this Agreement; and (iii) must include all copyright or other IP Rights notices contained in the original.
   4. Open-Source Licenses. The Licensed Software may include Open-Source Components licensed under an open-source general public license agreement of one or more jurisdictions or organizations as described in this Agreement or as posted on Licensor’s website, or as otherwise made known to Licensee (each, an “Open-Source License“). Any use of the Open-Source Components by Licensee shall be governed by, and subject to, the terms and conditions of the Open-Source License(s).
3. Use Restrictions. Except as this Agreement expressly permits, and subject to the Open-Source Licenses, Licensee shall not, and shall not permit any other Person to:
   1. copy the Licensed Software, in whole or in part;
   2. modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Licensed Software;
   3. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Licensed Software to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
   4. bypass or breach any security device or protection used for or contained in the Licensed Software or Documentation;
   5. remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trade-marks, terms of the Documentation, warranties, disclaimers, or IP Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Licensed Software or Documentation;
   6. use the Licensed Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any IP Right or other right of any Person, or that violates any applicable Law;
   7. use the Licensed Software for purposes of: (i) benchmarking or competitive analysis of the Licensed Software; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to Licensor’s detriment or commercial disadvantage;
   8. use the Licensed Software in or in connection with the design, construction, maintenance, operation or use of any hazardous environments, 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 Licensed Software could lead to personal injury or severe physical or property damage; or
   9. use (i) the Licensed Software or Documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by this Agreement or (ii) any Open-Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open-Source License.
4. Data and Privacy.
   1. Use of the Licensed Software is subject to Licensor’s privacy policy (the “Privacy Policy”), as amended from time to time, which can be viewed at Licensor’s website or a successor website address. All data collected by Licensor regarding Licensee’s use of the Licensed Software, including usage data and information regarding Licensee’s devices (“Data“) and how Licensor may use Data, are subject to the terms of the Privacy Policy and the terms of this Agreement.
   2. Licensor does not claim any intellectual property rights over Licensee’s content, including photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted, or exhibited on or in connection with the Licensed Software (“Licensee Materials“). Licensee Materials and all Licensee Materials remain the property of Licensee and Licensee is responsible for all Licensee Materials. Licensee represents and warrants that for the duration of the Term, it has (and will have) all the rights necessary for Licensee Materials that are uploaded, stored, or shared on or through the Licensed Software and that the collection, use, and retention of Licensee Materials will not violate any law or rights of others. Licensee is responsible for compliance of the Licensee Materials with any applicable Laws and the terms of this Agreement.
   3. Licensor owns and reserve all rights to information, data, and other content (collectively, “Resultant Data”) that is derived by or through the Licensed Software, including from processing Data and Licensee Materials, that is sufficiently different from Licensee Materials or Data that it cannot be reverse engineered or otherwise personally identifiable.
5. Confidentiality.
   1. Confidential Information. In connection with this Agreement, each Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“) Confidential Information. Subject to subsection (b) below, “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, and pricing and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, the Licensed Software, Resultant Data, and Documentation are the Confidential Information of Licensor.
   2. Exclusions and Exceptions. Confidential Information does not information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure before such information’s 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, to the Receiving Party’s knowledge, 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.
   3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for the term of this Agreement and for 2 years from the date of its termination:
      1. 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;
      2. except as may be permitted under the terms and conditions of this Section, not disclose or permit access to Confidential Information other than to its Representatives who: (A) 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; (B) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section; and (C) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section;

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

1. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
2. ensure its Representatives’ compliance with and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section.

1. Trade Secrets. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 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.
2. 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: (i) promptly, and before such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek an injunction, protective order or other remedy or waive its rights under this Section; and (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking an injunction, protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, 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 competent authority that such Confidential Information will be afforded confidential treatment.

6. Fees and Payment.
   1. License Fees. In consideration of the rights granted to Licensee under this Agreement, Licensee shall pay to Licensor the license fees set out in the Purchase Order Confirmation in accordance with the terms of this Section.
   2. License Fees on Renewal. If the Term is renewed for any Renewal Term(s), Licensee shall pay the then-current standard license fees that Licensee charges for the Licensed Software during the applicable Renewal Term.
   3. Additional Fees and Expenses. In consideration of Licensor providing installation, training, and other services under this Agreement, Licensee shall pay to Licensor the fees described at the time of purchase of such services and shall reimburse Licensor for out-of-pocket expenses incurred by Licensor in connection with performing these services, in accordance the terms of this Section.
   4. Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all goods and services, harmonized sales, sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, provincial or territorial governmental or regulatory authority on any amounts payable by Licensee under this Agreement, other than any taxes imposed on Licensor’s income.
   5. Payment. Licensee shall pay all license fees and other amounts due and owing under this Agreement on or before the payment due date set out in the Purchase Order Confirmation. Licensee shall make all payments in the currency set out in the Purchase Order Confirmation by the payment method specified by Licensor from time to time.
   6. Late Payment. If Licensee fails to make any payment when due, then, in addition to all other remedies that may be available to Licensor:
      1. Licensor may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly (which is equivalent to 19.56% per annum compounded annually);
      2. Licensee shall reimburse Licensor for all reasonable costs incurred by Licensor in collecting any late payment of amounts due or related interest, including legal fees, disbursement and charges and collection agency fees; and

• if such failure continues for 14 days following written notice by Licensor, Licensor may: (A) disable Licensee’s use of the Licensed Software (including by means of a disabling code, technology or device); (B) withhold, suspend or revoke its grant of a license under this Agreement; or (C) terminate this Agreement.

1. No Deductions or Set-offs. All amounts payable to Licensor under this Agreement shall be paid by Licensee to Licensor in full without any set-off, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

7. Security Measures. The Licensed Software may contain technological measures designed to prevent unauthorized or illegal use of the Licensed Software. Licensee acknowledges and agrees that: (a) Licensor may use these and other lawful measures to verify Licensee’s compliance with the terms of this Agreement and enforce Licensor’s rights, including all IP Rights, in and to the Licensed Software; (b) Licensor may deny any Person access to, or use of, the Licensed Software if Licensor, in its sole discretion, believes that Person’s use of the Licensed Software would violate any provision of this Agreement, regardless of whether Licensee designated that Person as an Authorized User; and (c) Licensor and its Representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Licensee’s computers, systems and software, that Licensor may gather periodically to improve the performance of the Licensed Software or develop Maintenance Releases. This information will be treated in accordance with Licensor’s Privacy Policy.
8. Intellectual Property Rights.
   1. Ownership. Licensee acknowledges and agrees that:
      1. the Licensed Software and Documentation are licensed, not sold, to Licensee by Licensor and Licensee does not and will not have or acquire under or in connection with this Agreement any ownership interest in the Licensed Software or Documentation, or in any related IP Rights;
      2. Licensor and its licensor(s), if any, are and will remain the sole and exclusive owner(s) of all right, title and interest in and to the Licensed Software and Documentation, including all IP Rights in or to the same, subject only to the rights of third parties in Open-Source Components and the limited license granted to Licensee under this Agreement; and

• Licensee hereby unconditionally and irrevocably assigns to Licensor or Licensor’s designee, its entire right, title and interest in and to any IP Rights that Licensee may now or hereafter have in or relating to the Licensed Software or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.

1. Licensee Co-operation and Notice of Infringement. Licensee shall, during the Term:
   1. take all reasonable measures to safeguard the Licensed Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access;
   2. at Licensor’s expense, take all such steps as Licensor may reasonably require to assist Licensor in maintaining the validity, enforceability and Licensor’s ownership of the IP Rights in the Licensed Software and Documentation;

• promptly notify Licensor in writing if Licensee becomes aware of:
  1. any actual or suspected infringement, misappropriation or other violation of Licensor’s IP Rights in or relating to the Licensed Software or Documentation; or
  2. any claim that the Licensed Software or Documentation, including any production, use, marketing, sale or other disposition of the Licensed Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the IP Rights or other rights of any Person; and
  3. fully co-operate with and assist Licensor in all reasonable ways in the conduct of any claim, action, proceeding or suit (each, an “Action“) by Licensor to prevent or abate any actual or threatened infringement, misappropriation or violation of Licensor’s rights in, and to attempt to resolve any claims relating to, the Licensed Software or Documentation, including having Licensee’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.

1. No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any IP Rights or other right, title or interest in or to any of the Licensed Software or Documentation.

9. Term and Termination.
   1. Term. The initial term of this Agreement commences as of the Effective Date and will continue in effect until one year from such date unless terminated earlier under any of the Agreement’s express provisions (the “Term“).
   2. Renewal Term. This Agreement will automatically renew for additional successive one year terms unless earlier terminated under any of the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 30 days before the expiration of the then-current term (each, a “Renewal Term” and, collectively, together with the initial Term, the “Term“).
   3. Termination. This Agreement may be terminated at any time by the Licensor:
      1. effective on notice to Licensee, if Licensee fails to pay any amount when due under this Agreement;
      2. effective immediately, if the Licensee: (A) is dissolved, liquidated or wound-up or takes any corporate action for such purpose; (B) becomes insolvent or is generally unable to pay its debts as they become due; (C) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any federal or foreign bankruptcy or insolvency Law; (D) makes or seeks to make a general assignment for the benefit of its creditors; or (E) applies for, or consents to, the appointment of a trustee, receiver, receiver-manager or custodian for all or a substantial part of its property; or

• effective on notice to the Licensee, if the Licensee breaches this Agreement.

1. Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement:
   1. all rights, licenses and authorizations granted to licensee hereunder will immediately terminate and Licensee shall: (A)immediately cease all use of and other activities with respect to the Licensed Software and Documentation; (B) deliver to Licensor, or at Licensor’s request destroy, and permanently erase from all devices and systems Licensee directly or indirectly controls, the Licensed Software, the Documentation and the Licensor’s Confidential Information, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials; (C) certify to Licensor that it has complied with the requirements of this Section; and
   2. all amounts payable by Licensee to Licensor of any kind under this Agreement are immediately payable and due.
2. Surviving Terms. The provisions entitled as follows, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Definitions, Confidentiality, Intellectual Property Rights, this Section, Representations and Warranties, Disclaimer of Warranties, Indemnification, Limitations of Liability, and Miscellaneous.

10. Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that:
    1. it is formed and validly existing as a legal entity under the Laws of the jurisdiction of its formation;
    2. it has the power and capacity to enter into and perform its obligations and grant the rights, licenses and authorizations it grants and is required to grant under this Agreement;
    3. the execution of this Agreement has been duly authorized by all necessary action of such Party; and
    4. when executed and delivered by both Parties, this Agreement will be a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
11. DISCLAIMER OF WARRANTIES. ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS.” LICENSOR HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL CONDITIONS AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION, OR ANY OTHER LICENSOR OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY CONDITION, REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
12. Indemnification.
    1. Licensee Indemnification of Licensor. Licensee shall indemnify, defend and hold harmless Licensor and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and assigns (each, including Licensor, a “Licensor Indemnitee“) from and against any and all Losses incurred by the Licensor Indemnitee in connection with any Action by a third party (other than an Affiliate of a Licensor Indemnitee) to the extent that such Losses arise out of or relate to any allegation:
       1. that any IP Right or other right of any Person, or any Law, is or will be infringed, misappropriated or otherwise violated by any:
          1. use or combination of the Licensed Software by or on behalf of Licensee or any of its Representatives with any hardware, software, system, network, service or other matter whatsoever that is neither provided by Licensor nor authorized by Licensor in this Agreement and the Documentation; and
          2. information, materials or technology or other matter whatsoever directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated or used with, as part of, or in connection with the Licensed Software or Documentation;
       2. of or relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant or obligation under this Agreement;

• of or relating to negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Representatives with respect to the Licensed Software or Documentation or otherwise in connection with this Agreement; or

1. of or relating to use of the Licensed Software or Documentation by or on behalf of Licensee or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Licensor’s instructions.

1. Indemnification Procedure. A Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified under this Section. The Party seeking indemnification (the “Indemnitee“) shall cooperate with the other Party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced by such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

13. Limitations of Liability.
    1. EXCLUSION OF DAMAGES. IN NO EVENT WILL LICENSOR, OR ANY OF ITS LICENSORS (IF ANY), SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE 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, FOR ANY (i) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (ii) LOSS OF GOODWILL OR REPUTATION, (iii) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR OPEN-SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (iv) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (v) COST OF REPLACEMENT GOODS OR SERVICES, OR (vi) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF LICENSOR AND ITS LICENSORS (IF ANY), SUPPLIERS AND SERVICE PROVIDERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL OF THE AMOUNTS PAID TO LICENSOR UNDER THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1,000, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    3. Mitigation. If the Licensed Software, or any part of the Licensed Software, is, or in Licensor’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party IP Right, or if Licensee’s use of the Licensed Software is enjoined or threatened to be enjoined, Licensor may, at its option and sole cost and expense:
       1. obtain the right for Licensee to continue to use the Licensed Software materially as contemplated by this Agreement;
       2. modify or replace the Licensed Software, in whole or in part, to seek to make the Licensed Software non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Licensed Software under this Agreement; or

• if none of the remedies in this Section is reasonably available to Licensor, terminate this Agreement, in its entirety or with respect to the affected part or feature of the Licensed Software, effective immediately on written notice to Licensee, in which event:
  1. Licensee shall cease all use of the Licensed Software and Documentation immediately on receipt of Licensee’s notice; and
  2. provided that Licensee fully complies with its post-termination obligations, Licensor shall promptly refund to Licensee, on a pro ratabasis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.

1. Sole Remedy. THIS SECTION CONTAINS LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE LICENSED SOFTWARE AND DOCUMENTATION) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES, ANY IP RIGHTS OF ANY THIRD PARTY.

14. Export Regulation. Licensee shall not itself, or permit any other Person to, export, re-export or release, directly or indirectly any Controlled Technology to any country, jurisdiction or Person to which the export, re-export or release of Controlled Technology (a) is prohibited by applicable Law or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).
15. Force Majeure.
    1. No Breach or Default. In no event will Licensor be liable or responsible to Licensee, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent that such failure or delay is caused by any circumstances beyond Licensor’s reasonable control (a “Force Majeure Event“), including flood, fire, earthquake, tsunami, explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labour stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Licensor may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
    2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Licensor shall give prompt written notice to Licensee stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
16. Miscellaneous.
    1. Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices to this Agreement; (y) 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 (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to 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 exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
    2. Currency. Unless other stated, all dollar amounts referred to in this Agreement are stated in Canadian dollars.
    3. Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
    4. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other party in any manner whatsoever.
    5. Public Announcements. Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trade-marks, service marks, trade names, logos, domain names or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party; provided that Licensor may, without Licensee’s consent, include Licensee’s name or other indicia in its lists of Licensor’s current or, as the case may be, former customers of Licensor in promotional and marketing materials.
    6. Notices. Any notice, request, consent, claim, demand, waiver or other communication under this Agreement will have legal effect only if in writing and addressed to a party at the address or addresses designated by such Party from time to time in accordance with this Section. Notices sent in accordance with this Section will be deemed effectively given: (i) when received, if delivered by hand, with signed confirmation of receipt; (ii) when received, if sent by a nationally recognized overnight courier, signature required; (iii) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (iv) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
    7. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
    8. Entire Agreement. This Agreement, together with any other schedules or documents incorporated by reference, is the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, conditions, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments and appendices and any other documents incorporated by reference, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments and appendices; (b) second, the exhibits, schedules, attachments and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated by reference.
    9. 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 without Licensor’s prior written consent. Any purported assignment, delegation or transfer in violation of this Section is void. This Agreement is binding on and enures to the benefit of the Parties hereto and their respective permitted successors and assigns.
    10. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted 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.\
    11. Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing and signed or executed by each Party. 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 rights, 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.
    12. Severability. If any 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.
    13. Governing Law; Forum. This Agreement is governed by and construed in accordance with the Laws of Alberta and the federal Laws of Canada applicable therein. Any action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the courts of Alberta, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such Action. Service of process notice or other document by mail to such Party’s address set forth herein will be effective service of process for any Action brought in any such court.
    14. Equitable Remedies. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under the Sections entitled “Use Restrictions”, “Confidentiality”, or “Intellectual Property Rights” would cause irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.