OVERVIEW
The following is the Palmas Development Corporation (the “Corporation”) license agreement (the “License Agreement”) for its proprietary computer software program known as either “PURCHASING plus+” or “SpendMap” (referred to herein as “SpendMap”) and related specified materials. This License Agreement is a legal agreement between you, individually, if you are agreeing to it in your own capacity, or if you are authorized to acquire SpendMap on behalf of your company or organization, between the entity for whose benefit you act (either you, individually, or the entity for whose benefit you act, the “Customer”) and the Corporation.
Before INSTALLING SpendMap, please carefully read this License Agreement. by installing, ACTIVATING OR USING SPENDMAP, you are agreeing to be bound by the terms of this License Agreement. if you have any questions or concerns about the terms of this License Agreement, please contact The Corporation at THE ADDRESS OR EMAIL DESCRIBED BELOW. If, prior to installing, ACTIVATING OR USING SpendMAp, you decide you are unwilling to agree to the terms of the License, you have no right to use SpendMap. In this case, do not attempt to INSTALL SpendMap by any means and if you have already done so, promptly delete the SpendMap LICENSED MATERIALS.
GRANT OF LICENSE
Subject to the terms and conditions of this License Agreement, the Corporation hereby grants to the Customer a personal, non-exclusive, non-transferable and non-assignable license for the installation and use of SpendMap, as specified in the software license purchase agreement between the Corporation and the Customer (“Purchase Agreement”), the accompanying online help system (“Help System”) and all related materials delivered with this License Agreement or hereafter provided to the Customer by the Corporation. SpendMap, the Help System, and all related materials are herein collectively referred to as the “SpendMap Licensed Materials”.
TERM
The term of this License Agreement shall commence upon the effective date of the Purchase Agreement bearing the Customer’s signature and shall continue for an indefinite period unless terminated in a manner set forth in this License Agreement (“Term”). Unless otherwise authorized by the Corporation, the Customer must destroy all copies and component parts of the SpendMap Licensed Materials licensed under this License Agreement immediately upon termination of this License Agreement, and the Customer may be required to provide proof of such destruction to the Corporation. Upon the termination of this License Agreement, the license to install or use any of the SpendMap Licensed Materials shall immediately terminate and the Customer shall promptly stop all use of the SpendMap Licensed Materials.
FEES
The Customer agrees to pay all fees pursuant to the terms of this License Agreement and the Purchase Agreement.
RESTRICTIONS ON USE
The Customer will only use the SpendMap Licensed Materials in accordance with this License Agreement and all applicable laws and regulations. In order to use the SpendMap Licensed Materials, the Customer must have the right and authority to enter into this License Agreement and must be over the age of majority. The Customer agrees that it will not use the SpendMap Licensed Materials to commit any crime or other illegal or tortious act in any jurisdiction worldwide. Pursuant to this License Agreement, only the Customer shall be entitled to use the copies of the SpendMap Licensed Materials delivered to the Customer by the Corporation, and such use is limited to use during the Term of this License Agreement. The Customer’s rights to the use of the SpendMap Licensed Materials and any and all warranties of the Corporation shall commence on the effective date of the Purchase Agreement bearing the Customer’s signature and shall terminate on the expiry of the Term.
PROPRIETARY RIGHTS OF PALMAS DEVELOPMENT CORPORATION
The Customer acknowledges that the SpendMap Licensed Materials are subject to the proprietary rights of the Corporation. As such, the SpendMap Licensed Materials, and all copies thereof, remain the property of the Corporation. The Customer agrees that the ideas and expressions contained in the SpendMap Licensed Materials are trade secrets of the Corporation, are protected by civil and criminal law, and by the law of copyright, and are very valuable to the Corporation and that their use and disclosure must be carefully and continuously controlled. The Customer further understands that the SpendMap Licensed Materials are subject to the copyright laws of Canada and by international copyright laws. The Corporation retains all title and ownership and reserves all rights, including copyrights, trademarks, patents and other proprietary rights and interest, in and with respect to the SpendMap Licensed Materials furnished pursuant to this License Agreement, subject only to the Customer’s personal, non-exclusive, non-transferable and non-assignable right to use thereof as defined in this License Agreement. The Customer shall keep each and every item to which the Corporation retains title free and clear from all claims, liens and encumbrances except those of the Corporation, and any act of the Customer, whether voluntary or involuntary, purporting to create a claim, lien or encumbrance on any such items in favour of anyone other than the Corporation shall be void. To protect the proprietary rights of the Corporation to the SpendMap Licensed Materials, the Customer agrees to comply with the requirements for the use of the SpendMap Licensed Materials as set forth in this License Agreement.
FEEDBACK
The Customer may provide the Corporation with feedback on the SpendMap Licensed Materials, including, without limitation, feedback on bugs and faults within or relating to the SpendMap Licensed Materials, or suggestions for improvements or other changes to all or any portion of the SpendMap Licensed Materials. The Customer hereby agrees that the Corporation shall own all feedback, ideas, concepts and changes to any portion of the SpendMap Licensed Materials identified in the course of or as a result of the Customer’s use of the SpendMap Licensed Materials, and the Customer hereby assigns to the Corporation all of its right, title and interest thereto.
TITLE TO CERTAIN COPYRIGHT
The Customer acknowledges that title to copyright of all barcode printing and displaying technology provided in SpendMap is owned and shall remain with TAL Technologies Inc. and that title to copyright of the fax creation and transmission technology provided in SpendMap is owned by and shall remain with Data Techniques Inc. and that title to copyright of the image decoding/decompression software technology provided in SpendMap is owned by and shall remain with Black Ice Software, LLC and that title to copyright of the PDF file creation technology provided in SpendMap is owned by and shall remain with Amyuni Technologies and that title to copyright of the Excel reading/writing technology provided in the SpendMap computer software program is owned by and shall remain with XLware and that title to copyright of the balance of the technology provided in SpendMap is owned by and shall remain with 1606902 Ontario Incorporated or their respective copyright holder. The Corporation represents that, under license agreements with the above listed copyright holders, it is duly licensed and has full and absolute right, by virtue of such licenses, to enter into and to carry out the terms of this License Agreement.
LibExpat (XML parsing)
Copyright (c) 1998-2000 Thai Open Source Software Center Ltd and Clark Cooper Copyright (c) 2001-2019 Expat maintainers
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
MailKit (SMTP)
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
Unmanaged .NET exports extension Copyright (c) 2014 Robert Giesecke
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
COPIES OF SpendMap LICENSED MATERIALS
Pursuant to this License Agreement, only the Customer shall be entitled to use the copies of the SpendMap Licensed Materials, and such use is limited to use during the Term. Unless prior written consent is provided by the Corporation, the Customer may not make any copies of SpendMap Licensed Materials other than for backup and disaster recovery purposes. The Customer must reproduce and include the Corporation’s copyright notice on each such copy. Except as expressly provided in this paragraph, during such period that the Customer has possession or custody of any portion of SpendMap Licensed Materials, the Customer shall not copy, reproduce, modify, duplicate, sell, resell, rent, trade, attempt to create, attempt to extract the source code, attempt by reverse engineering or otherwise to create, decompile, re-write, or disassemble, the SpendMap Licensed Materials, or any portion thereof, from the SpendMap Licensed Materials or any part thereof, or other information in whatever form, made available pursuant to the terms of this License Agreement. The Customer shall not allow anyone else to copy, reproduce, modify, duplicate, sell, resell, rent, trade, attempt to create, attempt to extract the source code, attempt by reverse engineering or otherwise to create, decompile, re-write, or disassemble, the SpendMap Licensed Materials, or any portion thereof, from the SpendMap Licensed Materials or any part thereof, or other information in whatever form, made available pursuant to the terms of this License Agreement.
REQUIRED HARDWARE AND SOFTWARE
The Customer acknowledges that the use of SpendMap requires that the Customer obtain and install additional required software programs and computer hardware (the “Required Hardware and Software”), as detailed in the Corporation’s technical requirements documentation, which the Corporation has made available to the Customer and which may be revised from time to time at the Corporation’s sole discretion. The Customer agrees that the acquisition of the Required Hardware and Software shall be at the Customer’s sole cost and that the cost thereof is not included in the fees set out in this License Agreement or the Annual Maintenance Agreement (described below under the heading “Annual Maintenance Agreement”). The Customer further acknowledges that the operation of SpendMap requires the Required Hardware and Software to be of sufficient quality, condition and repair, and the Customer agrees to maintain the Required Hardware and Software in the appropriate quality, condition and repair at its sole cost and expense.
SYSTEM REGISTRATION
The Customer acknowledges that SpendMap contains security features to prevent unauthorized copying or use and requires that the Customer register/activate SpendMap which requires that SpendMap is able to communicate over the Internet with the Corporation’s servers (“Activation”). If Activation is not performed or is rejected by the Corporation, SpendMap will revert to a “Testing System” which means that it will function but includes watermarks on documents and reports and will display messages to indicate that the software may only be used for testing purposes. The Customer understands and agrees that, to ensure the software does not revert to a Testing System, Activation may be required from time to time including, but not limited to (i) upon the initial installation of SpendMap; (ii) if SpendMap is ever reinstalled (which could include moving the software to a different folder or network drive, or restoring the software from back-up); or (iii) automatically by SpendMap at least once per month. The Customer further understands and agrees that they are allowed to have only one copy of SpendMap which has been registered as a live copy and all other copies must remain as testing copies which include the document watermarks. The Customer understands that the Corporation will make its best and reasonable effort to provide the Activation service in a timely manner but in no way will the Corporation be held responsible for delays that may result in the Customer’s inability to use SpendMap without the document watermarks. The Customer further understands and agrees that the Corporation will not permit Activation if, in the sole discretion of the Corporation, acting reasonably, it considers such Activation could result in SpendMap being used by more than the number of users licensed by the Customer, as described in the Purchase Agreement or being used in any other way contrary to the terms of this License Agreement.
LIMITED WARRANTY
For a period of thirty (30) days from the date hereof, the Corporation warrants to the Customer that SpendMap, as delivered by the Corporation and when operated in conjunction with the Required Hardware and Software, will substantially conform to the documentation (subject to errors and omissions) described in Schedule B. The Corporation’s sole obligation under this warranty shall be to make commercially reasonable efforts, for a period of thirty (30) days from the date hereof, to remedy defects. The Customer recognizes that there may be errors which are not reproducible at the facilities of the Corporation. The Customer agrees that “commercially reasonable efforts” to remedy defects does not include an obligation on the Corporation to conduct site visits to the Customer’s facility.
In the event that Customer and the Corporation enter into an Annual Maintenance Agreement (as described below under the heading “Annual Maintenance Agreement”), the limited warranty described in this section shall apply to SpendMap for the duration of the term of the Annual Maintenance Agreement. For clarity, if new releases or versions of SpendMap are supplied to the Customer pursuant to the Annual Maintenance Agreement (if applicable), such new releases and versions will also be covered by this warranty throughout the term of the Annual Maintenance Agreement.
The Corporation’s warranty to the Customer does not extend to: (i) upgrades, enhancements, modifications or changes made by the Customer or any person other than the Corporation or its authorized agents; (ii) the resolution of problems caused by an upgrade, enhancement modification or change made or performed by the Customer or by any person other than the Corporation or its authorized agents, or otherwise caused by an act or omission of the Customer or of any other person other than the Corporation or its authorized agents; (iii) the resolution of problems caused by the use of the SpendMap Licensed Materials on computer systems that do not contain the Required Hardware and Software; (iv) the resolution of problems caused by the manner in which the Customer’s Required Hardware and Software is installed; or (v) the resolution of problems which are not reproducible at the facilities of the Corporation. If the Corporation provides the Customer with services in respect to a problem that turns out to have been caused by: (i) an upgrade, enhancement, modification or change made or performed by the Customer or by any other person other than the Corporation or its authorized agents or otherwise to have been caused by an act or omission of the Customer or of any other person other than the Corporation or its authorized agents; (ii) problems caused by the use of the SpendMap Licensed Materials on computer systems that do not contain the Required Hardware and Software; or (iii) problems caused by the manner in which the Customer’s Required Hardware and Software is installed, then the Customer will pay the Corporation for all the work done by it, in respect of that problem, based on the Corporation’s standard time and materials charges then in effect.
Additionally, the Corporation warrants to the Customer that the medium on which SpendMap is originally supplied to the Customer shall be free from defects in materials and workmanship under normal use and service, for a period of thirty (30) days from the date that the medium is supplied to the Customer.
In the event of a breach by the Corporation of any warranty hereunder, the Corporation’s entire liability and the Customer’s exclusive remedy shall be the correction or repair of those elements of SpendMap not meeting the Corporation’s limited warranty, in which event SpendMap will be warranted for the remainder of the original thirty (30) day period. In the event that the Corporation is notified of a defect in an element of SpendMap and such defect can be reproduced in the facilities of the Corporation, if the Corporation cannot, within a reasonable amount of time, remedy such defect, and if, as a result, the defective element does not substantially conform to the documentation (subject to errors and omissions) described in Schedule B, then the Customer may choose to terminate this License Agreement for that defective element of SpendMap only. Upon the Corporation receiving written notice of such termination, (i) in the event that such notice is received within thirty (30) days of the date hereof, the Corporation shall reimburse the Customer for that portion of the fees received from the Customer in relation to such defective element; or (ii) at any other time, if the Customer has entered into an Annual Maintenance Agreement (as described below under the heading “Annual Maintenance Agreement”), the Corporation shall reimburse the Customer for the unused fees paid to the Corporation under the current year’s Annual Maintenance Agreement, in relation to such defective element.
NEGATION OF ALL OTHER WARRANTIES; LIMITATION OF LIABILITY
THE SPENDMAP LICENSED MATERIALS ARE SOLD “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY AS TO THEIR PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE INCLUDING, BUT NOT LIMITED TO, WARRANTY AS TO (i) the SpendMap Licensed Materials BEING error-free or that theIR operation will always be timely, secure, error-free or uninterrupted; (ii) THE CORPORATION’S ABILITY TO CORRECT OR FIND all programming errors; (iii) THE CORPORATION’S ABILITY to retrieve any lost or damaged data; (iv) the use of the SpendMap Licensed Materials meetING the Customer’s requirements; or (v) THE ACCURACY OR RELIABILITY OF any information obtained by the Customer as a result of use of the SpendMap Licensed MATERIALS. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF SPENDMAP LICENSED MATERIALS IS ASSUMED BY THE CUSTOMER.
ALL APPLICATION SOFTWARE IS INHERENTLY COMPLEX AND IT IS RECOMMENDED THAT CUSTOMER VERIFY THE RESULTS AND ACCURACY OF INFORMATION PRODUCED BY USING THE SPENDMAP LICENSED MATERIALS. THE CUSTOMER IS RESPONSIBLE FOR TAKING PRECAUTIONARY MEASURES TO PREVENT THE LOSS OR DESTRUCTION OF ITS DATA AND DATABASE.
THE CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR THE SELECTION AND USE OF ANY OTHER PROGRAMS, EQUIPMENT OR SERVICES USED DIRECTLY OR INDIRECTLY IN CONJUNCTION WITH SPENDMAP LICENSED MATERIALS, AS WELL AS FOR THE RESULTS OBTAINED THEREFROM.
EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, THE CORPORATION MAKES NO WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED.
THE CORPORATION MAKES NO WARRANTY TO ANY THIRD PARTY WITH RESPECT TO THE SPENDMAP LICENSED MATERIALS AND THE CUSTOMER SHALL BE SOLELY RESPONSIBLE THEREFOR.
NEITHER THE CORPORATION NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, DELIVERY, INSTALLATION, TRAINING, SUPPORT OR ANY OTHER ACTIVITY OR PRODUCT RELATED TO THE SPENDMAP LICENSED MATERIALS, OR ANY PORTION THEREOF, SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY DAMAGES RELATED TO THE CORRUPTION OR LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OTHER INTANGIBLE LOSS OR FOR ANY LOSSES OR INJURIES ARISING OUT OF THE USE, THE RESULTS OF THE USE, OR AN INABILITY TO USE THE SPENDMAP LICENSED MATERIALS, EVEN IF THE CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS.
APPLICABLE LAW MAY IMPLY WARRANTIES THAT CANNOT BE EXCLUDED OR CAN BE EXCLUDED ONLY TO A LIMITED EXTENT. THIS AGREEMENT SHALL BE READ AND CONSTRUED SUBJECT TO SUCH LAWS.
ALTHOUGH THE PARTIES AGREE THAT THE CORPORATION WILL NOT BE LIABLE FOR ANY TYPE OF DAMAGES OTHER THAN THOSE DESCRIBED HEREIN, IN THE EVENT THAT THE CORPORATION IS FOUND TO BE LIABLE FOR ANY TYPE OF DAMAGES, THE CORPORATION WILL NOT BE LIABLE FOR ANY DAMAGES THAT EXCEED, IN THE AGGREGATE FOR ALL CLAIMS ARISING FROM OR RELATED TO THIS LICENSE AGREEMENT, THE TOTAL AMOUNT OF ALL FEES PAID BY THE CUSTOMER HEREUNDER.
NEW VERSIONS
The Corporation may, in its sole discretion, release new versions of the SpendMap Licensed Materials from time to time. All new versions and releases of the SpendMap Licensed Materials will be made available at the Corporation’s then published rates. However, in the event that the Customer is receiving services and support from the Corporation pursuant to an Annual Maintenance Agreement (as described below under the heading “Annual Maintenance Agreement”), the Customer will receive new versions and releases as described under the terms of the Annual Maintenance Agreement. The Customer is obligated to use such new versions and releases. The Corporation reserves the right to make modifications to SpendMap Licensed Materials without notice, so long as any such modifications shall continue to perform in accordance with the specifications set out in Schedule B hereto.
The Corporation may make changes to the terms of the License Agreement from time to time. The Corporation will make a new copy available through use of an on-screen prompt which will allow the Customer to either accept the revised License Agreement or terminate use of the software.
ANNUAL MAINTENANCE AGREEMENT
In addition to this License Agreement, the Corporation and the Customer may also have entered into or may, in the future, enter into, an annual maintenance agreement (the “Annual Maintenance Agreement”) describing the ongoing services and support to be provided by the Corporation to the Customer following the expiry of the thirty (30) day warranty period described under the heading “Limited Warranty”, above. Notwithstanding the ongoing application of the Annual Maintenance Agreement, the terms and conditions of this License Agreement shall continue to apply and the Annual Maintenance Agreement is not intended to, nor will it, apply to the exclusion of this License Agreement. In the event of a conflict between this License Agreement and the Annual Maintenance Agreement, the terms of this License Agreement shall govern.
UNAUTHORIZED ACTS
Nothing in this License Agreement shall be construed as a grant to the Customer of any rights, other than those expressly set forth in this License Agreement. The Customer shall use its best effort and take all reasonable steps to protect the SpendMap Licensed Materials from unauthorized possession, use or knowledge of any items supplied under this License Agreement. The Customer shall notify the Corporation immediately of any such unauthorized possession, use or knowledge. The Customer will promptly furnish full details of such possession, use or knowledge to the Corporation, will assist in preventing the recurrence of such possession, use or knowledge, and will cooperate with the Corporation in any litigation against third parties deemed necessary by the Corporation to protect its proprietary rights, such litigation to be at the expense of the Corporation. Notwithstanding the generality of the foregoing, in the event that the computer hardware with the SpendMap Licensed Materials is stolen, the Customer shall promptly advise the Corporation of such theft and all relevant details of the theft. The Customer’s compliance with this section shall not be construed in any way as a waiver of any rights which the Corporation may have to recover damages or obtain other relief against the Customer for its negligence or intentional harm to the Corporation’s proprietary rights, or for breach of contractual rights.
Violation of License Agreement
The Customer acknowledges that any violation of the rights of the Corporation under this License Agreement will cause the Corporation immediate and irreparable harm. Therefore, upon any actual or impending violation of this License Agreement, the Corporation shall be entitled to the issuance of a restraining order, preliminary and permanent injunction without bond, restraining or enjoining such violation by the Customer, its successors or assigns or any entity or person acting in concert with the Customer. Such remedy shall be in addition to and not in limitation of any other remedy which may otherwise be available to the Corporation.
DESIGNATED USERS AND SECURITY
Each person authorized by the Customer to access and use the SpendMap Licensed Materials (a “Designated User”) will be assigned a unique Designated User identification name and password for access to and use of the SpendMap Licensed Materials (“Designated User ID”). A Designated User ID allows the Designated User to access and use the SpendMap Licensed Materials and to enter, change or delete data entered by Designated Users while accessing or using the SpendMap Licensed Materials including personal information (“Customer Information”). The Customer shall be responsible for ensuring the security and confidentiality of all Designated User ID’s. The SpendMap Licensed Materials shall be used only by Designated Users. The Customer acknowledges that it will be fully responsible for all liabilities incurred through use of any Designated User ID (whether lawful or unlawful) and that any transactions completed under a Designated User ID will be deemed to have been lawfully completed by the Customer.
CONSENT TO COLLECTION OF CUSTOMER INFORMATION and privacy
The Customer and its Designated Users will be solely responsible for providing all Customer Information. The Customer hereby grants to the Corporation all necessary licenses in and to any intellectual property rights embodied in such Customer Information necessary for the Corporation to fulfill its obligations to the Customer under this License Agreement. By submitting Customer Information about the Customer or its Designated Users to the Corporation through use of SpendMap Licensed Materials, the Customer consents to the collection, use, processing, transmission, and/or disclosure of such information by the Corporation and/or its affiliated companies, and the Customer warrants that it has obtained all consents necessary under applicable law from its Designated Users to disclose their Customer Information to the Corporation and/or its affiliated companies and for the Corporation and/or its affiliated companies to collect, use, process, transmit, and/or disclose such Customer Information in strict accordance with the Corporation’s privacy policy which is available on the Corporation’s website. The Parties agree to comply with all applicable privacy laws applicable to personal information that may be contained in the Customer Information. Nothing herein restricts the right of the Corporation to use such information in order to provide services to the Customer and other customers including the use of Customer Information for the purposes described herein or in an aggregated manner which respects privacy obligations. The Customer shall not, and shall not permit any Designated User to, provide Customer Information that: (A) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation, or is defamatory, harmful to minors, obscene or child pornographic; (B) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information; or (C) is materially false or misleading. The Corporation may take remedial action if Customer Information violates this section; provided, however, the Corporation is under no obligation to review Customer Information for accuracy or potential liability.
CONFIDENTIALITY
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether electronically, orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information shall include Customer Information; the Corporation’s Confidential Information shall include the SpendMap Licensed Materials provided hereunder; and Confidential Information of each party shall include, without limitation, the business and marketing plans, technology and technical information, product plans and designs, the results obtained from using SpendMap and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this License Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information. The parties’ obligations of confidentiality shall survive termination of this License Agreement.
COMPETITIVE USE
The Customer agrees that during the term of this License Agreement, the Customer shall not, directly or indirectly, develop for or lease, license or sell to a third party not listed on Schedule A hereto, or negotiate to contract to develop for or lease, license or sell to a third party not listed on Schedule A hereto, any software similar to that supplied under this License Agreement, but this paragraph shall not be construed to prohibit the Customer from acquiring, for its own use, software from third parties or from developing its own software, for its own use, or for lease, license or sale to any of the parties listed on Schedule A hereto provided that the SpendMap Licensed Materials are not used in such activities.
TERMINATION
1. Automatic Termination
This License Agreement and the term of the license granted hereunder shall be automatically terminated if any of the following occur:
(a)The Customer attempts to use, copy, sub-license, or convey SpendMap Licensed Materials, or any portion thereof, in a manner contrary to the terms of this License Agreement or in competition with the Corporation or in derogation of the Corporation’s proprietary rights, whether such rights are explicitly stated in this License Agreement, granted by operation of law, or otherwise.
(b)The Customer breaches any provision of this License Agreement, including for greater certainty, by failing to make a payment of any fees owed to the Corporation pursuant to this License Agreement, the Annual Maintenance Agreement, the Purchase Agreement or any other agreement related to this License Agreement, the Annual Maintenance Agreement or the Purchase Agreement or by using SpendMap by more than the licensed number of users set out in the Purchase Agreement, provided, however, that if in the opinion of the Corporation such breach was inadvertent, the Corporation may first give the Customer notice of such breach and the Customer shall thereupon have ten (10) business days from the delivery of such notice to remedy the default.
In the event that this License Agreement is terminated pursuant to either (a) or (b) of this section, the Customer shall pay to the Corporation all attorney fees, collection fees, and related expenses, expended or incurred by the Corporation in the enforcement of any right or privilege hereunder.
The Corporation shall have, in addition to any other remedies available to it, the right to equitable relief; the Customer hereby acknowledges that other remedies are inadequate.
2. Termination by the Customer
The Customer may terminate this License Agreement at any time upon the destruction of all copies of the SpendMap Licensed Materials in the Customer’s possession, including, for greater certainty, all original software media and all media containing copies of the SpendMap Licensed Materials, all copies of documentation and other materials relating to the SpendMap Licensed Materials, and the Customer must provide written notice of cancellation of this License Agreement to Palmas Development Corporation as described under the heading “Notices”, below.
GENERAL
1.Certain Rules of Interpretation
(a)Headings – The captions and headings contained herein are for convenient reference only, and shall not in any way affect the meaning or interpretation of this License Agreement.
(b)Consent – Whenever a provision of this License Agreement requires an approval or consent by a party to this License Agreement and notification of such approval or consent is not delivered within the applicable time limit, then, unless otherwise specified, the party whose consent or approval is required shall be conclusively deemed to have withheld its, his or her approval or consent.
(c)Time – The parties agree that time shall be of the essence in all respects of this License Agreement.
(d)Including – Where the word “including” or “includes” is used in this Agreement, it means “including without limitation” or “includes without limitation”.
(e)Plurals and Gender – The use of words in the singular or plural, or referring to a particular gender, shall not limit the scope or exclude the application of any provision of this License Agreement to such persons or circumstances as the context otherwise permits.
2.Amendments
This License Agreement may not be amended, modified, superseded or cancelled, nor may any of the terms, covenants, representations or conditions thereof be waived, except as provided herein or as otherwise agreed in writing between Customer and the Corporation. No waiver by either the Customer or the Corporation of any condition, or of any breach of any term, covenant, representation, or warranty contained herein, in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such condition or breach or waiver of any other condition or of any breach or any other term, covenant, representation or warranty.
3.Assignment and Enurement
The Corporation may assign this License Agreement without notice to the Customer. Except as may be expressly set forth in this License Agreement, the Customer’s rights hereunder to use the SpendMap Licensed Materials, or any portion thereof, may not be assigned, sub-licensed or transferred to a successor, affiliate, or any other person, firm, corporation, or organization, voluntarily, by operation of law, or in any other manner without the prior written consent of the Corporation. Any attempted assignment by the Customer of any of its rights, duties and obligations pursuant to this License Agreement without the consent of the Corporation shall be void. For greater certainty, the Corporation hereby consents to the sub-licensing of SpendMap Licensed Materials by the Customer to any of the parties listed on Schedule A hereto; provided that such assignment is not effective until such parties agree in writing to be bound to the terms of this License Agreement as though they were parties hereto and provided that the Customer may at no time sub-license if such proposed sub-licensing would result in SpendMap being in use by more than the number of users licensed by Customer as set out in the Purchase Agreement.
The Customer’s rights and obligations under this License Agreement shall enure to and be binding upon the Customer, its employees, agents, representatives and persons associated with it, their personal representatives, heirs, successors in interest, assigns and any successor in interest to substantially all of the assets of the Customer.
4.Entire Agreement
This License Agreement, including the Purchase Agreement and the other Schedules attached hereto, constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior agreements, arrangements, and understandings related to such subject matter.
5.Force Majeure
Except for obligations to make payments, neither party shall be liable for any failure to perform or delay in performing any obligation under this License Agreement if such failure is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, government action, riot, insurrection, damage, destructibility component or materials shortage, or any other cause beyond the reasonable control of such party.
6.Governing Law and Jurisdiction
This License Agreement will be governed, construed and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. The parties hereby irrevocably and unconditionally attorn to the non-exclusive jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals therefrom.
7.Language
The Customer agrees and understands that this License Agreement, as well as all other documents relating hereto, including Notices, have been and shall be drawn up in the English language only.
Le client comprend et accepte que ce Contrat de Licence, ainsi que tous autres documents liés aux présentes, y compris les Avis, ont été et doivent être rédigés uniquement dans la langue anglaise.
8.Notices
Unless otherwise specified, each notice to a party must be given in writing and delivered personally or by courier or transmitted by e-mail to the parties as follows:
If to the Corporation:
45 Sheppard Avenue East, Suite 900
Toronto, Ontario
Canada M2N 5W9
e-mail: support@spendmap.com
If to Customer: To the mailing address indicated on the Purchase Agreement or any e-mail address indicated on the Annual Maintenance Agreement.
or to any other address, e-mail address or other person that the party designates in writing. Any notice, (A) if given personally or by courier will be deemed to have been given when actually received, (B) if transmitted by e-mail before 3:00 p.m. (local time) on a business day, will be deemed to have been given on the business day and (C) if transmitted by e-mail after 3:00 p.m. (local time) on a business day or on a day that is not a business day, will be deemed to have been given on the following business day.
9.Severability
Should any provision hereof be held illegal or non-enforceable to any extent by a court of competent jurisdiction, such provision shall be deemed severable from this License Agreement and shall not affect the validity or enforceability of all other provisions of this License Agreement. The Customer hereby acknowledges that every limitation of liability, disclaimer of warranties or exclusion of damages is intended to be severable and independent of any such other provision and is to be enforced as such. Each provision of this License Agreement shall be legal, valid and enforceable to the fullest extent permitted by law.
10.Survival
All sections of this License Agreement which by their nature are intended to survive any termination of this License Agreement shall do so.
11.Waiver
Except as otherwise expressly set out herein, no waiver of any provision of this License Agreement shall be binding unless it is in writing. No indulgence, forbearance or other accommodation by the Customer or the Corporation shall constitute a waiver of such party’s right to insist on performance in full and in a timely manner of all covenants in this License Agreement or in any document delivered pursuant to this License Agreement. Waiver of any provision shall not be deemed to waive the same provision thereafter, or any other provision of this License Agreement at any time.
Schedule A
List of permitted sub-licensees
•None.
Schedule B
Specifications of SpendMap
•Help System.
•SpendMap New System Installation Guide and other miscellaneous related support documentation.
