Software license agreement general terms
THIS AGREEMENT is made as of the purchase date (the “Effective Date”), between Premier Tech Digital, a corporation under the laws of Canada, having its registered office at 1, Avenue Premier Rivière du Loup (Québec) Canada G5R 6C1 (“Supplier”) and the purchaser of the license (“Customer”).
WHEREAS the Supplier owns or licenses the Software described in this Agreement;
WHEREAS the Customer desires to license the Software on the terms provided in this Agreement;
WHEREAS the Supplier and the Customer agree that this Agreement provides the general terms and conditions of use in relation with the license of the Software, and that such Agreement shall be completed as the case may be, with more specific provisions to be detailed in a separate agreement signed by the parties.
THE TERMS BELOW CONSTITUTE THE AGREEMENT BEWTWEEN THE PARTIES :
1 Interpretation
1.1 Definitions. In this Agreement:
“Affiliate” means, when used to indicate a relationship with a specified Person, a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such specified Person and a Person shall be deemed to be controlled by another Person if controlled in any manner whatsoever that results in control in fact by that other Person (or that other Person and any Person or Persons with whom that other Person is acting jointly or in concert), whether directly or indirectly, and whether through the ownership of securities, a trust, a contract or otherwise.
“Agreement” means this software license agreement and all schedules, whether attached or incorporated by reference, in each case, as supplemented, amended, restated or replaced from time to time by a written agreement signed by the Parties.
“Applicable Law” means: (i) any domestic or foreign statute, law (including the common and civil law and equity), constitution, code, ordinance, rule, regulation, restriction, regulatory policy or guideline having the force of law, by-law (zoning or otherwise) or order; (ii) any consent, exemption, approval or license of any Governmental Authority; and (iii) any policy, practice or guideline of, or contract with, any Governmental Authority which, although not actually having the force of law, is considered by such Governmental Authority as having the force of law.
“Business Day” means any day of the week other than a Saturday, Sunday or statutory or civic holiday in the province of Quebec, Canada.
“Customer Data” means any data provided by Customer to Supplier or any data stored into the Software platform in order to use the Software.
“Governmental Authority” means: (i) any court, judicial body or arbitral body; (ii) any domestic or foreign government whether multinational, national, federal, provincial, territorial, state, municipal or local and any governmental agency, governmental authority, governmental tribunal or governmental commission of any kind whatever; (iii) any subdivision or authority of any of the foregoing; (iv) any quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of the above; (v) any supranational or regional body such as the World Trade Organization; and (vi) any stock exchange.
“Including” means “including without limitation” and the term “including” shall not be construed to limit any general statement which it follows to the specific or similar items or matters immediately following it.
“License Fee” means the license fee to be paid by Customer to Supplier for license of the Software.
“Modifications” means any enhancements, changes, corrections, improvements, translations, localizations, adaptations, revisions, developments, derivatives, Upgrades or Updates thereto; and “Modify” shall mean the creation of any of the foregoing.
“Parties” means Supplier and Customer.
“Person” shall be broadly interpreted and includes an individual, body corporate, partnership, joint venture, trust, association, unincorporated organization, any Governmental Authority, the executors, administrators or other legal representatives of an individual or any other entity recognized by law and pronouns have a similarly extended meaning.
“Software” means: (a) the software described in Schedule A; (b) any documentation related to the Software which is provided from time to time by Supplier to Customer under this Agreement; and (c) all Updates and Upgrades to such software provided from time to time by Supplier to Customer under this Agreement or under any separate support services or software maintenance agreement.
“Term” means the period commencing on the Effective Date and continuing for one year, automatically renewable.
“Territory” means the Québec territory.
“Update" means changes to software or documentation to correct errors or defects or to make such software or documentation conform to published specifications.
“Upgrade” means improvements, enhancements, additions or changes to software or documentation other than Updates, including all those which: (a) provide a new or enhanced capability; (b) improve performance; or (c) replace any portion thereof.
“Use” means to use, execute, run, display, store, copy, network or host.
1.2 Headings and References. The division of this Agreement into paragraphs and schedules and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The paragraph and schedule headings in this Agreement are not intended to be full or precise descriptions of the text to which they refer and are not to be considered part of this Agreement. All uses of the words “hereto”, “herein”, “hereof”, “hereby” and “hereunder” and similar expressions refer to this Agreement as a whole and not to any particular paragraph or portion of it. References to a paragraph or schedule refer to the applicable paragraph or schedule of this Agreement unless otherwise specifically provided.
1.3 Schedule. Schedule A providing a software description is integrated herein and forms an integral part to this Agreement.
1.4 Applicable Law. This Agreement will be governed by, and interpreted and enforced in accordance with, the laws in force in Québec. Each Party irrevocably submits to the jurisdiction of the courts of Québec, District of Kamouraska with respect to any matter arising hereunder or related hereto.
1.5 Currency. Unless specified otherwise, all statements of or references to dollar amounts in this Agreement are in Canadian dollars.
2 License of Software and copies of the Software
2.1 License of Software. Supplier hereby grants to Customer, for the Term or until the earlier termination of this Agreement, a non-exclusive, non-assignable license to Use the Software in the Territory. Customer shall have no right to use, license, sublicense, distribute, lend, lease, rent or otherwise transfer or allow others to use the Software, except as specifically provided in this Agreement. Customer shall have no right to modify the Software without the prior written approval of Supplier. Customer shall not reverse engineer, decompile or disassemble any of the Software.
2.2 Copies of the Software. At any time Customer shall not be allowed to make any copy of the Software, unless specifically agreed by Supplier.
2.3 Receipt and Acceptance of Software. Customer acknowledges receipt of a copy of the object code for the Software.
2.4 Updates and Upgrades. Supplier may from time to time provide Updates or Upgrades to Customer. All such Updates and Upgrades shall be considered Software and shall be subject to the terms of this Agreement.
2.5. Modifications. Supplier may modify the Software at any time with or without prior notice to the Customer. The Customer agrees that Supplier shall not be liable to the Customer or any third party for any modification of the Software.
3 Data
3.1 Confidential data. The Customer Data is deemed Confidential Information under this Agreement and Supplier agrees to act in order to maintain such confidentiality. The Customer is responsible for ensuring that it maintains the confidentiality of its passwords and user names.
3.2 Statistical Information. Supplier may monitor Customer's use of the Software and use data related to Customer's use in order to compile statistical and performance information related to the provision and operation of Software or to support benchmarking or similar features of the Software. Customer agrees that Supplier may make such information publicly available, in an aggregate and anonymous manner, without identifying in any way the Customer or its Confidential Information. Supplier retains all Intellectual Property rights in such statistical and performance information.
3.3 Customer’s Data. The Customer retains all rights on its data. The data stored in the cloud shall be transferred to the Customer at market cost, including the use of the cloud and the time.
4 License Fee
4.1 License Fee. The consideration for the license (the “License Fee”) will be specified on a case-by-case basis in a separate agreement or purchase order. Customer shall pay the License Fee to Supplier, based on the Customer’s needs and/or requirements to be detailed in a separate document.
4.2 Taxes. All amounts specified in this Agreement or in other related documents are exclusive of any applicable taxes, assessments and withholding requirements. Accordingly, in addition to the amounts and other charges required to be paid by Customer to Supplier, Customer shall also pay for all applicable taxes, duties, levies, imposts, sales taxes, use taxes, value added taxes, goods and services taxes, harmonized sales taxes, stamp taxes, fees, assessments, withholdings, dues and other similar charges of any nature whatsoever, including any interest and penalties, imposed or collected by any Governmental Authority.
4.3. Cloud Services. Unless specified otherwise in a separate contract, this Agreement does not include free hardware nor cloud hosting. Any additional fees shall be detailed in a separate contract.
5 Other Covenants of the Parties
5.1 Maintenance and Support Services. Supplier is not obligated to provide any maintenance or support services under this Agreement. Any maintenance and support services shall be governed by the terms of a separate agreement to be negotiated between the Parties.
5.2 Software availability. Supplier will use commercial reasonable efforts to make the Software available with minimal downtime twenty-four (24) hours a day, seven (7) days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Supplier will endeavor to provide at least forty-eight (48) hours advance notice, except for routine maintenance times), or (b) any unavailability caused by circumstances beyond Supplier's reasonable control, including without limitation, acts of God, pandemics, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or the unavailability or modification of Third Party Offerings.
5.3 Updating of functionalities. Supplier will host the Software and may update the functionality and user interface of the Software from time to time in its sole discretion as part of its ongoing improvement of the Software. The Software may be subject to certain limitations.
5.4 Monitoring of the use of the Software. Supplier shall monitor all use of the Software for security and operational purposes. Supplier may temporarily suspend the Customer's access to the Software in the event that the Customer is engaged in (or Supplier in good faith suspects the Customer is engaged in), any unauthorized conduct (including any violation of this Agreement, any applicable law or third party right, including the terms of any Third Party Offering on which the Customer's use of the Software relies). Supplier will attempt to contact the Customer prior to or contemporaneously with such suspension; provided, however, that Supplier's exercise of the suspension rights herein shall not be conditioned upon the Customer's receipt of any notification.
5.5 Ownership of Software. Supplier retains all rights in the Software not expressly granted to Customer hereunder.
5. 5.1 Subject only to the license granted to Customer in this Agreement, Supplier shall retain and own all right, title and interest in the Software, and all intellectual property rights with respect thereto, including:
(a) any Modification of Software created for Customer by Supplier and all intellectual property rights with respect thereto; and
(b) any other Modification of Software created by or for Customer and all intellectual property rights with respect thereto, whether created with the consent of Supplier or in breach of this Agreement.
5.6 Intellectual Property Indemnity
5.6.1 Supplier, at its expense, will defend, indemnify and save harmless Customer from any claim, proceeding, action, damages, expenses or costs brought against Customer to the extent based on a claim that the Software supplied by Supplier infringes any patent, copyright or trade-secret of any third party (“IP Infringement Claims”); provided however that:
(a) Customer promptly notifies Supplier in writing within 30 days of Customer’s first knowledge of an IP Infringement Claim; provided however that this provision shall only excuse the obligation of Supplier hereunder to the extent that Supplier suffers actual prejudice as a result;
(b) Customer agrees to allow Supplier to fully control any litigation and settlement of such IP Infringement Claim; provided that Customer may at its own cost appoint its only counsel to monitor any such litigation and settlement proceedings to the extent that the same relate to or might affect Customer;
(c) Customer shall not knowingly do or omit to do anything in relation to an infringement or alleged infringement which could increase any IP Infringement Claim;
(d) Customer shall at the request of Supplier afford to Supplier all reasonable assistance for the purpose of investigating and/or contesting any IP Infringement Claim; and
(e) Customer shall not make any admissions which might be prejudicial to the defense or settlement of any IP Infringement Claim.
5.6.2 Supplier also agrees to indemnify Customer from any judgment finally awarded, for which all avenues of appeal have been exhausted, or any final settlement in connection with any such IP Infringement Claims, provided all of the conditions set out above related to the defense of such IP Infringement Claims are satisfied.
5.6.3 In the event Customer is enjoined from its use of the Software as a result of any such third-party claim or, in the event that the Software becomes, or in Supplier’s sole opinion, is likely to become the subject of an IP Infringement Claim, Supplier may, at its option and expense and without limiting its indemnification obligations hereunder, either: (i) procure for Customer the right to continue using the Software; (ii) replace the Software with non-infringing software satisfactory to Customer, acting reasonably; or (iii) modify the Software to be non-infringing (in a manner that is acceptable to Customer, acting reasonably).
5.7 Limited Warranty. Supplier warrants that the Software will perform substantially in accordance with the documentation provided by Supplier as long as the Customer (i) continues to pay the recurring cost for the Software / Software support and (ii) the Software version in use is still on the “supported versions” list.
5.8 Exclusion of Certain Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THERE ARE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESSED OR IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, AND SUPPLIER SPECIFICALLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
6 Limitation of Liability
6.1 Limitation on Claims. Except as provided below, the aggregate liability of Supplier to Customer, and the aggregate liability of Customer to Supplier, under this Agreement for money damages resulting from all claims made by the other shall not exceed an amount equal to the price paid by Customer for professional services and products as of the date of the Claim is settled. Such damages shall be the full extent of each Party’s aggregate monetary liability to the other under this Agreement, regardless of the form in which any such legal or equitable claim or action may be asserted against the other and shall constitute such Party’s sole monetary remedy. The provisions of this para. 6.1 shall not apply to: (a) any claims in respect of death or personal injury arising out of the negligence of either Party, its servants or agents; (b) the gross negligence or willful misconduct of Supplier or Customer; or (c) claims arising in relation to a breach of para. 4.
6.2 No Consequential Damages, etc. Neither Party shall be liable to other Party for any special, indirect, aggravated, punitive or consequential damages, loss of profits or revenue, cost of capital, or claims of contractors, suppliers or customers (whether arising out of service errors, service unavailability, or otherwise), whether foreseeable or not, arising out of, or in connection with: (a) any breach of this Agreement; or (b) any breach of contract, breach of warranty, tort, negligence, strict liability or any other theory of liability relating to the subject matter of this Agreement, or to the other Party’s performance or non-performance of its obligations under this Agreement; and all claims with respect to any of the foregoing are hereby specifically waived and released.
6.3 Limitations Protect Affiliates, etc. Every exemption from liability, limitation and condition contained in this Agreement for the benefit of a Party and every defense and immunity of whatsoever nature applicable to a Party or to which a Party is entitled under this Agreement will also be available and will extend to protect every Affiliate of such Party, and every director, officer, employee, agent, subcontractor and supplier from time to time of such Party or of any such Affiliate, and each such Person is an intended third party beneficiary of all such provisions and this para. 6.3.
7 Term, Termination and Default
7.1 Term. This Agreement shall become effective on the Effective Date and shall remain in effect during the Term, unless earlier terminated in accordance with the provisions of this Agreement.
7.2 Termination for Default. Either Customer or Supplier (referred to in this paragraph as the “Terminating Party”) may terminate this Agreement by notice in writing to the other Party (the “Defaulting Party”) if the Defaulting Party is in breach of any material term of this Agreement and such failure has continued for a period of 30 days after notice of such breach has been sent to the Defaulting Party from the Terminating Party.
7.3 Effect of Termination on Obligations. Termination of this Agreement will not affect any pre-termination obligations of either Party under this Agreement, and any termination is without prejudice to the enforcement of any undischarged obligations existing at the time of termination. The express rights of termination in this Agreement are in addition to, and shall in no way limit, any rights or remedies Customer or Supplier may have under this Agreement, at law or in equity.
7.4 Survival. For greater certainty, the following provisions of this Agreement shall survive the termination or expiry of this Agreement: paras. 4, 5.5, 5.8, 6, 7.3 and 8, as well as those paragraphs that by their nature are intended to survive the termination or expiry of this Agreement.
8 General
8.1 Time. Time is of the essence of each provision of this Agreement.
8.2 Notices. Any notice, direction, request or other communication required or contemplated by any provision of this Agreement shall be given in writing and will be given by delivering or faxing the same to the Parties as follows:
If to Supplier, at:
Premier Tech Digital
Attention: Martin Lambert
with a copy to : [email protected]
Notices to Customer shall be determined separately.
Any such notice, direction, request or other communication will be deemed to have been given or made on the date on which it was delivered or, in the case of e-mail, on the next Business Day after receipt of transmission. Either Party may change its address for service from time to time by written notice in accordance with this paragraph.
8.3 Assignment. This Agreement is not assignable by either Party in whole or in part without the prior written consent of the other Party.
8.4 Further Assurances. Each Party shall do such acts and will execute such further documents, conveyances, deeds, assignments, transfers and the like, and will cause the doing of such acts and will cause the execution of such further documents as are within its power as any other Party may in writing at any time and from time to time reasonably request be done and or executed, in order to give full effect to the provisions of this Agreement.
8.5 Remedies Cumulative. The rights and remedies of the Parties under this Agreement are cumulative and in addition to and not in substitution for any rights or remedies provided by law. Any single or partial exercise by any Party hereto of any right or remedy for default or breach of any term, covenant or condition of this Agreement does not waive, alter, affect or prejudice any other right or remedy to which such Party may be lawfully entitled for the same default or breach.
8.6 Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, undertakings, statements, arrangements, promises, representations and agreements, whether written or oral, between the Parties. There are no representations, warranties, conditions, undertakings, commitments, other agreements or acknowledgments, whether direct or collateral, express or implied, that form part of or affect this Agreement, or which induced any Party to enter into this Agreement or on which reliance is placed by any Party, except as specifically set forth in this Agreement.
8.7 Amendment. This Agreement may be amended, modified or supplemented only by a written agreement signed by each Party.
8.8 Waiver of Rights. Any waiver of, or consent to depart from, the requirements of any provision of this Agreement will be effective only if it is in writing and signed by the Party giving it, and only in the specific instance and for the specific purpose for which it has been given. No failure on the part of any Party to exercise, and no delay in exercising, any right under this Agreement will operate as a waiver of such right. No single or partial exercise of any such right will preclude any other or further exercise of such right or the exercise of any other right.
8.9 Counterparts. This Agreement may be executed in any number of counterparts. Each executed counterpart will be deemed to be an original. All executed counterparts taken together will constitute one agreement.
8.10 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the terms of this Agreement remain as originally contemplated to the fullest extent possible.
Updated April 2020