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Bannister Lake Software Inc.

End User Software License Agreement

This License Agreement is a legal agreement between you (the Licensee) and Bannister Lake Software Inc. (Bannister Lake) specifying the terms and conditions of your installation and use of the software sold and delivered to you by Bannister Lake concurrently with the delivery to you of this Agreement, as well as all user manuals, instruction guides and other training documentation of any kind in connection therewith (in electronic, hard copy or other media) (such software is hereinafter called Software and such documentation is hereinafter called Documentation). By downloading, accessing, installing or using the Software and/or Documentation the Licensee agrees to the terms of this Agreement and the License shall be effective from such date. If you do not wish to accept the terms and conditions of this Agreement, do not download, access, install, refer to or otherwise use the Software or Documentation.

1.    DEFINITIONS. In this Agreement, the following terms shall have the meanings set out below:

Affiliate means, with respect to any Person, any other Person who directly or indirectly controls, is controlled by, or is under direct or indirect common control with, such Person, and includes any Person in like relation to an Affiliate. A Person shall be deemed to control a Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the term controlled and controlling shall have a similar meaning;

Agreement means this End User License Agreement including the recitals hereto and all schedules annexed to this Agreement as the same may be amended from time to time in accordance with the provisions hereof, hereof, hereto and hereunder and similar expressions mean and refer to this Agreement and not to any particular article or section;

Article or Section means and refers to the specified article or section of this Agreement;

Confidential Information means all data and information relating to the business and management of either Party, including the Software, trade secrets and other technology to which access is obtained hereunder by the other Party, and any materials provided by Bannister Lake to Licensee provided, however, that Confidential Information shall not include any data or information which:

(i)    is or becomes publicly available through no fault of the other Party;

(ii)    is already in the rightful possession of the other Party prior to its receipt from the other Party;

(iii)    is already known to the receiving Party at the time of its disclosure to the receiving Party by the disclosing Party and is not the subject of an obligation of confidence of any kind;

(iv)    is independently developed by the other Party;

(v)    is rightfully obtained by the other Party from a third party;

(vi)    is disclosed with the written consent of the Party whose information it is; or

(vii)    is disclosed pursuant to court order or other legal compulsion;

Designated Equipment shall mean the hardware products sold by Bannister Lake to the Licensee  with which the Software is licensed for use, as the same may be replaced from time to time by Bannister Lake or, in the case of Software sold on a stand-alone basis, the equipment of the Licensee that is identified to Bannister Lake as the equipment on which the Software is to be installed and is approved by Bannister Lake as equipment on which the Software will operate;

Documentation shall mean manuals, user documentation and other related materials pertaining to the Software that are furnished to the Licensee by or on behalf of Bannister Lake in relation to the Software;

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; and includes means includes without limitation;

Improvements means all inventions, works, discoveries, improvements and innovations of or in connection with the Software including without limitation error connections, bug fixes, patches and other updates made by or on behalf of Bannister Lake;

Modifications means any enhancements, changes, corrections, improvements, translations, adaptations, revisions, developments, upgrades or updates thereto; and Modify shall mean the creation of any of the foregoing;

Object Code means the machine readable executable form of a computer software program;

Parties means both Bannister Lake and Licensee and Party means either one of them as the context requires;

Person includes an individual, sole proprietorship, corporation, limited liability corporation, not-for-profit corporation, partnership, trust, association, joint venture, unincorporated organization, the Crown or any agency or instrumentality thereof and any other judicial entity recognized by law;

Software shall mean the computer programs in machine readable object code form sold and delivered to the Licensee by Bannister Lake concurrently with delivery of this Agreement and any subsequent error corrections, updates or Modifications provided to the Licensee by Bannister Lake pursuant to this Agreement as well as Improvements.

Source Code means the human readable form of a computer software program, all tools and documentation necessary for a reasonably computer programmer to understand, maintain and Modify the software;

Use means to execute, run, display, store, copy, make, use, sell, merge, network, Modify, translate, host, outsource, integrate with Licensees products or other third party software;

Maintenance Period in connection with the Software is one (1) year from date of shipment;

 

2.    LICENCE. Subject to the terms of this Agreement, Bannister Lake hereby licenses to Licensee, for the internal use of Licensee only, a, non-transferable (except as provided in Section 14 of this Agreement) and non-exclusive right to Use the Software and Documentation. If the Software has been sold together with or installed on Designated Equipment provided by Bannister Lake, then Licensee shall use the Software only on a primary system of such Designated Equipment and the Licensees license of the Software and Documentation shall terminate with termination of the Licensees ownership of the Designated Equipment. If the Software was sold on a stand-alone basis, then the Software shall be used solely in connection with or installed upon the Designated Equipment of the Licensee that is identified by the Licensee to Bannister Lake and approved by Bannister Lake. The Software and Documentation are provided for exclusive use by Licensees organization for its ordinary business purposes and not by others or for any extraordinary purpose. Licensee may redistribute copies of the Software as required for backup and archival purposes. Licensee may distribute copies of the Software and Documentation to members of its organization, provided this Agreement is included with each copy and provided that any member of its organization who uses the Software or Documentation accepts and agrees to be bound by this Agreement and by any other license agreements and other agreement incorporated by reference into this Agreement. Where a copy is permitted, the Licensee agrees to reproduce and include on any copy made or portion merged into another work, all Bannister Lake proprietary notices, including without limitation any notices with respect to this license, copyrights and trademarks.

3.    LICENCE RESTRICTIONS. Except as otherwise provided in section 2 above, Licensee shall not: (1) other than as provided in section 2, copy any Software or Documentation, or part thereof, which is provided to the Licensee by Bannister Lake pursuant to this Agreement, in human readable form, such as written or printed documents, without the prior written consent of Bannister Lake; or copy any Software, or part thereof, which is provided to the Licensee by Bannister Lake pursuant to this agreement, in machine readable form, without the written consent of Bannister Lake, with the exception of saving or copying for backup or archival purposes, in such circumstances the Licensee agrees to keep a record of the number and location of all such copies and will make such record available at Bannister Lakes request; (2) market, distribute, export, translate, transmit, merge, Modify, transfer, adapt, loan, rent, lease, assign, share, sub-license or make available to another Person, the Software or the Documentation in any way, in whole or in part with the exception that the prohibition on rental or lease of the Software shall not apply to a Licensee to whom Bannister Lake delivers the Software in circumstances where Bannister Lake has prior knowledge that the Licensee is in the business of renting or leasing software; (3) reverse engineer, decompile or disassemble the Software or electronically transfer it into another computer language; (4) or otherwise use the Software or the Documentation except as authorized herein. Licensee agrees to take all reasonable precautions to prevent third parties from using the Software and/or the Documentation in any way that would constitute a breach of this Agreement including, without limitation, such precautions as Licensee would otherwise take to protect its own proprietary software or hardware or information. The Software may include mechanisms to limit or inhibit copying.

4.     DELIVERY Bannister Lake shall deliver to the Licensee a master copy of the Software in compiled binary (executable) form suitable for reproduction, in electronic files only and Bannister Lake shall deliver to the Licensee a minimum of one copy of the Documentation (the Shipment).

5.    IMPROVEMENTS Improvements shall include error corrections, bug fixes, patches or other updates in object code form to the extent available in accordance with Bannister Lakes release schedule. The Licensee may from time to time request Bannister Lake to incorporate certain Improvements such as features, enhancements or modifications into the Software. Bannister Lake may, in its sole discretion, undertake to incorporate and provide such Improvements to the Licensee with or without payment of a fee to be negotiated at the time. All such Improvements, whether recommended and developed by Bannister Lake or Licensee shall be considered the sole property of Bannister Lake and shall be used by the Licensee pursuant to the terms of this Agreement.  

6.    Bannister Lakes LIMITED REPRESENTATIONS AND WARRANTIES.

(A) Software Warranties

Bannister Lake represents and warrants that:

During the Maintenance Period the Software is warranted to be free from defects in materials and workmanship under normal use and that during the Maintenance Period the Software will materially perform when properly installed and used with the Designated Equipment in accordance with this Agreement.

Bannister Lake has the authority to enter into this Agreement, is the owner or licensee of the Software and Documentation and has the right to grant all of the license rights herein.

Bannister Lake has not granted any rights or licenses to the whole or any part of the Software or any other intellectual property or technology that would conflict with this Agreement;

To the best of Bannister Lakes knowledge, and except as expressly stated herein, no portion of the Software, as delivered to the Licensee, contains any disabling mechanism or protection feature designed to prevent its use. This includes, without limitation, any computer virus, worm, lock, drop dead device, Trojan-horse routine, trap door, time bomb or any other codes or instructions that may be used to access, modify, delete, damage or disable the Software or any other hardware or computer system.

Bannister Lake represents and warrants to Licensee that the Software, if properly installed and used with Designated Equipment, will perform substantially as described in Bannister Lakes then current Documentation for such Software for the Maintenance Period.

(B) Warranty Exclusions and Inclusions

Notwithstanding the above, all of Bannister Lakes obligations with respect to such warranties shall be contingent on the Licensees use of the Software in accordance with this Agreement and Bannister Lakes instructions as provided in the Documentation, as amended from time to time by Bannister Lake. Bannister Lake shall have no warranty obligations where any Software failure occurs as a result of misuse, neglect, accident, abuse, misapplication, improper installation, unauthorized modification, extreme power surge or extreme electromagnetic field.  Bannister Lake shall pass through to the Licensee the benefit of all third party manufacturers / suppliers warranties.

(C) Remedy

If the Software becomes defective, and a valid claim is received by Bannister Lake during the Maintenance Period, Bannister Lake will at its sole option and sole discretion: (1) repair the defective software at no charge, or (2) exchange the defective software for a comparable product at no charge and this shall be the full extent of the remedy of the Licensee.   

(D) Maintenance Charges

Technical support for the Software by telephone and email contact with Bannister Lake is provided by Bannister Lake to the Licensee at no extra charge during the maintenance period. During the Maintenance Period, Bannister Lake shall supply downloadable Software upgrades upon request of the Licensee, when available, at no extra charge to the Licensee.  Notwithstanding the foregoing, Bannister Lake shall be under no legal obligation to create or release Software upgrades at any time or in accordance with a fixed schedule.  Upon expiry of the Maintenance Period, where applicable, the Licensee may purchase Software maintenance, including downloadable Software upgrades in one (1) year increments at the then applicable extended maintenance fee rates offered by Bannister Lake, in which case the warranties granted by this Agreement shall be applicable during each such one (1) year term.    

7.    OWNERSHIP. The Parties acknowledge and agree that as between the Parties, Bannister Lake shall be the owner of all intellectual property rights in the Software, Documentation and all related Modifications and Improvements, written materials, logos, trademarks, trade names, copyright, patents, trade secret and moral rights, registered or unregistered. No proprietary interest or title in or to the intellectual property in the Software, Documentation or any Improvements or Modifications is transferred to Licensee by this Agreement. Bannister Lake reserves all rights not expressly licensed to Licensee under section 2.

8.    INTELLECTUAL PROPERTY INDEMNITY. Bannister Lake agrees to defend, indemnify and hold harmless Licensee from final damages awarded by a court of competent jurisdiction for third-party claims. (hereinafter referred to as the Losses), which Licensee or any of its respective officers or directors, may incur, suffer or become liable for as a result of, or in connection with, any third party claim asserted against Licensee to the extent such claim is based upon a contention that the Software, Documentation or any portion thereof, used within the scope of this Agreement infringes any valid, registered, enforceable patents, copyrights, trade secrets, trademarks or other intellectual property rights of any third party, provided that Licensee has notified Bannister Lake in writing of such claim within ten (10) days of a responsible officer of Licensee becoming aware of such claim. If the Software, Documentation or any portion thereof is held to constitute an infringement of another Persons rights, and use thereof is enjoined, Bannister Lake shall, at its election and expense, either:

(i)    procure the right to use the infringing element of the Software or Documentation; or

(ii)    replace or modify the element of the Software or Documentation so that the infringing portion is no longer infringing and still performs the same function without any material loss of functionality;

and shall make every reasonable effort to correct the situation with minimal effect upon the operations of Licensee.

Bannister Lake reserves the right to terminate this License Agreement on immediate notice to the Licensee, and without liability to the Licensee, in the event that the Software or the Documentation constitutes or may, in Bannister Lakes determination, constitute, an infringement of the rights of another Person that Bannister Lake, in its sole discretion, does not consider to be affordably remediable.

Notwithstanding the foregoing, Bannister Lake shall have no liability for any claim of infringement based on use of other than a current, unaltered release of the Software and Documentation available from Bannister Lake if such infringement would have been avoided by the use of a current, unaltered release of the Software or Documentation provided that such current, unaltered release performed substantially in conformance with the Specifications and was provided, at no additional cost by Bannister Lake, to those subscribing for maintenance services for the Software or Documentation.

9.    CONFIDENTIALITY. Each of Bannister Lake and Licensee shall use reasonable efforts (and, in any event, efforts that are no less than the efforts used to protect its own Confidential Information) to protect from disclosure such information that is the Confidential Information of the other. Each of Bannister Lake and Licensee shall divulge such Confidential Information only to its employees, subcontractors or agents who require access to it for the purposes of this Agreement or as otherwise provided in this Agreement. Each of Bannister Lake and Licensee (the Indemnifying Party) agree to indemnify the other (the Indemnified Party) for all Losses incurred by the Indemnified Party as a result of a failure of the Indemnifying Party to comply with its obligations under this section 9 provided that the Indemnified Party has given prompt notice of any such claim and, to the extent that a claim may lie against a third party for the unauthorized disclosure of such Confidential Information, the right to control and direct the investigation, preparation, action and settlement of each such claim and, further, provided that the Indemnified Party reasonably co-operates with the Indemnifying Party in connection with the foregoing and provides the Indemnifying Party with all information in the Indemnified Partys possession related to such claim and such further assistance as reasonably requested by the Indemnifying Party.

Without limiting any other rights or remedies available to Bannister Lake in law or in equity, Licensee acknowledges and agrees with Bannister Lake that the breach by it of any of the provisions of this Agreement would cause serious and irreparable harm to Bannister Lake which could not adequately be compensated for in damages and, in the event of a breach by Licensee of any of such provisions, Licensee hereby consents to an injunction being sought against it restraining it from any further breach of such provision.

10.    LIMITATION OF LIABILITY. The limitation of liability provisions of this Agreement reflect an informed voluntary allocation of the risks (known and unknown) that may exist in connection with the licensing of the Software or Documentation hereunder by Bannister Lake, and that such voluntary risk allocation represents a material part of the Agreement reached between Bannister Lake and Licensee. Should Bannister Lake be in breach of any obligation, Licensee agrees that Licensees remedies will be limited to those set forth in this Agreement. No action, regardless of form, arising out of this Agreement may be brought by Licensee more than twelve (12) months after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or reasonably ought to have been discovered by, Licensee.

(A)    EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6, THE SOFTWARE AND DOCUMENTATION ARE NOT WARRANTEED AND ARE PROVIDED AS IS AND Bannister Lake GIVES NO OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES AS TO UNINTERRUPTED OR ERROR FREE OPERATION, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

(B)    IN NO EVENT SHALL Bannister Lake, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS BE LIABLE FOR ANY CLAIM FOR: (i) PUNITIVE, EXEMPLARY, OR AGGRAVATED DAMAGES, (ii) DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF USE OR LACK OF AVAILABILITY OF LICENSEES  OR THIRD PARTY MATERIALS OR FACILITIES, INCLUDING COMPUTER RESOURCES AND ANY STORED DATA; (iii) INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES; (iv) CONTRIBUTION, INDEMNITY OR SET-OFF IN RESPECT OF ANY CLAIMS AGAINST LICENSEE; (v) ANY DAMAGES WHATSOEVER RELATING TO THIRD-PARTY PRODUCTS OR SERVICES, LICENSEES MATERIALS; OR (vi) ANY DAMAGES WHATSOEVER RELATING TO INTERRUPTION, DELAYS, ERRORS OR OMISSIONS.

(C)    IN ANY EVENT THE MAXIMUM TOTAL LIABILITY OF Bannister Lake, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, FOR ANY CLAIM WHATSOEVER, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, AND LICENSEES SOLE REMEDY, SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE AMOUNT OF THE PURCHASE PRICE PAID TO Bannister Lake UNDER THIS AGREEMENT OR ANY OTHER PURCHASE AGREEMENT MADE BETWEEN Bannister Lake AND LICENSEE FOR PURCHASE AND SALE OF THE PRODUCT THAT GIVES RISE TO THE LIABILITY.

11.    TERM AND TERMINATION.

(1)    The term of this Agreement shall be, (I) in the case of Software sold with Dedicated Equipment provided by Bannister Lake, the earliest of (a) the life of the Dedicated Equipment (b) unless assigned in accordance with this Agreement, the date on which the Dedicated Equipment is no longer owned by the Licensee; and (c) the termination date determined in accordance with paragraph (2) below; and (II) in the case of Software sold on a stand-alone basis, on the earlier of (a) unless assigned in accordance with this Agreement, the date on which the Licensee is no longer the owner of the Software; and (b) the termination date determined in accordance with paragraph (2) below.

(2)    Either Party shall have the right on notice to the other Party to terminate this Agreement if:

(a)    the other Party should fail to pay an amount to the other when due hereunder or under any other agreement between the Parties in connection with the Software and/or Dedicated Equipment and such breach is not cured within thirty (30) days after written notice of such is given to it by the other Party;

(b)    the other Party shall file a voluntary petition in bankruptcy or insolvency or shall petition for reorganization under any bankruptcy law (and such is not dismissed within ten (10) days);

(c)    the other Party shall consent to involuntary petition in bankruptcy or if a receiving order is given against it under the Bankruptcy and Insolvency Act or the comparable law of any other jurisdiction (and such is not dismissed within ten (10) days);

(d)    there shall be entered an order, judgment or decree by a court of competent jurisdiction, upon the application of a creditor, approving a petition seeking reorganization or appointing a receiver, trustee or liquidator of all or a substantial part of the other Partys assets and such order, judgment or decree continues in effect for a period of thirty (30) consecutive days; or

(e)    the other Party shall fail to perform any of the other material obligations set forth in this Agreement and such default: in the case of a default which is remediable continues for a period of thirty (30) days after written notice of such failure has been given by the non-defaulting Party; or (ii) in the case of a non-remediable default, immediately upon notice.

(3)    Notwithstanding this section 10, Bannister Lake may forthwith terminate this Agreement if Licensee is in breach of any of sections 2, 3 or 9 of this Agreement. Bannister Lake shall provide written notice of such termination as soon as practicable but written notice shall not be a necessary prerequisite to such termination.

(4)    Upon the termination or expiry of this Agreement:

(a)    Licensee shall immediately deliver to Bannister Lake any of Bannister Lakes Confidential Information provided hereunder (including the Software and Documentation) then in its possession or control, if any, and shall deliver a certificate of an officer of Licensee certifying the completeness of same;

(b)    Licensee shall refrain from further use of such Confidential Information; and

(c)    Licensee shall forthwith pay all sums owing to Bannister Lake hereunder.

Nothing in this section 11 shall limit either Partys rights or remedies available at law, in equity or otherwise.

12.    SURVIVAL. The provisions of sections 1, 3, 5, 7, 9, 10, 11, 12, 14 and 15 herein shall survive the expiry or termination of this Agreement.

13.    FORCE MAJEURE. Dates and times by which Bannister Lake is required to render performance under this Agreement shall be automatically postponed to the extent and for the period that Bannister Lake is prevented from meeting them by reason of any cause beyond its reasonable control provided Bannister Lake notifies Licensee of the commencement and nature of such cause and uses its reasonable efforts to render performance in a timely manner.

14.    ASSIGNMENT. Bannister Lake may assign this Agreement, or any of its rights or obligations hereunder, in whole or in part, subject to providing prior written notice to Licensee. If Licensee sells or transfers the Dedicated Equipment, except in connection with a sale or transfer to a competitor of Bannister Lake, Licensee shall have the right to assign this Agreement in connection with the Software operating on the Dedicated Equipment subject to providing actual notice of such sale or transfer to Bannister Lake, including the name and contact information of the transferee.  Otherwise, Licensee shall not assign this Agreement, or any of its rights or obligations hereunder, in whole or in part, with the prior written consent of Bannister Lake, which consent may not be unreasonably withheld.

15.    GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of Ontario and federal laws of Canada applicable therein and shall be treated, in all respects, as an Ontario contract. The Parties submit to the exclusive jurisdiction of the courts of Ontario. The Parties have required that this Agreement and all documents relating thereto be drawn-up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui sy rattachent soient rédigés en anglais.

16.    CURRENCY.  For a Licensee domiciled in Canada, all references to dollar amounts and the symbol $ are to Canadian dollars. In all other cases, all references to dollar amounts and the symbol $ are to United States dollars.

17.    AMENDMENT. This Agreement may not be modified unless agreed to in writing by both Parties. Any consent by a Party to, or waiver of a breach by the other, whether express or implied, shall not constitute a consent to or waiver of or excuse for any other different or subsequent breach unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused.

18.    SEVERABILITY. If any part of this Agreement is held to be unenforceable or invalid, it will be severed from the rest of this Agreement, which shall continue in full force and effect.

19.    NUMBER AND GENDER. Words importing the singular include the plural and vice versa; and words importing gender include all genders.

20.    ENTIRE AGREEMENT. This Agreement and any schedules or other documents referred to herein, constitutes the entire agreement between the Parties relating to the licensing of the Software and Documentation and supersedes all prior written or oral agreements, representations and other communications between the Parties, and shall enure to the benefit of and be binding upon each of the Parties and their respective successors and permitted assigns.