VSD End User License Agreement These license terms (agreement) are an agreement between VeroSoft Design (VSD) and you. Please read these terms carefully. Except as otherwise expressly specified, this agreement applies to all of VSD product, which includes the media on which you received it, if any. It also applies to any VSD update, fix, support, service for the product, unless other terms accompany those items. If so, those terms apply. By installing, having installed, subscribing to, or using the product, you accept this agreement (including any modifications made to them from time to time). If you do not accept this agreement, do not install, have installed, subscribe to, or use the product. If an individual enters into this agreement on behalf of a legal entity, that individual represents that he or she has the authority to bind that entity to this agreement. Notice Regarding Subscription Validation. Servers on which the product is installed may periodically provide information to verify that the product is properly licensed and that the term has not expired. This information includes the customer subscription identifier, product name, license serial number, product version number, and date of last use. Aggregated data may be used to evaluate the effectiveness of our validation features, will also be stored in the United States and may be retained indefinitely. By using the product, you consent to the transmission of the information described in this paragraph. If you comply with this agreement, you have the rights below for each license you acquire for the applicable product. 1. Overview a. Product. The product may include o server product o client product that can be installed on devices and/or used with the server product o additional components that may be separately licensed o and any updates or supplements for the product. b. Licensing. The product is licensed based on o the number of copies of a solution that you install on premises or use on a hosted basis o the number of your users that access the solution o and additional components you license. 2. Definitions. o affiliate means any legal entity that directly or indirectly owns, is directly or indirectly owned by, or that is directly or indirectly under common ownership with a party to this agreement. o business process outsourcing means the contracting of a specific critical or non-critical business task, function or process to a third-party service provider, where the services provided include direct or indirect access to the product. o CAL means client access license. o client product means the components of the product that allow a device to access or use the server product or to use certain aspects of the server product. o device means a single personal computer, workstation, terminal, handheld computer, mobile phone, personal digital assistant, or other electronic device. o direct access occurs when any user logs on to the product through a client. o solution means the functional components of the product o external user means your users that are not included in the definition of you. o full user means a user who has unrestricted access to all of the functionality in the server product including setting-up, administering and managing all parameters or functional processes across the solution. o Instance means an image of product that is created by executing the product’s setup or install procedure or by duplicating an existing Instance. o internal business purposes means managing your business, but not that of an independent third party. o Limited User means a user who accesses your solution directly or indirectly for purposes of accessing only certain functions. Any access beyond these limitations requires a Full User. o operating system environment or OSE means all or part of an operating system Instance, or all or part of a virtual (or otherwise emulated) operating system Instance which enables separate machine identity (primary computer name or similar unique identifier) or separate administrative rights, and instances of applications, if any, configured to run on the operating system Instance or parts identified above. There are two types of OSEs, physical and virtual. A physical hardware system can have one Physical OSE and/or one or more Virtual OSEs. o ownership means more than 50% ownership. o partner means the entity that has signed a partner agreement with VSD authorizing it to market and distribute the product. o physical OSE means an OSE that is configured to run directly on a physical hardware system. The operating system Instance used to run hardware virtualization product (e.g. Microsoft Hyper-V Server or similar technologies) or to provide hardware virtualization services (e.g. Microsoft virtualization technology or similar technologies) is considered part of the Physical OSE. o server means a physical hardware system capable of running server product. o Server Farm means a single data center or multiple data centers o server product means the components of the product that provides services or functionality on your server. o System Administrator User means a user accessing the product, solely to install, configure and maintain the server product, including management of user rights. o virtual OSE means an OSE that is configured to run on a virtual hardware system. o you means the legal entity that has agreed to this agreement, your affiliates, and each of your, and your affiliates’, employees, contractors, agents and suppliers. 3. Installation and use rights a. Server Product. You must purchase a server product license to use the server product. You may install an unlimited number of copies of the server product to access your solution. However, you may only use the number of copies that your license key permits. b. Client Product. You may only use the client product with the solution. You may install an unlimited number of copies of the client product to access your solution. The client product may be used only by the number of licensed users that your license key permits. c. Additional Components. If additional components are available to you, you must obtain a separate license for each solution if you wish to run an additional component for multiple solutions. 4. Types of users licenses. Except as otherwise specified, the types of user licenses for the product are as follows: a. CALs. In addition to the server product license, you must acquire and assign a CAL to each user that accesses the solution directly or indirectly. You need a CAL for each user that directly or indirectly accesses the solution through a third party application. User licenses are specific to a solution and may not be used with or shared among different solutions. Types of CALs. There are two types of CALs: Full CALs and Limited CALs. Type of CALs can be available or not depending on the solution o A Full CAL is a license that entitles a user to perform the tasks of a Full User. o A Limited CAL is a license that entitles a user to perform only the tasks of a Limited User. b. Concurrent CALs are licenses that allow any user to access the solution. The number of concurrent CALs licensed refers to the maximum number of users that may access the solution simultaneously. You may select the Full CAL or Limited CAL as concurrent CAL types. c. User CALs are licenses that are specific to each user and may not be shared with other users. You may select the Full CAL or the Limited CAL as user CAL types. The Limited CAL use is subject to the restrictions listed in the Limited User definition. You may permanently reassign your user CAL from one user to another. You may temporarily reassign your user CAL to a temporary user while the permanent user is absent. 5. Use rights. o Your rights to use the product are perpetual but may be revoked if you do not comply with the terms of this agreement. 6. Terms specific to the subscription model Subscription Validation. o Servers on which the applicable product is installed will from time to time perform a validation check of the product. Validation verifies that the product has been properly licensed. It also verifies that no unauthorized changes have been made to the validation functions of the product. o The validation check may be initiated by the product or VSD. To enable validation checks, the product may from time to time require updates or additional downloads of the validation functions of the product. The updates or downloads are required for the proper functioning of the product and may be downloaded and installed without further notice to you. During or after a validation check, the server may send information about the product, the computer and the results of the validation check to VSD. This information includes customer subscription identifier, product name, license serial number, product version number, and the date of last use. Microsoft will use this information only to verify licensing compliance. o If, after a validation check, the product is found to be improperly licensed, Microsoft or your partner may provide notice that the product is improperly licensed, and you may  receive reminders to obtain a properly licensed copy of the product, or  need to follow instructions in the notice to be licensed to use the product. Term. The term for your subscription license is set in your agreement with your partner. 7. Additional licensing requirements and/or use rights a. Modification Disclaimer. You may modify the product only as necessary to use it for your internal business purposes if you received it in source code form or you or any third party acting on your behalf have licensed tools that allow you or that third party to modify the product’s object code. You agree that VSD is not responsible for any problems that result from modifications made by you, a partner, or any other third party acting on your behalf, or any problems that are caused by third party hardware or product. VSD does not, and will not have any obligation to, provide technical or other support for any modifications to the product made by you, by a partner or by any other third party. VSD does not make any representation, endorsement, guarantee or assurance of the suitability of the product for your business, the suitability of the partner or any other third party to create modifications or to implement the modifications or the product, or that any modification created, implemented, supported and/or serviced by, for or on behalf of you or any third party will meet your business needs or operate successfully with the product. VSD and its partners are independent entities and VSD is not liable for nor bound by any acts of such business partners. b. Fictitious Data. The uniform resource locators (URLs), addresses, names of individuals, companies, cities, states, and other items depicted and referenced in VSD material are fictitious in nature. They are provided as examples and illustrations only. No real association or connection is intended or should be inferred. c. Complex Product. The product is complex computer product. Its performance will vary depending on your hardware platform, product interactions, the configuration of the product and other factors. The product is neither fault tolerant nor free from errors, conflicts or interruptions. d. Third Party Notices. The product may include third party material (i.e., code or documentation) that VSD licenses to you under this agreement. Notices, if any, for the third party material are included for your information only. e. Additional Functionality. VSD may provide additional functionality for the product. Other license terms and fees may apply. 8. Product license keys. The product requires a key to run or access it. A key may only be used to run or access the particular version of the product it was issued for. You are responsible for the use of keys assigned to you. You must not duplicate or share the keys with third parties. 9. Benchmark testing. You must obtain VSD 's prior written approval to disclose to a third party the results of any benchmark test of the product. 10. Scope of license. The product is licensed, not sold. This agreement only gives you some rights to use the product. VSD reserves all other rights. Unless applicable law or a separate written contract with VSD gives you more rights despite this limitation, you may use the product only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the product that only allow you to use it in certain ways. You may only use the product for your internal business purposes. You may not: o work around any technical limitations in the product o reverse engineer, decompile or disassemble the product, except and only to the extent that applicable law expressly permits, despite this limitation o circumvent the validation functions of the product o publish the product for others to copy o rent, lease or lend the product o or use the product for commercial product hosting services. Your rights to use the product may be revoked if you do not comply with the terms of this agreement. Rights to access the product do not give you any right to implement VSD intellectual property in product or devices that access the server. 11. Backup copy. You may make multiple copies of the product for backup, development and testing purposes, so long as such copies are not used in production and the development or testing is for your internal business purpose only. Your backup copies may be hosted by a third party on your behalf. 12. Source Code Escrow. You may request that the Developer shall deposit one copy of the source code version of the Software with an escrow agent specializing in software escrows, to be mutually agreed upon in writing by the parties after good faith negotiation. a. Delivery of Object Code. The Developer shall deliver the Software to the Customer in object code form only. b. Delivery and Update of Source Code. The Developer shall deliver the source code to the escrow agent within thirty days days after its delivery of the object code to the Customer. Thereafter, the Developer shall deposit with the escrow agent the source code version of all updates to, enhancements of, and modifications to the Software created by the Developer on the Customer's behalf. c. Payment of Escrow Fees. The Customer shall pay all fees necessary to establish and maintain the escrow. d. Contingent License. The Developer hereby grants to the Customer a contingent license to receive the source code from the escrow agent and to use the source code to support its use of the Software in machine-readable form if one or more of the following events occurs: o the Developer fails to fulfill its obligations to maintain the Software as provided in this agreement, o the Developer, whether directly or through a successor or affiliate, ceases to be in the software business, o the Developer becomes insolvent or admits insolvency or a general inability to pay its debts as they become due, o the Developer files a petition for bankruptcy, o the Developer comes under the control of a competitor of the Customer. 13. Fail-over rights In addition to your use of the product, you may run a single passive fail-over of your solution that will only be used or accessed for temporary support when the primary solution is unavailable. 14. License transfer. You may not transfer the product without VSD’s prior written consent. If permitted, there may be additional charges for transferring the product to a third party. 15. Documentation. Any person that has valid access to your computer or internal network may copy and use the documentation for your internal, reference purposes. 16. Downgrade. You have no rights to use earlier versions of the product under this license and VSD is not obligated to supply earlier versions to you. 17. Export restrictions. The product is subject Canada’s export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the product. These laws include restrictions on destinations, end users and end use. 18. Entire agreement. This agreement (including the warranty below), and the terms are the entire agreement for the product. 19. Applicable law. Canadian and Province of Quebec’s law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. 20. Legal effet. This agreement describes certain legal rights. You may have other rights under the laws of your state or country. You may also have rights with respect to the party from whom you acquired the product. This agreement does not change your rights under the laws of your state or country if the laws of your state or country do not permit it to do so. 21. Defense of infringement and misappropriation claims. VSD will defend you against any claims made by an unaffiliated third party that the product infringes its patent, copyright or trademark or misappropriates its trade secret, and will pay the amount of any resulting adverse final judgment (or settlement to which VSD consents). You must notify us promptly in writing of the claim and give us sole control over its defense or settlement. You agree to provide us with reasonable assistance in defending the claim, and VSD will reimburse you for reasonable out of pocket expenses that you incur in providing that assistance. The terms “misappropriation” mean “undisclosed information” as described in Article 39.2 of the TRIPs agreement and “misappropriation” will mean intentionally unlawful use. Our obligations will not apply to the extent that the claim or adverse final judgment is based on (i) your use of the product after VSD notifies you to discontinue use due to such a claim; (ii) your combining the product with a non- VSD product (hardware, product or service), data or business process including third party add-ons or programs; (iii) damages attributable to the value of the use of a non- VSD product, data or business process; (iv) your altering or modifying the product, including any modifications by third parties; (v) your distribution of the product to, or its use for the benefit of, any third party; (vi) your use of VSD trademark(s) without express written consent to do so; or (vii) for any trade secret claim, your acquiring a trade secret (a) through improper means; (b) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (c) from a person (other than VSD or its affiliates) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. You will reimburse us for any costs or damages that result from these actions. If VSD receives information concerning an infringement or misappropriation claim related to the product, VSD may, at its expense and without obligation to do so, either (i) procure for you the right to continue to run the product, or (ii) modify the product or replace it with a functional equivalent, to make it non-infringing, in which case you will stop running the product immediately. If, as a result of an infringement or misappropriation claim, your use of the product is enjoined by a court of competent jurisdiction, VSD will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the amount paid and terminate this license. If any other type of third party claim is brought against you regarding Microsoft’s intellectual property, you must notify us promptly in writing. Microsoft may, at its option, choose to treat these claims as being covered by this section. This Section 23 provides your exclusive remedy for third party copyright, patent or trademark infringement and trade secret misappropriation claims. 22. Limitation on and exclusion of damages. You can recover from VSD and its suppliers only direct damages up to the amount you paid for the product. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages. This limitation applies to o anything related to the: (i) product, (ii) services, (iii) content (including code) on any third party Internet sites, or (iv) third party materials; and o claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, loss of data, damage to records or data, loss of goodwill, loss as a consequence of a business interruption or any other tort to the extent permitted by applicable law. It also applies even if o repair, replacement or a refund for the product does not fully compensate you for any losses; or o Microsoft knew or should have known about the possibility of the damages. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. They also may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages. 23. Verifying compliance. a. Right to verify compliance. You are required to keep records (including proof of purchase) relating to the product you use under this agreement. VSD has the right to verify compliance with this agreement, at VSD’s expense. You agree to provide reasonable cooperation in the event of a compliance audit, including by allowing VSD, on request, to access the usage report as a tool in conducting the audit. b. Verification process and limitations. To verify compliance with the terms of this Agreement, VSD will engage an independent accountant from a recognized public accounting firm, which will be subject to a confidentiality obligation. Verification will take place upon not fewer than 30 days’ notice, during normal business hours and in a manner that does not interfere unreasonably with your operations. As an alternative, VSD can require you to complete VSD’s self-audit questionnaire relating to the product you use under this agreement, but reserves the right to use a verification process as set out above. c. Verification frequency. If VSD undertakes verification and does not find material unlicensed use (license shortage of 5% or more), then Microsoft will not undertake another verification of the same entity for at least one year. d. Use of Results. VSD and VSD’s auditors will use the information obtained in compliance verification only to enforce VSD’s rights and to determine whether you are in compliance with the terms of this agreement. By invoking the rights and procedures described above, VSD does not waive its rights to enforce this agreement or to protect its intellectual property by any other means permitted by law. e. Remedies for non-compliance. If verification or self-audit reveals any unlicensed use, you must promptly order sufficient licenses to cover your use. If material unlicensed use is found, you must reimburse VSD for the costs VSD has incurred in verification and acquire the necessary additional licenses at single retail license cost within 30 days. ************************************************************************* LIMITED WARRANTY A. Limited warranty. If you follow the instructions, the product will perform substantially as described in the VSD materials that you receive in or with the product. References to “limited warranty” are references to the express warranty provided by VSD. This warranty is given in addition to other rights and remedies you may have under law, including your rights and remedies in accordance with the statutory guarantees under local Consumer Law. B. Term of warranty, warranty recipient, length of any implied warranties. The limited warranty covers the product for one year after acquired by the first user. If you receive supplements, updates, or replacement product during that year, they will be covered for the remainder of the warranty or 30 days, whichever is longer. To the extent permitted by law, any implied warranties, guarantees or conditions last only during the term of the limited warranty. Some states do not allow limitations on how long an implied warranty lasts, so these limitations may not apply to you. They also might not apply to you because some countries may not allow limitations on how long an implied warranty, guarantee or condition lasts. C. Exclusions from warranty. This warranty does not cover problems caused by your acts (or failures to act), the acts of others, or events beyond VSD’s reasonable control. D. Remedy for breach of warranty. VSD will repair or replace the product at no charge. If VSD cannot repair or replace it, VSD will refund the amount shown on your receipt for the product. It will also repair or replace supplements, updates and replacement product at no charge. If VSD cannot repair or replace them, it will refund the amount you paid for them, if any. You must uninstall the product and return any media and other associated materials to VSD with proof of purchase to obtain a refund. These are your only remedies for breach of the limited warranty. E. Consumer rights not affected. You may have additional consumer rights under your local laws, which this agreement cannot change. F. Warranty procedures. You need proof of purchase for warranty service. For warranty service or information about how to obtain a refund, contact your partner. G. No other warranties. The limited warranty is the only direct warranty from VSD. VSD gives no other express warranties, guarantees or conditions. Where allowed by your local laws, VSD excludes implied warranties of merchantability, fitness for a particular purpose and non-infringement. If your local laws give you any implied warranties, guarantees or conditions, despite this exclusion, your remedies are described in the Remedy for Breach of Warranty clause above, to the extent permitted by your local laws. H. Limitation and exclusion of damages for breach of warranty. The Limitation on and Exclusion of Damages clause above applies to breaches of this limited warranty. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state. You may also have other rights which vary from country to country. ************************************************************************* POUR LE QUÉBEC Ce document est rédigé uniquement en anglais, d’un commun accord des parties.