ioFABRIC END USER LICENSE AGREEMENT
IMPORTANT — READ CAREFULLY
READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) BEFORE DOWNLOADING, INSTALLING, COPYING, CONFIGURING, ACCESSING, DEPLOYING, USING ioFABRIC SUPPORT AND/OR USING THE SOFTWARE. BY DOWNLOADING, INSTALLING, COPYING, CONFIGURING, ACCESSING, DEPLOYING, USING ioFABRIC SUPPORT AND/OR OTHERWISE USING ALL OR ANY PART OF THE SOFTWARE. BY CLICKING ON THE “ACCEPT” BUTTON OR APPROVING THE INSTALLATION OF THE SOFTWARE, YOU (A) AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; 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.
YOUR USE OF THE SOFTWARE IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT:
- ioFABRIC WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO YOU;
- YOU MUST NOT ORDER OR PURCHASE THE SOFTWARE;
- YOU MUST NOT DOWNLOAD, INSTALL, COPY, CONFIGURE, ACCESS, DEPLOY, CLICK ON AN “ACCEPT” BUTTON, USE ioFABRIC SUPPORT AND/OR OTHERWISE APPROVE THE INSTALLATION OF OR USE OF THE SOFTWARE; and
- YOU MUST DELETE THE UNUSED SOFTWARE AND RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHOM YOU ACQUIRED IT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF THE SOFTWARE.
This Agreement is between you, on behalf of yourself as an individual or the company, partnership or business entity that you represent (“You” or “Your”) and ioFABRIC, Inc., an Ontario corporation, with offices located at 20 Bay Street, Suite 1100, Toronto, Ontario, Canada M5J 2N8 (“ioFABRIC”).
“Software” means any ioFABRIC software, library, utility, tool or other computer or program code, in object (binary) or source-code form provided, directly or indirectly to You as well as to any copies (whether complete or partial) made by You or on Your behalf, including without limitation firmware. The term “Software” also includes any updates, upgrades or other new features, functionality or enhancements to the Software made available directly or indirectly to You.
“Documentation” means any user manuals, technical manuals, on-line read me, help files, or other documentation or explanatory materials related to the Software or describing the installation, operation, use or technical specifications thereof, in printed, electronic or other form.
This Agreement applies to all Software and Documentation made available by ioFABRIC to You.
- License Grant and Entitlement. Subject to and conditional upon Your payment of License Fees and Your strict compliance with all terms and conditions set forth in this Agreement, the Software and Documentation are licensed, not sold, to You by ioFABRIC. This Agreement confers no title or ownership and is not a sale of any rights in the Software or Documentation. Subject to the terms and conditions of this Agreement, the terms of Your entitlement which evidences Your authorization to use the Software and the authorized scope of use of the Software and the number of Licensed Units and the usage level and feature set authorized (“Entitlement”), and payment of the purchase or subscription price and/or all fees, You are hereby granted a personal, limited, non-assignable, non-exclusive, non-sub-licensable and non-transferable right to run any number of copies of the Software on any number of Your systems physically located in the country or countries in which You have been invoiced (provided, however, that if You have been invoiced within any of the European Economic Area member states, You may deploy the Software throughout the European Economic Area) (collectively, the “Territory”), during the period of the license and for internal business operations only, solely as set forth in the Documentation (“Permitted Use”). The Entitlement shall be specified in writing on the order or equivalent document (“Order”) issued by ioFABRIC or the party from whom You have lawfully acquired the products. The Entitlement shall specify the name of the product, the number of Licensed Units and the usage level and feature set authorized. Your Permitted Use is limited to the number of Licensed Units stated in Your Entitlement. “Licensed Unit” means the unit of measure by which Your use of Software is licensed, as described in Your Entitlement. If You have multiple Entitlements specifying Licensed Units using the same unit of measure, You may install and use as many copies of the Software as You need to provide the aggregate number of Licensed Units, as they may change from time to time, in each case only as permitted herein. Use of the Software outside the scope of Your Entitlement is unauthorized and shall constitute a material breach of this Agreement and void the warranty and/or support obligations of which You may otherwise be entitled. You agree to use Your best efforts to prevent, and to protect the contents of the Software and Documentation from, infringement, misappropriation, theft, misuse, unauthorized access and unauthorized disclosure or use. You shall promptly notify ioFABRIC if You become aware of any infringement of ioFABRIC’s rights in the Software and fully cooperate with ioFABRIC in any legal action taken by ioFABRIC to enforce such rights. ioFABRIC and its licensors reserve all rights, including but not limited to ownership and intellectual property rights, not expressly granted to You. ioFABRIC licensors are the intended third party beneficiaries of this Agreement and have the express right to rely upon and directly enforce the terms set forth herein. There are no implied licenses granted by ioFABRIC under this Agreement. Except as expressly specified above, You shall have no rights to the Software or the Documentation.
- Limitations on Use. You must not use the Software or Documentation except as permitted by this Agreement. Without limiting the generality of the foregoing, You must not:
- alter, translate, adapt, decompile, disassemble, modify, unbundle or create any derivative works of the Software, the underlying source code, or the Documentation or any part thereof in any way, including without limitation customization, translation or localization, whether or not patentable;
- port, combine, emulate the functionality, reverse compile, reverse assemble, reverse engineer, decompile, decode, create derivative works, or otherwise reduce to human readable form or attempt to separate any of the components of the Software or gain access to or derive the source code for the Software or any part thereof;
- copy, redistribute, encumber, sell, rent, lend, lease, license, sublicense, assign, publish, or otherwise transfer or make available rights to the Software or Documentation, use the Software for the benefit of any third party or on a hosted basis;
- remove, delete, obscure or alter any trademark, logo, copyright, patent or other intellectual property or proprietary notices, legends, symbols or labels in the Software or Documentation or any copy thereof or any product in which the Software is embedded, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
- disclose the results of testing, benchmarking or other performance or evaluation information related to the Software or the product to any third party without the prior written consent of ioFABRIC;
- access or use the Software or Documentation for any competitive purposes (e.g. to gain competitive intelligence; to design or build a competitive product or service, or a product providing features, functions or graphics similar to those used or provided by ioFABRIC; to copy any features, functions or graphics; or to monitor availability, performance or functionality for competitive purposes);
- use any “locked” or key restricted feature, function or capability without first purchasing the applicable license and obtaining a valid key, even if such feature, function or capability is enabled without a key;
- use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:
- power generation systems;
- aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;
- safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
- military or aerospace applications, weapons systems, or environments;
- distribute any copy of the Software to any third party, including as may be embedded in equipment sold in the second-hand market;
- use the Software or Documentation in violation of any law, regulation, or rule;
- use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to ioFABRIC's commercial disadvantage; or
- cause, encourage or permit any third party to do any of the foregoing.
- If You believe that any of the foregoing restrictions are prohibited by local law, You agree to provide ioFABRIC with at least ninety (90) days advance written notice of Your belief and provide to ioFABRIC all information reasonably requested by ioFABRIC to evaluate Your claim. ioFABRIC may, in its discretion, impose reasonable conditions, including a reasonable fee, on such use of the Software, or offer to provide alternatives to ensure that ioFABRIC’s proprietary rights in the Software are protected and to reduce any adverse impact on ioFABRIC’s proprietary rights.
- Responsibility for Use of Software. You are solely responsible for installation of the Software. You are responsible and liable for all uses of the Software and Documentation through access thereto provided by You, directly or indirectly. Specifically, and without limiting the generality of the foregoing, You are responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by your authorized users or by any other person to whom You may, directly or indirectly, provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
- Third Party Software. You acknowledge that the Software may contain copyrighted software of third parties that are obtained under a license from such parties (“Third Party Software”). All third party licensors retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Your use of any Third Party Software shall be subject to, and You shall comply with, the terms and conditions of this Agreement, and the applicable restrictions and other terms and conditions set forth in any Third Party Software documentation or printed materials, including without limitation any end user license agreement.
- Open Source Components. Software may use or include one or more of the open source software components listed in the ioFABRIC open source attribution file, which is available at www.iofabric.com/opensource. Please refer to the open source attribution file for the open source license disclosures and pertinent terms.
- Proprietary Rights. You acknowledge and agree that the Software belongs to ioFABRIC or its licensors. You agree that You neither own nor hereby acquire any claim or right of ownership to the Software and Documentation or to any related patents, copyrights, trademarks or other intellectual property, including all modifications and derivative works of any of the foregoing. ioFABRIC and its licensors, as applicable, retain all right, title and interest both tangible and intangible in and to all copies of the Documentation and the Software at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy. The Software and Documentation are protected by copyright and other intellectual property laws and by international treaties. Any and all other copies of the Software or Documentation made by You are in violation of this license. All content accessed through the Software is the property of the applicable content owner and may be protected by applicable copyright law. This license gives You no rights to such content. All trademarks used in connection with the Software and Documentation are owned by ioFABRIC, its affiliates and/or its licensors and other suppliers, and no license to use any such trademarks is provided hereunder. All suggestions or feedback provided by You to ioFABRIC with respect to the Software shall be ioFABRIC’s property and deemed Confidential Information of ioFABRIC. You hereby assign to ioFABRIC all right, title and interest in and to any feedback provided to ioFABRIC.
- Support. ioFABRIC’s support obligations for the Software, if any, are set forth in the Support Terms and Conditions, which may be found at www.iofabric.com/support-terms. ioFABRIC does not provide any product maintenance or support services under this Agreement. Product maintenance and support services, if any, will be provided under a separate agreement. This Agreement does not entitle You to any product updates at any time in the future.
- Term and Termination. This Agreement and Your right to use the Software and Documentation may be terminated by You at any time upon written notice. This Agreement automatically terminates if (a) You or any of Your employees or consultants fail to comply with its terms and conditions; or (b) You terminate or suspend Your business, become insolvent, admit in writing Your inability to pay Your debts as they come due, make an assignment for the benefit of creditors, apply for, or consent to, the appointment of a trustee, receiver, or custodian for a substantial part of Your property or become subject to any bankruptcy or insolvency proceeding. Upon expiration or termination of this Agreement for any reason: (a) all licenses granted by ioFABRIC shall immediately terminate; (b) You shall immediately discontinue use of the applicable Software and products; (c) You shall promptly remove Your confidential data, if any, and immediately return the products and related materials to ioFABRIC or the party from whom the product was obtained; (d) You shall destroy all copies of the Software and Documentation in Your possession, custody or control; and (e) if requested, You shall certify to ioFABRIC in writing that such return or destruction has occurred. The preamble as well as Sections 2, 4, 6, 7, 8, 10, 12, 13, 14, 15 and 16 shall survive any expiration or termination of this Agreement.
- NO WARRANTY. EXCEPT AS PROVIDED IN THE ioFABRIC LIMITED WARRANTY, WHICH MAY BE FOUND AT www.iofabric.com/warranty, YOU AGREE THAT THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND THAT ioFABRIC AND ITS LICENSORS MAKE NO OTHER WARRANTIES AS TO THE SOFTWARE OR DOCUMENTATION, INCLUDING WITHOUT LIMITATION UNINTERRUPTED USE, ACCURACY, AND DATA LOSS. ioFABRIC AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF ioFABRIC KNOWS OR SHOULD HAVE KNOWN OF SUCH PURPOSE), TITLE, QUIET POSSESSION AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE, OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE OR HARDWARE OR ANY OTHER ioFABRIC PRODUCTS, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. ioFABRIC AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION OR ANY RESULTS OF USE THEREOF WILL BE FREE OF DEFECTS, ERRORS OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED. YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURANCIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE ioFABRIC SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
- LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, ioFABRIC AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE AND/OR IF ioFABRIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY LOST REVENUES, GOODWILL OR PROFITS, BUSINESS INTERRUPTION, LOSS OF SERVICES, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION, BREACHES IN SYSTEM SECURITY, PROCUREMENT OF SUBSTITUTE HARDWARE, SOFTWARE OR SERVICES, LOST OR CORRUPT DATA, WORK STOPPAGE, RE-RUN TIME OR INACCURATE OUTPUT. YOU AGREE THAT YOU SHALL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING YOUR DATA, BY PERIODIC BACKUP OR OTHERWISE. IN ANY CASE, ioFABRIC’s SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE THE REPLACEMENT OF THE SOFTWARE FOUND TO BE DEFECTIVE. ioFABRIC SHALL NOT BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OR LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATIONS MAY NOT APPLY TO YOU IN WHICH CASE ioFABRIC’s LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE LICENSE FEES YOU PAID FOR THE SOFTWARE GIVING RISE TO THE CLAIM. THE LIMITATIONS SET FORTH IN THIS SECTION 8 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Defense and Indemnification. Subject to the remainder of this Section 9 (Infringement), ioFABRIC shall defend You against any third party claim that the Software infringes any patent, trademark or copyright of such third party, or misappropriates a trade secret (but only to the extent that the infringement or misappropriation is not a result of Your actions) under the laws of: (a) the United States and Canada; (b) the European Economic Area; (c) Australia; (d) New Zealand; (e) Japan; or (f) the People’s Republic of China, to the extent that such countries are part of the Territory for the License (“Infringement Claim”) and indemnify You from the resulting costs and damages finally awarded against You to such third party by a court of competent jurisdiction or agreed to in settlement. The foregoing obligations are applicable only if You: (i) promptly notify ioFABRIC in writing of the Infringement Claim; (ii) allow ioFABRIC sole control over the defense for the claim and any settlement negotiations; (iii) reasonably cooperate in response to ioFABRIC requests for assistance; and (iv) are not in material breach of this Agreement. You may not settle or compromise any Infringement Claim without the prior written consent of ioFABRIC.
- Remedies. If the alleged infringing Software becomes, or in ioFABRIC’s opinion is likely to become, the subject of an Infringement Claim, ioFABRIC may, at ioFABRIC’s option and expense, do one of the following: (a) procure the rights necessary for You to make continued use of the affected Software; (b) replace or modify the affected Software in whole or in part to make it non-infringing; or (c) terminate the License to the affected Software and discontinue the related support services, and, upon Your certified deletion of the affected Software, refund: (i) the fees paid by You for the License to the affected Software, less straight-line depreciation over a three (3) year useful life beginning on the date such Software was delivered; and (ii) any pre-paid service fee attributable to related support services to be delivered after the date such service is stopped. Nothing in this Section 9.2 (Remedies) shall limit ioFABRIC’s obligation under Section 9.1 (Defense and Indemnification) to defend and indemnify You, provided that You replace the allegedly infringing Software upon ioFABRIC’s making alternate Software available to You and/or You discontinue using the allegedly infringing Software upon receiving ioFABRIC’s notice terminating the affected License.
- Exclusions. Notwithstanding the foregoing, ioFABRIC will have no obligation under this Section 9 (Infringement) or otherwise with respect to any claim based on: (a) any method or process in which the Software may be used; (b) its compliance with Your specifically requested specifications; (c) a combination of Software with non-ioFABRIC products (other than non-ioFABRIC products that are listed on the Order and used in an unmodified form); (d) use for a purpose or in a manner for which the Software was not intended; (e) use of any older version of the Software when use of a newer ioFABRIC version would have avoided the infringement; (f) any modification to the Software made without ioFABRIC’s express written approval; (g) any claim that relates to open source software or freeware technology or any derivatives or other adaptations thereof that is not embedded by ioFABRIC into Software listed on ioFABRIC’s commercial price list; or (h) any Software provided on a no charge, beta or evaluation basis. You shall indemnify and hold harmless ioFABRIC and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim that the Software infringes any copyright or trademark or misappropriates any trade secret due to any of the foregoing factors, and shall give ioFABRIC all reasonable information and assistance regarding such claim. THIS SECTION 9 (INFRINGEMENT) STATES YOUR SOLE AND EXCLUSIVE REMEDY AND ioFABRIC’S ENTIRE LIABILITY AND OBLIGATION FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.
- Confidentiality. “Confidential Information” shall mean the Software and Documentation and all other information disclosed to You that ioFABRIC characterizes as confidential at the time of its disclosure either in writing or orally or that You should reasonably have known to be confidential, except for information which You can demonstrate: (a) is previously rightfully known to You without restriction on disclosure; (b) is or becomes, from no act or failure to act on Your part, generally known in the relevant industry or public domain; (c) is disclosed to You by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by You without access to the Confidential Information. You shall use Your best efforts to preserve and protect the confidentiality of the Confidential Information at all times. You shall hold in confidence and shall protect with the same degree of care that You use to protect Your own confidential information, but in no case with less than reasonable care, the Confidential Information from harm, loss, theft, reproduction and unauthorized access. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of ioFABRIC. You acknowledge and agree that the Confidential Information You receive is the sole and exclusive property of ioFABRIC (and/or its suppliers and licensors) and is highly valuable, confidential and material to the interests, business and affairs of ioFABRIC, and that disclosure thereof would be detrimental to the interests, business and affairs of ioFABRIC. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify ioFABRIC in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with ioFABRIC in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If You are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, You will (i) immediately notify ioFABRIC upon Your becoming aware of such compulsion and in any event prior to such disclosure to allow ioFABRIC an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with ioFABRIC in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, You shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements. The foregoing obligations shall survive any termination or expiration of this Agreement.
- Technical Information. You agree that ioFABRIC may collect or process technical and related information arising from Your use of the Software which may include but may not be limited to internet protocol address, hardware identification, operating system, application software, peripheral hardware, software configuration, and non-personally identifiable Software usage information and statistics to facilitate the provisioning of updates, support, licensing, invoicing or online services.
- Injunctive Relief. You acknowledge and agree that Your breach or threatened breach of this Agreement shall cause ioFABRIC irreparable damage for which recovery of money damages would be inadequate and that ioFABRIC therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
- Compliance with Laws; Export Control.
- Compliance with Laws. Each Party shall comply with all laws applicable to the actions contemplated by this Agreement.
- Canadian Export Regulation. The Software and Documentation may be subject to Canadian export control laws. The parties agree to comply with all applicable Canadian laws and regulations pertaining to the export, re-export and import of products and documentation in effect from time to time. Without limiting the generality of the foregoing, You expressly warrant that You will not directly or indirectly export, re-export, or transship the Software or Documentation in violation of any Canadian export or re-export laws or regulations. In addition, You expressly warrant that, with respect to the Software and Documentation, You will not directly or indirectly export to any of the following destinations, for any of the following end-uses, or in any of the following forms: (A) To countries that are included in the Area Control List; that are subject to Canadian economic sanctions (including those implemented under the United Nations Act or the Special Economic Measures Act); that are excluded from the application of General Export Permit No. 12; and that are subject to sanctions under the Export and Import Permits Act; (B) For end-use that is directly or indirectly related to research, development or production of chemical, biological or nuclear weapons, or any missile programmes for such weapons; (C) Technical information relating to the design, development or implementation of the cryptographic components, modules, interfaces, or architecture of any Software; and (D) Source code or pseudo-code, in any form, of any of the cryptographic components, modules, or interfaces of any Software. You confirm that the Software will not be used in any nuclear or missile proliferation activity, or in chemical or biological weapons activity.
- United States Export Regulation. You acknowledge that parts of the Software is of United States origin, and is subject to the U.S. Export Administration Regulations, and may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that (1) You are not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (b) any person or entity listed on the U.S. Treasury Department lists of Specially Designated Nationals, Foreign Sanctions Evaders, Sectoral Sanctions Identifications, or Palestinian Legislative Council; or the U.S. Commerce Department Denied Persons List, Entity List, or Unverified List; or the U.S. State Department Non-proliferation Sanctions, or Debarred List; and (2) You will not permit the Software, directly, or indirectly, to be used for any purposes prohibited by law, including any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of Software and Documentation by or for the U.S. Government shall be governed solely by the terms and conditions of this Agreement. You agree that the Software may not be exported/re-exported to Cuba, Iran, North Korea, Sudan and Syria. Furthermore, You agree not to resell, transfer, or re-export products without prior authorization from ioFABRIC or the U.S. government to any military entity of: Albania, Armenia, Azerbaijan, Belarus, Cambodia, China (PRC), Georgia, Iraq, Kazakhstan, Kyrgyzstan, Laos, Macau, Moldova, Mongolian P.R., Russia, Tajikistan, Turkmenistan, Uzbekistan, Ukraine, Vietnam.
- Governing Law. To the extent permitted by applicable law, this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein, without regard to its conflicts of law provisions. The parties consent to the exclusive jurisdiction and venue of the federal and provincial courts located in the Province of Ontario in any action arising out of or relating to this Agreement. The parties waive any other venue to which either party might be entitled by domicile or otherwise. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- General Provisions. If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties’ original intent, and the remaining portions remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. You may not assign, delegate any performance, or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. You agree not to copy, sell, give or assign the Software or any part thereof to a third party. ioFABRIC may assign this Agreement to any person or entity at its sole discretion. You represent and warrant that the performance of any activities contemplated by this Agreement do not and shall not conflict with any other agreement or obligation to which You are a party or by which You are bound. Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venturer or employee of the other party for any purpose. This Agreement shall be binding upon and shall inure to the benefit of the Parties, their successors and permitted assigns. This Agreement constitutes the entire and sole agreement between You and ioFABRIC with respect to the Software and Documentation and supersedes all prior and contemporaneous agreements relating to the Software and Documentation, whether oral or written (including any inconsistent terms contained in a purchase order). If You are found to have breached this Agreement, then ioFABRIC shall be awarded attorney fees, costs and expenses. This Agreement may be amended only in writing signed by authorized representatives of both Parties and specifically referring to this provision. This Agreement will be interpreted without being construed for or against either Party. The words “includes” and “including” and the abbreviation “e.g.” will be deemed to be followed by the words “without limitation”.
- Force Majeure. ioFABRIC will not be responsible or liable to You, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labour disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond ioFABRIC’s reasonable control.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; (iv) on the date sent by e-mail with confirmation of reception; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order (or to such other address as may be designated by a party from time to time in accordance with this Section 17), or for ioFABRIC if no address for ioFABRIC is listed on the Order or otherwise designated, to: ioFABRIC Inc., 365 Bay Street, Suite 800, Toronto, Ontario, Canada M5H 2V1.
- Entire Agreement. This Agreement, together with the Order setting out Your Entitlements, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between You and ioFABRIC with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
- Language and Compliance. You confirm that this Agreement and all related documentation is and will be in the English language. The controlling language of this Agreement is English. If You have received a translation into another language, it has been provided for Your convenience only. You are responsible for complying with any local laws in Your jurisdiction which might impact Your right to import, export or use the Software and Documentation, and You represent that You have complied with any regulations or registration procedures required by applicable law to make this license enforceable.