Elmo Solutions Inc.
END-USER SOFTWARE LICENSE AGREEMENT
Agni Link 6.1
THIS LICENSE AND SERVICE AGREEMENT (THE "AGREEMENT") IS A BINDING AGREEMENT WITH Elmo Solutions Inc. ("ELMO SOLUTIONS"). Read this Agreement before downloading, installing, using or ordering the Agni Link software. When you order, download, install or use Agni Link, you acknowledge that you have read the Agreement and understand it, and agree to be bound by the terms of this Agreement. If you act on behalf of a company or other entity, you warrant that you are duly authorized to enter into this Agreement on behalf of this company or other entity. If you did not obtain this copy of Agni Link legally, immediately delete the Software from your system and destroy any copies. If you do not accept the terms and conditions of this Agreement do not download, install, or use the Software or seek any of the Services from ELMO SOLUTIONS.
THE RIGHT TO USE THE SOFTWARE AND TO RECEIVE THE SERVICES IS GRANTED ONLY UPON THE CONDITION THAT YOU AGREE TO THE TERMS AND CONDITIONS BELOW.
DEFINITIONS
In this Agreement, "Elmo" means Elmo Solutions Inc.; "Agreement" means this License and Services Agreement, including any other document incorporated herein by reference, the related license and services orders already accepted, and, as the case may be, any future order accepted by ELMO SOLUTIONS or by an authorized reseller if the licensee decides to subscribe or renew a paid services annual subscription related to the Software or increases the maximum number of users that are authorized to use it; "Licensee" refers to a person (whether an individual or an entity) that has been duly granted a license for the use of the Software or such person’s duly authorized user of the Software, whether the granted person has subscribed for related services or technical support from ELMO SOLUTIONS; "Software" means the Agni Link software in binary executable form only, which may be licensed under payment of license fees to process a certain maximum number of users, as the case may be, to a fee or pricing schedule setting forth the fees for the use of the Software, including an authorized license code, technology and utility software licensed to ELMO SOLUTIONS from the developers and owners thereof, together with all accompanying Software Documentation; "Services" refers to Software updates and upgrades or other related services subscribed by the Licensee according to the selected service level; "Software Documentation" refers to the Software user guide and Software administrator guides integrated into the Software; "Information Source " refers to any document source that may be indexed and queried by the Software, such as folders, networks, intranets and Web sites.
1. LICENSE
1.1. Subject to the terms and conditions of this Agreement and to the acceptance by ELMO SOLUTIONS of the related purchase order on a purchase order form authorized by ELMO SOLUTIONS and in consideration of the payment of the fees, ELMO SOLUTIONS grants the Licensee, a non-exclusive, non-transferable, limited, personal license, to use on a single server an authorized copy of the Software, solely in conjunction with the permitted use in accordance with this Agreement and the Software Documentation. The license granted to the Licensee pertaining to the Software may not be sublicensed to or shared with any other party without the prior written consent of ELMO SOLUTIONS. This Agreement does not grant the Licensee any rights to patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights, functions or licenses in respect of the Software. This license shall be limited to indexing content selected by the Licensee from Information Sources in order to provide search services to Licensee network users or to Licensee Web site users. The number of users may not exceed the specified number on the Licensee’s invoice. If the Licensee desires to increase the number of users, the Licensee may do so by notifying ELMO SOLUTIONS or an authorized reseller and paying the applicable fee according to the then current fee schedule. A license code which enables the Software or increases the indexation capacity may be forwarded to the Licensee electronically.
1.2. The Licensee may make one copy of the Software exclusively for backup purposes where the Licensee’s system is inoperative. The Licensee must obtain ELMO SOLUTIONS’s prior written approval to make any additional copies.
1.3. The effectiveness of the license and the release of the license code to the Software are subject to the receipt by ELMO SOLUTIONS of all applicable fees, if any. Upon ELMO SOLUTIONS’s receipt of payment of the fees by Licensee, the Licensee will have the limited right to use the Software and, as the case may be, any paid Services.
1.4. Paid Services and the levels thereof are offered in accordance with the invoice issued to the Licensee by ELMO SOLUTIONS. Certain Services may be offered without charge according to ELMO SOLUTIONS’s then current policy, as posted on its Web site, and which is subject to change without prior notice at ELMO SOLUTIONS’s sole discretion, and may include minor updates to the current version of the Software. Annual-based paid Services are also offered and may cover Software upgrades only or Software upgrades with extended technical support and related services as subscribed by the Licensee.
2. OWNERSHIP AND RESTRICTIONS
2.1. The Software contains proprietary and copyrighted material and, in its humanly readable form, contains trade secrets and proprietary information owned by, or licensed to, ELMO SOLUTIONS. Title to, and ownership of, the Software and the Software Documentation and all intellectual property rights in the Software and the Software Documentation are, and shall remain, the sole property of ELMO SOLUTIONS and/or its licensors.
2.2. However, copyrights on indexed, found, processed and/or retrieved documents, excerpts, abstracts and summaries of texts produced using the Software remain the exclusive property of the holder of copyrights on the original content indexed, found, processed, retrieved or summarized by the Software. Thus, neither ELMO SOLUTIONS nor the Licensee and any user of the Software may claim copyrights on an indexed, found, processed or retrieved document, abstract or summary (or the contents thereof) resulting from the use of the Software, and no right is granted to either party as a result of the use of the Software.
2.3. The Licensee may, in accordance with the Software Documentation, modify the script of the Software search interface by referring to the Software application programming interface ("API"). The Licensee may also create and use a custom search interface through API, provided however, that the Licensee must maintain at the same locations in the search interface and result pages the non-alterable "Powered by ELMO SOLUTIONS" icon which includes the ELMO SOLUTIONS logo and a link to the ELMO SOLUTIONS Web site. The Licensee may not, without the prior written consent of ELMO SOLUTIONS, relocate, remove or modify the previously mentioned icon from the search interface, even where the Licensee has created a new icon. The Licensee agrees that the use of a ELMO SOLUTIONS’s trademark, logo or icon in a modified or new search interface does not give the Licensee any rights of ownership in that item.
2.4. The Licensee is prohibited from: (a) using, downloading or otherwise transmitting the Software to a location other than as authorized in the Agreement; (b) using the Software to provide service bureau, timesharing services, or shared processing services unless otherwise permitted in the Agreement; (c) permitting the use of the Software or Software Documentation by unauthorized persons; (d) exporting the Software or Software Documentation into any country that does not have copyright laws that will protect the copyright of ELMO SOLUTIONS and any third party software vendors from whom its licensing rights derive; (e) removing, altering, covering or obscuring any confidentiality, trade secret, proprietary or copyright notices, trade-marks or other proprietary or identifying marks or designs, or designations from any component of the Software, the Software Documentation and delivery media; (f) translating, adapting, modifying, decompiling, reverse engineering, creating derivative works from, disassembling, unlocking, copying or recreating any component of the Software; (g) combining any portion of the Software with any other software, source codes, data, databases or technologies without the express written permission of ELMO SOLUTIONS; (h) pledging, mortgaging, hypothecating, encumbering or offering as security in any manner the Agreement, any of the rights granted thereunder or any part of the Software, the Software Documentation, or components thereof; or (i) disclosing a license code, creating or using a non-authorized license code or knowingly allow others to do so. ELMO SOLUTIONS reserves all rights not expressly granted in this Agreement. Each of the terms and conditions of this Agreement is material to the Agreement and failure of Licensee to comply with any of these terms and conditions will constitute sufficient cause for termination of the Agreement.
2.5. In order to make effective certain statements of this Agreement and to be informed of updates and upgrades or add-ins, etc., the Licensee agrees to inform ELMO SOLUTIONS on a confidential basis of its identity, including its postal and e-mail address. The Licensee also agrees to inform ELMO SOLUTIONS by e-mail or letter of any address changes.
2.6. For license verification purposes, the Licensee agrees that the Software may electronically transmit to ELMO SOLUTIONS data pertaining to the use of the Software, being understood that such summary data shall be strictly limited to the number of users and documents indexed. Such transmission shall not contain any information regarding specific documents, queries and information sources, and shall be used solely for the purposes of license verification.
2.7. ELMO SOLUTIONS may, upon ten (10) business days’ prior written notice, audit the Licensee’s use of the Software. The Licensee agrees to cooperate with ELMO SOLUTIONS’s audit and provide reasonable assistance and access to information. Licensee shall pay for the costs of the audit if it is not in compliance with the terms of the Agreement. Licensee will be expected to promptly make good any underpayment disclosed in the course of the audit, plus pay interest accrued and calculated from the date such payment was originally due in accordance with sub-section 5.1.
2.8. If the Software is provided without charge or obligation ("Free Version"), it may be used by the Licensee to the extent of the limited maximum parameters specified in ELMO SOLUTIONS’s license confirmation. Inasmuch as this Agreement enables Licensee to use the Free Version of the Software, ALL SOFTWARE, SOFTWARE DOCUMENTATION AND INFORMATION PROVIDED TO LICENSEE PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS, WITH ALL FAULTS". ELMO SOLUTIONS DOES NOT PROVIDE ANY WARRANTIES WHATSOVER, INCLUDING THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM, OR THAT THE SOFTWARE, SOFTWARE DOCUMENTATION, INFORMATION, OR OTHER MATERIALS SUPPLIED PURSUANT TO THIS SUB-SECTION 2.8 WILL FULFILL ANY OF LICENSEE’S PARTICULAR PURPOSES OR NEEDS. ELMO SOLUTIONS SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY, AND IMPLIED. IN NO EVENT WILL ELMO SOLUTIONS OR ANY THIRD PARTY FROM OR TO WHOM ELMO SOLUTIONS HAS OBTAINED OR GRANTED MARKETING RIGHTS BE LIABLE TO LICENSEE OR TO ANY OTHER PARTY FOR (I) ANY LOSS OF TIME, REVENUES, PROFITS, OR GOODWILL, OR (II) ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT MAY ARISE FROM THE USE OF,THE INABILITY TO USE OR THE MISUSE OF THE SOFTWARE OR ANY THIRD PARTY SOFTWARE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES AND/OR THE EXCLUSION OF IMPLIED WARRANTIES, SO, FOR THOSE JURISDICTIONS, THE EXCLUSIONS AT THIS SUB-SECTION 2.8 MAY NOT APPLY TO THE LICENSEE AND THE LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
2.9. Sections 3, 6 and 8 of this Agreement (except for sub-section 8.5) do not apply to the Free Version of the Software. In the event, the Licensee subsequently purchases a license for the Software, the foregoing sections shall become effective upon payment of the applicable fees.
3. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
3.1. ELMO SOLUTIONS warrants that the Software will perform in all material respects with ELMO SOLUTIONS’s then current specifications for the Software set forth in the Software Documentation for six (6) months after ELMO SOLUTIONS has delivered the Software to the Licensee. ELMO SOLUTIONS also warrants that Services will be provided in accordance with industry standards, for a period of ninety (90) days from performance of the Services.
3.2. ELMO SOLUTIONS DOES NOT GUARANTEE THAT THE SOFTWARE WILL PERFORM ERROR-FREE, VIRUS-FREE OR UNINTERRUPTED OR THAT ELMO SOLUTIONS WILL CORRECT ALL PROGRAM ERRORS. ELMO SOLUTIONS MAKES NO REPRESENTATION THAT IT WILL ISSUE UPDATES OR ENHANCEMENTS TO THE SOFTWARE. THIS WARRANTY DISCLAIMER IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE AGREEMENT BETWEEN THE LICENSEE AND ELMO SOLUTIONS. ELMO SOLUTIONS WOULD NOT PROVIDE THE SOFTWARE TO ANOTHER PARTY ABSENT SUCH LIMITATION.
3.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. ELMO SOLUTIONS DOES NOT GUARANTEE THAT THE SOFTWARE MAY ACCESS CERTAIN INFORMATION SOURCES WHERE IT IS NOT AUTHORIZED TO DO SO. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO A LICENSEE. IN THAT EVENT, TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. A LICENSEE MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
3.4. IF ELMO SOLUTIONS CANNOT SUBSTANTIALLY CORRECT OR REPLACE THE NON-CONFORMING SOFTWARE IN A COMMERCIALLY REASONABLE MANNER, THE LICENSEE MAY TERMINATE THIS AGREEMENT OR THE ANNUAL SUBSCRIPTION FOR PAID SERVICES AND RECOVER THE LICENSE AND SERVICE FEES PAID TO ELMO SOLUTIONS LESS AN AMOUNT FOR PRIOR USE BASED ON THE SOFTWARE’S SIX (6) MONTHS WARRANTY. NOTWITHSTANDING THE FOREGOING, THE LICENSEE SHALL RECEIVE, UPON WRITTEN DEMAND, A COMPLETE REFUND OF THE APPLICABLE FEE IF THE ELAPSED TIME SINCE ELMO SOLUTIONS HAS DELIVERED THE SOFTWARE DOES NOT EXCEED THIRTY (30) DAYS. THIS CONSTITUTES THE LICENSEE’S EXCLUSIVE REMEDY.
3.5. The Software is not absolutely fault-tolerant and is not designed, manufactured, or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). ELMO SOLUTIONS specifically disclaims any express or implied warranty of fitness for High Risk Activities. The Licensee agrees to not knowingly use the Software for High Risk Activities.
4. TERM AND TERMINATION
4.1. If the Licensee breaches any of the terms of this Agreement and fails to cure the breach within thirty (30) days after notification of such breach, ELMO SOLUTIONS may terminate the Agreement and the Licensee’s right to use the Software or Services without any right to a refund of the fees paid by the Licensee. Upon termination by ELMO SOLUTIONS of the Agreement, the Licensee must pay within thirty (30) days any and all outstanding amounts that have accrued prior to the termination of the Agreement and due to ELMO SOLUTIONS.
4.2. The Licensee agrees that if the Licensee is in default of any of the terms and conditions of this Agreement, a duly issued ELMO SOLUTIONS invoice, an agreement with an authorized ELMO SOLUTIONS reseller or of any payment schedule approved by ELMO SOLUTIONS related to the Software or Services, ELMO SOLUTIONS may terminate this Agreement and the Licensee shall cease to use the Software and Services. The Licensee must then immediately uninstall the Software from its systems and destroy all copies of the Software and Software Documentation.
4.3. Events of default include: (a) a party failing in any material respect to perform or observe any of its material obligations under the Agreement and such failure continuing unremedied for a period of thirty (30) days following receipt of notice thereof; (b) a party breaching its confidentiality obligations; (c) a decree or order of a court having jurisdiction is entered (i) declaring the relevant party bankrupt or insolvent; or (ii) approving as properly filed a petition seeking a winding up, an arrangement or a compromise of the relevant party under any bankruptcy, insolvency or other analogous law; or (iii) issuing process or execution against the relevant party with respect to all or substantially all its property or assets, or ordering the winding up, dissolution or liquidation of that party, and any such decree or order continues and stays in effect for a period of thirty (30) days from its issuance and is not withdrawn or discharged within such period; (d) a trustee, receiver, receiver and manager, interim receiver, monitor, custodian or other person with similar powers is appointed in respect of the relevant party or in respect of all or a substantial portion of its property or assets and any such appointment continues and stays in effect for thirty (30) days; or (e) a party ceases to carry on its business in the normal course or makes a sale in bulk that materially affects its ability to perform its obligations hereunder.
4.4. Upon termination of this Agreement, the pertinent sections and paragraphs of this Agreement related to a subsequent breach of Sections 2, 5 and 7 will survive the termination of the Agreement.
4.5. In the event the Licensee is in default of its obligations under sub-section 4.3, the Licensee must promptly send a written notice to: Elmo Solutions Inc., 400, boul. Jean-Lesage, Hall ouest, bureau 32, Québec, Québec, Canada, G1K 8W1.
5. FEES AND PAYMENT
5.1. Payment of fees related to this Agreement shall be invoiced to the Licensee upon ELMO SOLUTIONS’s delivery of the Software or upon a subscription or the renewal of a subscription for paid Services, as the case may be. Unless otherwise agreed to in writing, the Licensee agrees to pay ELMO SOLUTIONS the fees set forth in the applicable invoice within thirty (30) days from the date of invoice, or the date of delivery of the Software. A nominal annual service charge of 18%, compounded on a monthly basis, will be applied to all overdue, underpayment and unpaid invoices. The Licensee agrees to pay for all reasonable costs (including reasonable attorneys’ fees) incurred in collecting past due amounts under this Agreement. In addition to any payments due to ELMO SOLUTIONS under this Agreement, the Licensee will pay all applicable taxes except for income taxes based upon ELMO SOLUTIONS’s net income.
5.2. This Agreement being personal to the Licensee, the license granted hereunder does not include the right to sublicense and may not be assigned, by operation of law or otherwise, or transferred without the prior written consent of ELMO SOLUTIONS. Any attempted assignment in derogation hereof shall be null and void. The Licensee may not loan, rent, or lease the Software. If Licensee unlawfully creates any derivative work based on the Software or the Software Documentation, then ELMO SOLUTIONS will be the owner of all such derivative works and any proceeds or profits derived therefrom by Licensee.
6. INDEMNIFICATION
6.1. ELMO SOLUTIONS shall indemnify, defend and/or settle, and pay damages awarded pursuant to, any claim brought against the Licensee alleging that the unmodified Software improperly includes third party U.S. or Canadian patented subject matter, third party copyrighted subject matter or third party trade secrets; provided that the Licensee (i) promptly notifies ELMO SOLUTIONS in writing of any such claim, (ii) promptly tenders the control of the defense and settlement of any such claim to ELMO SOLUTIONS at ELMO SOLUTIONS’s expense and with ELMO SOLUTIONS’s choice of counsel, (iii) cooperates with ELMO SOLUTIONS, at ELMO SOLUTIONS’s expense, in defending or settling such claim, and the Licensee may join in defense with counsel of its choice at its own expense, provided however, that the Licensee does not interfere in any way with ELMO SOLUTIONS’s defense and/or settlement of such claim.
6.2. ELMO SOLUTIONS shall not reimburse the Licensee for any expenses incurred by the Licensee without the prior written approval of ELMO SOLUTIONS. If the Software is, or in the opinion of ELMO SOLUTIONS may become, the subject of any claim for infringement or if it is adjudicatively determined that the Software infringes in the manner described above, then ELMO SOLUTIONS shall, at its sole option and expense, either (i) procure the right to use the Software; (ii) replace or modify the Software with other suitable and materially equivalent products so that it becomes non-infringing; or (iii) if (i) and (ii) are not practicable, as determined in ELMO SOLUTIONS’s sole discretion, terminate the Agreement and license with respect to such Software and refund the license fees paid therefore, less an amount for prior use based on a one (1) year useful life for the Software.
6.3. Notwithstanding the foregoing, ELMO SOLUTIONS shall have no liability for (i) the use of other than the then-current release of the Software; (ii) the use of the Software other than as set forth in its accompanying Software Documentation and as permitted herein; (iii) the modification of the Software by any party other than ELMO SOLUTIONS or its use as so modified; or (iv) any infringement arising from the use of any Software by the Licensee after ELMO SOLUTIONS has issued a written notice to the Licensee requiring to cease using such Software when ELMO SOLUTIONS exercises its option to terminate the license pursuant to this sub-section. THIS SECTION STATES THE ENTIRE OBLIGATION OF ELMO SOLUTIONS AND ITS SUPPLIERS AND LICENSORS WITH RESPECT TO ANY CLAIM REGARDING THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
6.4. Also, ELMO SOLUTIONS shall refund the paid Services subscription fees less an amount corresponding to the period of Services already elapsed.
7. NON-DISCLOSURE
7.1. By virtue of this Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information shall be limited to the terms, conditions and pricing under this Agreement or the invoices and all information clearly identified as confidential. This paragraph will not limit ELMO SOLUTIONS’s ability to mention the name of the Licensee for its promotional needs.
7.2. A party’s Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (iv) is independently developed by the other party.
7.3. The parties agree to hold each other’s Confidential Information in confidence for a period of three (3) years following the termination of this Agreement. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
8. LIMITATION OF LIABILITY
8.1. IN NO EVENT SHALL ELMO SOLUTIONS, OR ANY THIRD PARTY FROM OR WHOM ELMO SOLUTIONS HAS OBTAINED OR GRANTED MARKETING RIGHTS BE LIABLE FOR (I) ANY LOSS OF TIME, REVENUES, PROFITS, OR GOODWILL, OR (II) ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT MAY ARISE FROM THE USE OF, THE INABILITY TO USE OR THE MISUSE OF THE SOFTWARE OR ANY THIRD PARTY SOFTWARE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE.
8.2. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES AND/OR THE EXCLUSION OF IMPLIED WARRANTIES, SO, FOR THOSE JURISDICTIONS, THE EXCLUSIONS AT THE SUB-SECTION 8.1 MAY NOT APPLY TO THE LICENSEE AND THE LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
8.3. TO THE EXTENT THAT THE EXCLUSIONS AT THE SUB-SECTIONS 8.1 AND 8.2 DO NOT APPLY, THE FOLLOWING LIMITATION SHALL APPLY: NOTWITHSTANDING ANY DAMAGES THAT THE LICENSEE MAY INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), ELMO SOLUTIONS’S MAXIMUM LIABILITY UNDER THIS AGREEMENT, WHETHER OR NOT ELMO SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE LESSER OF (I) THE FEE PAID RELATED TO THE INITIAL LICENSE FOR THE SOFTWARE RELATED TO THIS AGREEMENT OR (II) $10,000; PROVIDED THE LICENSEE NOTIFIES (IN WRITING) ELMO SOLUTIONS OF THE CAUSE OF DAMAGES WITHIN THIRTY (30) DAYS OF ITS OCCURRENCE.
8.4. ELMO SOLUTIONS shall not be liable for delays caused by an event of a natural disaster, casualty, acts of God, riots, acts of terrorism, governmental acts or such other event of similar nature that is beyond the ELMO SOLUTIONS’s control, provided however, that ELMO SOLUTIONS shall not have contributed in any way to such event.
8.5. ELMO SOLUTIONS SHALL NOT BE LIABLE FOR ANY NON-AUTHORIZED ACCESS BY THE LICENSEE OR OTHER USERS OF THE SOFTWARE TO AN INFORMATION SOURCE OR FOR THE NON-AUTHORIZED ACCESS TO DOCUMENTS OR WEB PAGES OF A NETWORK OR WEB SITE, INCLUDING THEIR TRESPASSING. ELMO SOLUTIONS SHALL ALSO NOT BE LIABLE FOR THE INTERRUPTION OR THE SLOWDOWN OF THE SERVICES OF A NETWORK OR WEB SITE SERVER THAT MAY BE POTENTIALLY CAUSED BY THE LICENSEE OR USERS OF THE SOFTWARE.
8.6. ELMO SOLUTIONS shall not be responsible for correcting any errors not reproducible by the Licensee on the unmodified Software or errors caused by: (i) the Licensee’s failure to implement all updates and upgrades issued under this Agreement; (ii) changes to the operating system or environment which could adversely affect the Software; (iii) any alteration of or addition to the Software made by a party other than ELMO SOLUTIONS; (iv) the use of the Software in a manner not provided for in the Software Documentation; or (v) accident, negligence, or misuse of the Software.
9. RENEWAL OF PAID SERVICES SUBSCRIPTION
9.1. ELMO SOLUTIONS shall notify the Licensee at least 90 days prior to the renewal date of the paid Services of the Licensee’s option to terminate the Services, provided however, that upon such notification, if the Licensee does not elect to terminate the Services within at least 60 days of the renewal date, the annual subscription for paid Services shall be automatically renewed unless otherwise terminated pursuant to this Agreement. If Licensee elects to terminate the annual subscription for paid Services, then subsequently elects to renew the Services, Licensee shall pay the Service fees that would have been due for the period during which paid Services were not provided, for an amount not exceeding three (3) years of Services.
10. MISCELLANEOUS
10.1. THIS IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE LICENSEE AND ELMO SOLUTIONS RELATING TO THE USE OF THE SOFTWARE. THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL PREVAIL NOTWITHSTANDING ANY VARIANCE WITH ANY PURCHASE ORDER AND ON ANY OTHER WRITTEN INSTRUMENT SUBMITTED BY THE LICENSEE WHETHER FORMALLY REJECTED BY ELMO SOLUTIONS OR NOT.
10.2. The previous statement shall not be interpreted to limit the right of ELMO SOLUTIONS to modify this Agreement for any update or upgrade of the Software, being understood that the offering of already paid Services shall not be affected for the non-elapsed subscription period.
10.3. This Agreement shall be governed and construed in accordance with the laws of the Province of Québec and the laws of Canada applicable therein. The Licensee and ELMO SOLUTIONS agree to submit to the exclusive jurisdiction of the courts of the Province of Québec in any dispute relating to this Agreement.
10.4. THE FAILURE OF A PARTY TO INSIST ON THE PERFORMANCE OF AN OBLIGATION HEREUNDER SHALL NOT BE DEEMED TO BE A WAIVER OF SUCH OBLIGATION OR OF ANY OTHER OBLIGATION. NO WAIVER OF THE TERMS AND CONDITIONS OF THIS AGREEMENT WILL BE VALID UNLESS MADE IN WRITING AND DULY EXECUTED BY AN OFFICER OF ELMO SOLUTIONS.
10.5. Licensee agrees to comply with all applicable international and national laws that may apply to the Software, including the Canadian and U.S. export regulations, as well as end user, end-use, and destination restrictions issued by Canadian, U.S. and other governments.
10.6. The headings in this Agreement are for purposes of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof.
10.7. The parties have agreed that this Agreement be drawn up in the English language. Les parties ont convenu que cette Convention soit rédigée en langue anglaise.
ELMO, Agni Link and the ELMO SOLUTIONS logo are trademarks of Elmo Solutions Inc. Other product and brand names may be trademarks or registered trademarks of their respective owners.
BY CLICKING THE "I AGREE" BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE TO ANY OF THE TERMS, ELMO SOLUTIONS DOES NOT LICENSE THE SOFTWARE TO YOU AND YOU SHOULD NOT SELECT THE "I AGREE" BUTTON BELOW AND DISCONTINUE THE DOWNLOAD AND INSTALLATION PROCESS.