End User License Agreement

IMPORTANT – READ CAREFULLY

This End User License Agreement constitutes a legal agreement (“License Agreement”) between the End User and/or their nominated representative (“Licensee”) and Eralis Software Inc. (“Eralis”).

The License Agreement is governed by the laws of Saskatchewan, Canada, and is for the use of the Eralis Software, which includes any software, media, and accompanying on-line or printed documentation, and direct or indirect write access to the Eralis table structures (excluding the actual user-entered data contents) which collectively are Intellectual Property (“Software”) owned by Eralis.

By clicking on the accept button during the install procedure, installing, copying or otherwise using the Eralis Software or signing a copy of this agreement, the Licensee agrees to accept and be bound by the terms of this License Agreement. If Licensee does not agree to the terms of this License Agreement, Licensee should not install or use the Software and should return all unused copies in Licensee’s possession to Eralis.

By accepting the terms of this License Agreement, Licensee acknowledges that he/she has examined the Eralis Software as is and declares that it is fit for Licensee’s purpose.

1. Definitions

1.1  “Agreement” means the General Terms and Conditions outlined in this End User License Agreement, and any authorized orders for the Software pursuant to these general terms and Conditions. All such components are integral to the agreement, and collectively are referred to herein as the “Agreement”.

1.2  “Documentation” means the technical documentation supplied with the Software at the time of supply.

1.3  “End User” means the legal entity specified in the End User details section of this document and or Licensee nominated representative.

1.4  Eralis Reseller Partner means an independent entity authorized by Eralis to market, promote, distribute the Software and/or to provide services related to the Software.

1.5  “Fees” means the fees payable by Licensee related to the Software and Documentation:

1.5.1  “Initial Software License Fee” means the fee initially payable for a Perpetual License in order to use the Software and Documentation.

1.5.2  “Software Maintenance Fee (Maintenance Fee)” means the fee payable related to the Perpetual License, on initial software purchase and annually thereafter, in order to receive updates and services under Maintenance Agreement.

1.5.3  “Annual Software License Fee” means the fee payable by Licensee for an Subscription License in order to continue to use the Software and Documentation after the Renewal Date.

1.6  “License Types” means the type of license granted as determined in the Product Information section of this document, which also details the number of users, to which the specific terms of section 3 apply.

1.7  “Maintenance” means Eralis or Eralis Reseller Partner’s obligations to provide software updates and services under a Maintenance Agreement separately agreed in writing between Licensee and Eralis or such Eralis Reseller Partner.

1.8  “Modification” means a change to the Software that changes the delivered source code.

1.9  “Proprietary Information” means the Software and Documentation, tools, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications’ as well as the concepts, techniques, ideas and know-how embodied and expressed in the Software, including its structure, sequence and organization.

1.10  Named Users means any combination of users listed by permitted functionality and any other Eralis required information and licensed by Eralis to Licensee under this agreement pursuant to the order for the Software placed by Licensee or on its behalf by an Eralis Reseller Partner.

1.11  Proprietary Information means: a) with respect to Eralis, the Software and Documentation, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications; b) the concepts, techniques, ideas and know-how embodied and expressed in the Software, including their structure sequence and organization; and c) information reasonably identifiable as the confidential and proprietary information which: i) is or becomes publicly available through no act or failure of the other party; ii) was or is rightfully acquired by the other party from a source other than the disclosing party prior to receipt from the disclosing; or iii) becomes independently available to the other party as a matter of right.

1.12  “Renewal Date” means the date in which the Licensee needs to renew and pay, either:

1.12.1  the maintenance for the Perpetual License – generally due on January 1st of each year;

1.12.2  the annual subscription for the Subscription License – generally due quarterly in advance from the initial purchase of the software license.

1.13  “Software” any software, media, and accompanying on-line or printed documentation and direct or indirect access to the Eralis table structures which collectively are Eralis Intellectual Property.

2. Grant Of License

Copyright laws and international copyright treaties, as well as other intellectual property rights and treaties protect the Software. Upon the Licensee’s acceptance of this License Agreement, Eralis grants the Licensee a non-exclusive, non-transferable license to use the Software. Unless expressly indicated otherwise, each user accessing the Software must be a Named User and must limit access to those functions for which Eralis has granted the specific user license pursuant to the official order form for the Software.

Use of the Software is also subject to payment of applicable Fees in accordance with section 6 below. Right, title, ownership and interest including the intellectual property rights in and to the Software (including any modifications done for Licensee) shall remain the property of Eralis. Licensee may:

install and use the Software on the number and types of computers as per the License Type; and
copy the Software for back-up and archival purposes provided any copy must contain all of the original Software’s proprietary notices.
While Licensee remains validly licensed Licensee shall receive any updates (which may contain enhancements to the functionality and improve the performance of the Software) as issued by Eralis from time to time.

Third Party Software Products

This license does not grant Licensee any rights in relation to any third-party software products required in conjunction with the Software, for example third party database products. Licensee is responsible for obtaining the necessary licenses for such third party software products as required. Licensee acknowledges that the licensing scheme for third party software products may not correspond with the licensing scheme for the Software. This license does not include licenses to any 3rd Party database
server software that is required to correctly operate the Software.

3. License Types

The Software is licensed through a number of different license types.

3.1  A license may be granted as a single License Type. License Types may not be mixed.

3.2  Perpetual License is a license for use of the software in perpetuity, following payment of the Initial Software License Fee.

3.3  Subscription License is a license to use the software for a defined period of time, following payment of the Annual Software License Fee, and subject to subsequent renewals on the Renewal Date. The registration code(s) expire 12 months after being issued and payment will need to be received prior to the annual anniversary to continue using the software and documentation.

3.4  Evaluation Client Access License. If Licensee has obtained permission from Eralis to evaluate the Software, Licensee may install the Software on a temporary basis for evaluation purposes only. The evaluation period is limited to 60 days from the date the Software is installed (“Evaluation Period”). Upon completion of the Evaluation Period the license to use the Software expires. During the Evaluation Period, the software is provided on an “as is” basis and you assume the entire risk as to the quality and performance of the software. If Licensee has obtained permission from Eralis to evaluate a multi-user version of the Software, Licensee may, during the Evaluation Period, install the Software on a single computer and connect up to five (5) simultaneous users to the Software. If Licensee obtained permission from Eralis to evaluate a single user version of the Software, Licensee may install and use the Software on a single computer only.

4. Verification

Eralis shall be permitted to audit (at least once annually and in accordance with Eralis standard procedures) the usage of Eralis Proprietary Information. In the event an audit reveals that Licensee Underpaid any Fees to Eralis or the Eralis Reseller, Licensee shall pay such underpaid fees based on Eralis’ list of prices and conditions in effect at the time of the audit.

5. Eralis Reseller Partner Relationship/Price and Payment

Licensee acknowledges and agrees that the Eralis Reseller Partner through which Licensee has arranged for the procurement of this Agreement or from which Licensee receives any services related to the Software is not the agent of Eralis. The Eralis Reseller Partner is an independent company, person or entity with no authority to bind Eralis or to make representations or warranties on behalf of Eralis. Eralis makes no representations or warranties as to such authorized reseller, or any other third party, related to the performance of the products or services of such entities, and fully disclaims any such warranties in accordance with Section 8.1. In addition, Licensee expressly acknowledges and agrees that Eralis is entitled to rely on written information from Eralis Reseller Partner in making any determinations as to termination of this Agreement relative to Section 6.1 and Eralis shall have no liability to Licensee for any actions thereunder based on Eralis’ reasonable belief in the accuracy or reliability of such information.

The parties acknowledge and agree that Licensee will transact for the Software from an Eralis Reseller Partner and, upon full payment of the license, taxes, maintenance and other fees to such Eralis Reseller/Partner, will owe no fees directly to Eralis under this agreement.

6. Term

6.1.  Term: This Agreement and the license granted hereunder shall become effective as of the date set forth below and shall continue in effect thereafter unless terminated upon the earliest to occur of the following: a) thirty (30) days after Licensee gives Eralis written notice of Licensee’s desire to terminate this Agreement, for any reason, but only after payment of all license, maintenance and other fees then due and owing; b) thirty (30) days after Eralis gives Licensee notice of breach of any provision of the Agreement (other than Licensee’s breach of its obligations under Sections 7 or 11, which breach shall result in immediate termination), including more than thirty (30) days delinquency in Licensee’s payment of any money due hereunder unless Licensee has cured such breach during such thirty (30) day period; c) immediately if Licensee files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors; d) thirty (30) days after Eralis gives Licensee notice of Licensee’s breach of any obligation to pay money due to Eralis Reseller Partner for the Software License. For the avoidance of any doubt, termination of the Agreement shall strictly apply to all licenses under the Agreement, its appendices, order forms, schedules, addenda and order documents and any partial termination of the Agreement by Licensee shall not be permitted in respect of any part of the Agreement, its appendices, order forms, schedules, addenda or order documents.

6.2.  End of Terms Duties: Upon any termination hereunder, Licensee and its Affiliates shall immediately cease Use of all Eralis Proprietary Information. Within thirty (30) days after any termination, Licensee shall deliver to Eralis or destroy all copies of the Eralis Proprietary Information in every form. Licensee agrees to certify in writing to Eralis that it and each of its Affiliates has performed the foregoing. Sections 5, 6.2, 7, 9, 10, 12.3, 12.4 and 12.6. shall survive such termination. In the event of any termination hereunder, Licensee shall not be entitled to any refund of any payments made by Licensee.

7. Proprietary Rights

7.1  Protection of Proprietary Information: Licensee shall not copy, translate, disassemble, or decompile, the Software. Except for the rights set forth below, Licensee is not permitted to make derivative works of the Software and ownership of any unauthorized derivative works shall vest in Eralis. Eralis and Licensee agree to take all reasonable steps and the same protective precautions to protect the Proprietary Information from disclosure to the third parties as with its own proprietary and confidential information. Neither party shall, without the other party’s prior written consent, disclose any of the Proprietary Information of the other party to any person, except to its bona fide individuals whose access is necessary to enable such party to exercise its rights hereunder. Each party agrees that prior to disclosing any Proprietary Information of the other party will be bound by the same terms as specified in this Section 7 with respect to the Proprietary Information.

7.2  Modifications: Licensee shall not make any Modifications of any kind to the Software or create any derivative works of the Software without Eralis’ prior written consent. Licensee expressly agrees that any Modifications of the Software developed by Eralis or Licensee (unauthorized or otherwise) and all rights associated therewith shall become and will be the property of Eralis and that Licensee will not grant, either expressly or by implication, any rights title, interest or licenses to the Modifications to any third party. Licensee shall provide complete source code for all Modifications to Eralis.

Licensee agrees that it will not modify any third-party software provided hereunder unless expressly authorized in writing by such third party vendor. Licensee agrees to execute those documents reasonable necessary to secure Eralis’ rights in the foregoing. Eralis retains the right to independently develop enhancements to the Software and Licensee agrees not to take any action that would limit Eralis’ sale, assignment, licensing or use of its own Software or Modifications or enhancements thereto. Licensee agrees not to take any action that would limit Eralis’ independent development, sale, assignment, licensing or use of its own Software or Modifications.

Licensee agrees not to use the source code, third party add-on or own developed tools, to circumvent licensing terms in any manner that is detrimental to the interests of Eralis.

8. Performance Warranty / Maintenance

8.1  Warranty: Eralis warrants that the Software will substantially conform to the functional specifications contained in the Documentation for six (6) months following delivery. The warranty shall not apply: a) if the Software is not used in accordance with the Documentation; or b) if the defect is caused by a Modification, Licensee, third-party software or third party database. Eralis does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors that do not materially affect such performance, or that the applications contained in the Software are designed to meet all of Licensee’s business requirements.

8.2  Express Disclaimer: Eralis disclaims all other warranties express or implied, including without limitation, any implied warranties or merchantability or fitness for a particular purpose except to the extent that any warranties implied by law cannot be validly waived.

8.3  Maintenance: This agreement does not provide for Maintenance, support or any other services related to the Software. Any such services shall be subject either to a) a separate agreement between Licensee and the provider of such services (including without limitation an Eralis Reseller Partner, and Eralis shall not have any liability for the provision of such services hereunder; or b) a separate agreement, Software order form or appendix to this Agreement between Licensee and Eralis.

9. Third Party Claims

9.1  Infringement and Defense of Licensee: Eralis shall defend Licensee against claims brought against Licensee in the Territory by any third party alleging that Licensee’s Use of the Software, in accordance with the terms and conditions of this Agreement, constitutes a direct infringement or misappropriation of a patent claim(s), copyright or trade secret rights, and Eralis will pay damages finally awarded against Licensee (or the amount of any settlement Eralis enters into) with respect to such claims. This obligation of Eralis shall not apply if the alleged infringement or misappropriation results from Use of the Software in conjunction with any other software, an apparatus other than a Designated Unit, failure to use an update promptly provided by Eralis if such infringement or misappropriation could have been avoided by use of the update, or unlicensed activities. This obligation of Eralis also shall not apply if Licensee fails to timely notify Eralis in writing of any such claim. Eralis is permitted to control fully the defense and any settlement of any such claim as long as such settlement shall not include a financial obligation on Licensee. In the event Licensee declines Eralis’ proffered defense, or otherwise fails to give full control of the defense to Eralis’ designated counsel, then Licensee waives Eralis’ obligations under this Section 8.1. Licensee shall cooperate fully in the defense of such claim and may appear, at its own expense, through counsel reasonably acceptable to Eralis. Eralis expressly reserves the right to cease such defense of any claim(s) in the event the Software is no longer alleged to infringe or misappropriate, or is held not to infringe or misappropriate, the third party’s rights. Eralis may settle or mitigate damages arising from any claim or potential claim, by substituting alternative substantially equivalent non-infringing programs and supporting documentation for the Software. Licensee shall not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation of the Software that is prejudicial to Eralis’ rights.

9.2  THE PROVISIONS OF THIS SECTION 9 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF ERALIS TO LICENSEE, AND IS LICENSEE’S SOLE REMEDY WITH RESPECT TO THE INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

10. Limitations of Liability

10.1  Not Responsible: Eralis will not be responsible under this Agreement a) if the Software is not used in accordance with the Documentation; or b) if the defect or liability is caused by Licensee, a Modification, or third-party software; or c) if the Software is used in conjunction with any third party software for which the Licensee lacks sufficient rights from the third party vendor for such use; or d) for any Licensee activities not permitted under this Agreement. Eralis SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM INHERENTLY DANGEROUS USE OF THE SOFTWARE AND/OR THIRD-PARTY SOFTWARE LICENSED HEREUNDER.

10.2  Exclusion of Damages; Limitation of Liability: ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, EXCEPT FOR (I) DAMAGES RESULTING FROM (a) UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION; OR (b) DEATH OR PERSONAL INJURY ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (II) ERALIS’ OBLIGATIONS UNDER SECTION 8.1; OR (III) ERALIS RIGHT TO COLLECT UNPAID FEES, UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE NATURE OF ANY CLAIM SHALL ERALIS, OR LICENSEE BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT IN EXCESS OF THE PAID LICENSE FEES FOR THE SOFTWARE DIRECTLY CAUSING THE DAMAGES OR BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, LEGAL FEES, COURT COSTS, INTEREST OR EXEMPLARY OR PUNITIVE DAMAGES.

10.3  Exclusions and Limitation for Third Party Software: SUBJECT TO THE EXCLUSION OF DAMAGES STATED IN SECTION 10.2 AND WITH RESPECT TO THIRD PARTY SOFTWARE, UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE NATURE OF ANY CLAIM SHALL ERALIS BE LIABLE FOR AN AMOUNT IN EXCESS OF THE PAID LICENSE FEES FOR THE THIRD PARTY SOFTWARE DIRECTLY CAUSING THE DAMAGES.

10.4  The provisions of this Agreement allocate the risks between Eralis and Licensee. The license fees reflect this allocation of risk and the limitations of liability herein.

11. Assignment

Licensee may not, without ERALIS’ prior written consent, assign, delegate, pledge, or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, or the ERALIS Proprietary Information, to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. ERALIS may assign this Agreement to ERALIS SE or any other entity within the ERALIS group of companies.

12. General Provisions

12.1  Severability: It is the intent of the parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.

12.2  No Waiver: If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.

12.3  Regulatory Matters: The Software, Documentation and ERALIS Materials are subject to the export control laws of various countries, including without limit the laws of Canada. Licensee agrees that it will not submit the Software, Documentation or other ERALIS Materials to any government agency for licensing consideration or other regulatory approval without the prior written consent of ERALIS, and will not export the Software, Documentation and ERALIS Materials to countries, persons or entities prohibited by such laws. Licensee shall also be responsible for complying with all applicable governmental regulations of the country where Licensee is registered, and any foreign countries with respect to the use of the Software, Documentation or other ERALIS Materials by Licensee and/or its Affiliates.

12.4  Confidential Terms and Conditions; Publicity: Licensee shall not disclose the terms and conditions of this Agreement or the pricing contained therein to any third-party. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other, except that Licensee agrees that ERALIS may use Licensee’s name in customer listings or, at times mutually agreeable to the parties, as part of ERALIS’s marketing efforts (including without limitation reference calls and stories, press testimonials, site visits).

12.5  Arbitration: Except for the right of either party to apply to a court of competent jurisdiction for an interim or interlocutory injunction or other provisional remedy to preserve the status quo or prevent irreparable harm pending final award of the arbitrator, any controversy or claim arising out of or relating to this Agreement, other than as to the ownership of any intellectual property right(s) in Proprietary Information, shall be finally settled by arbitration in Saskatoon, Saskatchewan, in accordance with the Arbitrations Act, 1992 of Saskatchewan, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. If the parties fail to appoint the arbitrator within ten (10) days of service of a notice of intention to arbitrate (which notice shall include a description of the claim, a concise statement of the facts supporting it and the relief sought), either party may apply to a judge of the Courts of Saskatchewan for the appointment of such arbitrator. The written decision and reasons of the arbitrator shall be communicated to the parties no later than thirty (30) days after the close of argument in the arbitration.

12.6  Governing Law; Limitations Period: This Agreement and any claims arising out of or relating to this Agreement and its subject matter shall be governed by and construed under the laws of in force in the province of Saskatchewan without reference to its conflicts of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Canadian law, rules, and regulations, Canadian law, rules, and regulations shall prevail and govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Licensee must initiate a cause of action for any claim(s) arising out of or relating to this Agreement and its subject matter within one (1) year from the date when Licensee knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).

12.7  Notices: All notices or reports which are required or may be given pursuant to this Agreement shall be in writing and shall be deemed duly given when delivered to the respective executive offices of ERALIS and Licensee at the addresses first set forth above. Where in this Section 11.7 or elsewhere in this Agreement written form is required, that requirement can be met by facsimile transmission, exchange of letters or other written form.

12.8  Force Majeure: Any delay or non-performance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.

12.9  Entire Agreement: This Agreement constitutes the complete and exclusive statement of the agreement between ERALIS and Licensee, and all previous representations, discussions, and writings are merged in, and superseded by this Agreement and the parties disclaim any reliance on any such representations, discussions and writings. This Agreement may be modified in writing and signed by both parties. This Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Licensee to ERALIS. This Agreement shall prevail over any additional, conflicting or inconsistent terms and conditions which may appear in any clickwrap end user agreement included in the Software. Signatures sent by electronic means (facsimile or scanned and sent via e-mail) shall be deemed original signatures. This Agreement does not create any partnership, joint venture or principal and agent relationship.

12.10  Hierarchy: The following order of precedence shall be applied in the event of any conflict or inconsistency between provisions of the components of this Agreement: a) any appendices to the Agreement; b) any authorized orders for the Software placed with ERALIS; c) the terms and conditions of this License Agreement.

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END OF AGREEMENT 2018.04.11v6