License Agreement
This is a Software License Agreement between CONTRAST SOFTWARE LTD, a corporation ("Provider"); and Your Company (“Client”). Provider and Client are each referred to herein as a “Party”, and are referred to together as the “Parties”.
Whereas Client desires that Provider provide the software and services set forth in this Agreement;
Whereas Provider wishes to provide the software and services for good and valuable consideration;
Whereas Provider and Client wish to confirm their agreement and are duly authorized and have the capacity to enter into and execute this Agreement.
1. DEFINITIONS
1.1. "Authorized Personnel" means the employees of Client, contractors or vendors who work for Client under a contract, individual customers with a formal services agreement directly with Client (including Sub-Clients), or the authorized personnel of a business or organization covered by a formal services agreement directly with Client.
1.2. “Client-Generated Content” means any text, image, audio or video that is the intellectual property of and created by Client or Sub-Client but may be stored on the Software servers or database for the purpose of delivery through or sent to the Software for the benefit of the end user, including any elements or materials used to create such text, image, audio or video as well as any adjustments, modifications to or development of such text, image, audio or video by Provider through the use or enhancement of the Software. Such content must have equal utility separately on a standalone basis after separating out all Software components.
1.3. “Eligible Participant” means each individual who is provided with an opportunity to access the Software by Client through the execution of a Sub-Client agreement or otherwise.
1.4. “Active Participant” means any Eligible Participant who actually accesses the Software during a specified time period.
1.5. "Licensed Information" means any information concerning the Software, or content information presented to users by the Software, which is owned by Provider and is licensed to Client together with the Software. Examples of Licensed Information includes, but is not limited to, user training material, interface format, HR tools, exercise database, nutrition database, health program content and health education resources.
1.6. “Software” means the executable processing programs and information, which comprises various modules including the aggregate websites, databases, associated desktop and mobile applications developed by Provider and currently known as “Contras HR” and “Contrast Wellness”.
1.7. “Sub-Client” means an entity which is provided access to the Software by Client in accordance with this Agreement and in respect of which the fees outlined in Exhibit A shall be payable to Provider by Client.
2. SERVICE
2.1. In accordance with the terms and conditions hereof, Provider agrees to grant to Client and Client agrees to accept a non-transferable and non-exclusive license of the Software and Licensed Information, including access to and use of the Software and Licensed Information by Authorized Personnel of Client and Sub-Clients, as well as the right to market, distribute, publicly perform and display the Software and the Licensed Information by Authorized Personnel of Client.
2.2. Hosting Services. Software will be hosted on Provider-controlled computer hardware and will be developed, upgraded, supported and maintained by Provider (“Hosting Services”).
2.3. All use of the Software is subject to the Terms and Conditions currently posted at LINK TO TERMS OF USE without limitation. Provider reserves the right, at its sole discretion, to suspend the use of any individual or group that violates any portion of these Terms of Use. Provider reserves the right to change, modify, add, or remove portions of the Terms of Use during the Term of the Agreement upon not less than thirty (30) days prior written notice to Client. Notwithstanding anything to the contrary herein, in the event of any conflict between such Terms of Use and this Agreement, this Agreement shall prevail.
2.4. Limitations. Client shall not amend, translate, decrypt the Software or engage in decompilation, disassembly, reverse engineer or any other acts attempting to detect or replicate the source code of the Software.
2.5. Provider shall provide the Services in accordance with this Agreement and all design, specification and standards included therein.
2.6. Improvements and Enhancements. Maintenance releases will be issued by Provider from time to time in Provider’s discretion, including fixes to errors, updates or enhancements. Maintenance releases are provided to Client subject to the same restrictions and limitations outlined in this Agreement.
3. FEES AND PAYMENT TERMS
3.1. Client shall pay Provider license fees, dependant on the size of the Client Company and agreement upon with Provider prior to accessing the Software.
3.2. Client shall be responsible for all sales, use and other taxes and duties imposed by any jurisdiction based on the license granted by this Agreement, any programming, support or other services provided by Provider, the license fees and other fees payable by Client, or Client's use of the Software, regardless of when such tax liability is asserted.
3.3. Provider shall deliver invoices for payment to the email provided. Payment is due upon receipt.
4. PROPRIETARY AND CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY RIGHTS.
4.1. Provider retains title to and all ownership of the Software and the accompanying Licensed Information. Client acknowledges that the Software belongs and is proprietary to Provider and shall at all times remain its property. The user license granted by this Agreement does not give Client any ownership interest in the Software, but only the right to use the Software under the specified terms.
4.2. Client retains title to and all ownership of the Client-Generated Content. Provider acknowledges that the Client-Generated Content belongs and is proprietary to Client and shall at all times remain its property. Client hereby grants to Provider a non-exclusive, non-transferable, limited license to use the Client-Generated Content during the term of this Agreement. Such license does not include the right to sublicense or otherwise grant an interest in the Client-Generated Content, or to distribute, disclose or otherwise make available the Client-Generated Content to any third party, and shall terminate upon the termination of this Agreement.
4.3. The Software may include certain custom modifications made by Provider to Client's specifications. Provider shall retain title to such custom modifications that are limited to the Software.
4.4. As used in this Agreement, “Proprietary and Confidential Information” means all information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), before or after the date of this Agreement, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided. Proprietary and Confidential Information includes, but is not limited to, the Software, Licensed Information, Client-Generated Content, and the terms of this Agreement. Receiving Party shall hold the Proprietary and Confidential Information of the Disclosing Party in strict confidence, except as necessary to perform its obligations under this Agreement. The Receiving Party shall not sell, lease, license, assign, transfer, or disclose the Proprietary and Confidential Information to any third party. The Receiving Party shall protect Proprietary and Confidential Information by using the same degree of care but no less than a reasonable degree of care as it uses to safeguard its own confidential or proprietary information of a like nature from unauthorized use, disclosure, or dissemination. The foregoing obligations shall not apply to information the Receiving Party can establish (a) is in or (through no improper action or inaction by the Receiving Party or any of its affiliates, agents or employees) enters the public domain, or (b) was rightfully in its possession or known by it without any obligation of confidentiality prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by another person without restriction, or (d) was independently developed by it without use of any Confidential Information of the Disclosing Party.
4.5. Provider hereby represents that the Software has been developed by Provider by investing a great amount of funds, contains various proprietary trade secrets and is proprietarily owned by Provider. Hence, Client agrees that, without the express written approval of Provider, it will not engage in any of the following activities:
(a) to provide all or any part of the Software to any party other than the Authorized Personnel;
(b) to make, have made, or license any third party to make, any copy of the Software;
(c) to disclose or permit the disclosure of the Software to any third party, except for the disclosure of Software to the Authorized Personnel necessary for enabling the Authorized Personnel to use the Software.
Except for the license granted to Provider under Section 4.2, this Article 4 shall survive the termination of this Agreement and will remain valid after all or part of the license granted to Client is terminated.
5. LIMITATION OF LIABILITY; INDEMNIFICATION; DISCLAIMER OF WARRANTIES
5.1. Performance. Provider warrants that it will provide the Software, Licensed Information, Hosting Services, Hardware and other services. Client shall render this warranty null and void if the failure of the Software has resulted from an accident, abuse, or misapplication caused by Client (but only with respect to such failure).
5.2. Additional Warranties by Provider. Provider further represents and warrants that:
(a) it is either the owner of the Software and all intellectual property rights therein, or it has procured all necessary rights and licenses from the owners of such rights to enter into and carry out the terms of this Agreement;(b) all services shall be performed in a professional and efficient manner, using due care, skill, and diligence and at a level equivalent to industry best standards and practices;(c) there is not any pending, or, to Provider’s knowledge, threatened, litigation that would impair Provider’s performance of its obligations hereunder; and(d) Provider shall use up-to-date, commercially available virus scanning and cleaning, and shall not, based on the results of that scanning and cleaning, deliver to Client any software containing any computer viruses, time bombs, harmful and malicious data, or other undocumented programs which inhibit software use.
5.3. Representations and Warranties of Client. Client represents and warrants that:
(i) it is either the owner of the Client-Generated Content and all intellectual property rights therein, or it has procured all necessary rights and licenses from the owners of such rights to enter into and carry out the terms of this Agreement;(ii) Client will not make any claim of ownership of the Software or institute any proceedings to challenge the validity of Provider’s ownership of the Software or any intellectual property rights therein, however, this shall not include the Client-Generated Content or any modifications, changes or adjustments to the Software that are made specifically for or at the direction of Client for the presentation or distribution of Client-Generated Content.5.4 Mutual Warranties. Each Party represents and warrants to the other that: (i) such Party has the full right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) each Party is compliant, as applicable to that Party, with all applicable laws and regulations.
5.5. The express warranties provided herein are the only warranties made by Provider in respect of the Software and will supersede all other express or implied warranties, including but not limited to any warranties of merchantability and warranties of fitness for purpose.
5.6. Indemnification by Provider. Provider shall indemnify, defend and hold harmless Client, its affiliates, its Sub-Clients and each of their officers, directors, employees, shareholders, end-users, agents and representatives, and each of their heirs, successors and assigns (the “Client Indemnitees”) from any claims, damages, suits, or proceedings brought or made by any third party against a Client Indemnitee that (i) is based on alleged breach of any representation, warranty, covenant or other obligation of Provider contained in this Agreement, specifically including but not limited to any breach of Section 4.4 or Section 4.5; or (ii) the Software, Licensed Information or any other materials or services furnished by Provider infringes or violates any intellectual property, privacy or other right of a third party, including any end user; or (iii) Provider violated any applicable federal, provincial, local and other applicable laws, rules, statutes and regulations.
5.7 Indemnification by Client. Client shall indemnify, defend and hold harmless Provider, its affiliates, each of their officers, directors, employees, shareholders, agents, and representatives, and each of their heirs, successors and assigns (the “Provider Indemnitees”) from any claims, damages, suits, or proceedings made by any third party against a Provider Indemnitee that (i) is based on alleged breach of any representation, warranty or covenant of Client contained in this Agreement or (ii) the Client-Generated Content infringes any Intellectual Property Right of a third party or violate any applicable federal, provincial, local and other applicable laws, rules, statutes and regulations.
5.8. Neither Provider nor Client shall be liable for any indirect, incidental, exemplary, special or consequential damages, including, but not limited to lost profits, data reconstruction costs, failure to realize expected savings or efficiencies, business disruption, equipment or facility downtime, or loss of goodwill of customers, suppliers or others, however arising, irrespective of any alleged act or omission on the part of Provider or Client, and whether based on or arising out of contract, tort, strict liability, contribution or any other theory of liability or cause of action. This limitation on Provider's and Client's liability shall apply even if Provider or Client has been advised or is otherwise aware of the possibility of such damages.
5.9. Other than in respect of breaches of the duty of protection and confidentiality set forth in Article 4, Provider's and Client's entire liability for damages in connection with this Agreement shall in no event exceed the amounts paid by Client to Provider for the Software.
5.10. Client acknowledges that the allocation of risk in this Agreement is consistent with software industry pattern and practice and is an integral part of the consideration for this Agreement, without which Provider would be unable to provide Software or Services at the prices specified.
5.11. Sections 5.6 – 5.9 shall survive any termination or expiration of this Agreement.
6. TERM AND TERMINATION
6.1. The term of this Agreement shall be a month to month, with payment in advance of each month. The Client can cancel at any time. Provider is not obliged to refund any payments made by Client and no prorated refunds will be granted.
6.3. In the event that Client breaches any material provision of this Agreement, then Provider may, in addition to any remedies available and if it deems to be necessary, terminate all the rights granted to Client under this Agreement (other than those that expressly survive) immediately, unless Client has remedied the breach to the reasonable satisfaction of Provider or Client has been making continuous endeavour to remedy the breach to the reasonable satisfaction of Provider. In the event Provider breaches any provision of this Agreement, Client may terminate the Agreement immediately.
6.4. In the event that this Agreement is terminated, Provider is not obliged to refund any payments made by Client hereunder and Client shall promptly make payment of all amounts payable to Provider under this Agreement to the time of such termination.
7. ASSIGNMENT
7.1. Other than as provided in Article 7.2, neither Client nor Provider shall assign or transfer this Agreement or any of the license or other rights granted or obligations imposed by this Agreement, whether by operation of law or otherwise without the other Party's prior written consent.
7.2. Notwithstanding the foregoing, no prior written consent shall be required in the event of a sale of all or substantially all of the assets of Client or Provider as a going concern to another entity, or Client's or Provider's merger or consolidation with or into another entity which shall continue Client's/Provider's business substantially unchanged, provided that the successor entity shall promptly following such transaction provide written notice to Provider/Client of such event and assume in writing all of Client's/Provider's obligations under this Agreement and be entitled to the benefits of this Agreement, subject to all of the other terms and conditions of this Agreement.
8. GOVERNING LAW
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE INTERPRETED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE PROVINCE OF SASKATCHEWAN, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. If any legal action or other proceeding is brought by either party in connection with this Agreement, the prevailing party in such proceeding shall be entitled to recover its costs, expert witness fees, and reasonable attorneys’ fees, including costs and fees on appeal, from the other party.
9. GENERAL
9.1. This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof, merges all discussions between them and supersedes and replaces any and every other prior or contemporaneous agreement, understanding or negotiation that may have existed between the Parties. No amendment to this Agreement shall be effective until the Parties mutually agree in the form of a written instrument. Headings used herein are for convenience only, are not part of this Agreement, and shall not be used in construing it.
9.2. Neither Client nor Provider shall be liable for any delay or failure to perform under this Agreement to the extent attributable to causes beyond its control, and the timetable for performance shall be adjusted accordingly. Any Party so precluded from performing shall promptly notify the other Party of the anticipated delay and the steps proposed to be undertaken to mitigate the effects of the delay
9.3. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable for any reason, the provision in question shall be amended, reformed, construed and enforced to achieve as closely as possible the economic effect of the original term and to provide the maximum protection permitted by applicable law, and all other provisions shall continue in full force and effect. Without limiting the foregoing, if at any time the duration or the scope of any one or more provisions of this Agreement shall be ruled invalid or unenforceable, the duration and/or scope set forth herein shall be deemed to be the longest period and/or greatest size permissible by law under the circumstances.
9.4. Except as either Party expressly authorizes in writing in advance, neither Party to this Agreement shall solicit, or offer work to, whether as an employee, owner, manager, director, officer, independent contractor, or otherwise, directly or indirectly, any of either Party's Employees during the period of time in which Provider provides services to Client, and during the twenty four (24) month period thereafter. For purposes of this Paragraph, "Employee" includes any individual employed by, or under services contract with, either Party. The foregoing shall not be deemed to prohibit general, non-targeted advertisements for employment or the hiring of any Employee who initiates such discussions with a Party.
9.5. The failure by either Party to assert or exercise any right or remedy under this Agreement shall not otherwise act to waive the future assertion or exercise of the same or any other right or remedy.
This is a Software License Agreement between CONTRAST SOFTWARE LTD, a corporation ("Provider"); and Your Company (“Client”). Provider and Client are each referred to herein as a “Party”, and are referred to together as the “Parties”.
Whereas Client desires that Provider provide the software and services set forth in this Agreement;
Whereas Provider wishes to provide the software and services for good and valuable consideration;
Whereas Provider and Client wish to confirm their agreement and are duly authorized and have the capacity to enter into and execute this Agreement.
1. DEFINITIONS
1.1. "Authorized Personnel" means the employees of Client, contractors or vendors who work for Client under a contract, individual customers with a formal services agreement directly with Client (including Sub-Clients), or the authorized personnel of a business or organization covered by a formal services agreement directly with Client.
1.2. “Client-Generated Content” means any text, image, audio or video that is the intellectual property of and created by Client or Sub-Client but may be stored on the Software servers or database for the purpose of delivery through or sent to the Software for the benefit of the end user, including any elements or materials used to create such text, image, audio or video as well as any adjustments, modifications to or development of such text, image, audio or video by Provider through the use or enhancement of the Software. Such content must have equal utility separately on a standalone basis after separating out all Software components.
1.3. “Eligible Participant” means each individual who is provided with an opportunity to access the Software by Client through the execution of a Sub-Client agreement or otherwise.
1.4. “Active Participant” means any Eligible Participant who actually accesses the Software during a specified time period.
1.5. "Licensed Information" means any information concerning the Software, or content information presented to users by the Software, which is owned by Provider and is licensed to Client together with the Software. Examples of Licensed Information includes, but is not limited to, user training material, interface format, HR tools, exercise database, nutrition database, health program content and health education resources.
1.6. “Software” means the executable processing programs and information, which comprises various modules including the aggregate websites, databases, associated desktop and mobile applications developed by Provider and currently known as “Contras HR” and “Contrast Wellness”.
1.7. “Sub-Client” means an entity which is provided access to the Software by Client in accordance with this Agreement and in respect of which the fees outlined in Exhibit A shall be payable to Provider by Client.
2. SERVICE
2.1. In accordance with the terms and conditions hereof, Provider agrees to grant to Client and Client agrees to accept a non-transferable and non-exclusive license of the Software and Licensed Information, including access to and use of the Software and Licensed Information by Authorized Personnel of Client and Sub-Clients, as well as the right to market, distribute, publicly perform and display the Software and the Licensed Information by Authorized Personnel of Client.
2.2. Hosting Services. Software will be hosted on Provider-controlled computer hardware and will be developed, upgraded, supported and maintained by Provider (“Hosting Services”).
2.3. All use of the Software is subject to the Terms and Conditions currently posted at LINK TO TERMS OF USE without limitation. Provider reserves the right, at its sole discretion, to suspend the use of any individual or group that violates any portion of these Terms of Use. Provider reserves the right to change, modify, add, or remove portions of the Terms of Use during the Term of the Agreement upon not less than thirty (30) days prior written notice to Client. Notwithstanding anything to the contrary herein, in the event of any conflict between such Terms of Use and this Agreement, this Agreement shall prevail.
2.4. Limitations. Client shall not amend, translate, decrypt the Software or engage in decompilation, disassembly, reverse engineer or any other acts attempting to detect or replicate the source code of the Software.
2.5. Provider shall provide the Services in accordance with this Agreement and all design, specification and standards included therein.
2.6. Improvements and Enhancements. Maintenance releases will be issued by Provider from time to time in Provider’s discretion, including fixes to errors, updates or enhancements. Maintenance releases are provided to Client subject to the same restrictions and limitations outlined in this Agreement.
3. FEES AND PAYMENT TERMS
3.1. Client shall pay Provider license fees, dependant on the size of the Client Company and agreement upon with Provider prior to accessing the Software.
3.2. Client shall be responsible for all sales, use and other taxes and duties imposed by any jurisdiction based on the license granted by this Agreement, any programming, support or other services provided by Provider, the license fees and other fees payable by Client, or Client's use of the Software, regardless of when such tax liability is asserted.
3.3. Provider shall deliver invoices for payment to the email provided. Payment is due upon receipt.
4. PROPRIETARY AND CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY RIGHTS.
4.1. Provider retains title to and all ownership of the Software and the accompanying Licensed Information. Client acknowledges that the Software belongs and is proprietary to Provider and shall at all times remain its property. The user license granted by this Agreement does not give Client any ownership interest in the Software, but only the right to use the Software under the specified terms.
4.2. Client retains title to and all ownership of the Client-Generated Content. Provider acknowledges that the Client-Generated Content belongs and is proprietary to Client and shall at all times remain its property. Client hereby grants to Provider a non-exclusive, non-transferable, limited license to use the Client-Generated Content during the term of this Agreement. Such license does not include the right to sublicense or otherwise grant an interest in the Client-Generated Content, or to distribute, disclose or otherwise make available the Client-Generated Content to any third party, and shall terminate upon the termination of this Agreement.
4.3. The Software may include certain custom modifications made by Provider to Client's specifications. Provider shall retain title to such custom modifications that are limited to the Software.
4.4. As used in this Agreement, “Proprietary and Confidential Information” means all information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), before or after the date of this Agreement, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided. Proprietary and Confidential Information includes, but is not limited to, the Software, Licensed Information, Client-Generated Content, and the terms of this Agreement. Receiving Party shall hold the Proprietary and Confidential Information of the Disclosing Party in strict confidence, except as necessary to perform its obligations under this Agreement. The Receiving Party shall not sell, lease, license, assign, transfer, or disclose the Proprietary and Confidential Information to any third party. The Receiving Party shall protect Proprietary and Confidential Information by using the same degree of care but no less than a reasonable degree of care as it uses to safeguard its own confidential or proprietary information of a like nature from unauthorized use, disclosure, or dissemination. The foregoing obligations shall not apply to information the Receiving Party can establish (a) is in or (through no improper action or inaction by the Receiving Party or any of its affiliates, agents or employees) enters the public domain, or (b) was rightfully in its possession or known by it without any obligation of confidentiality prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by another person without restriction, or (d) was independently developed by it without use of any Confidential Information of the Disclosing Party.
4.5. Provider hereby represents that the Software has been developed by Provider by investing a great amount of funds, contains various proprietary trade secrets and is proprietarily owned by Provider. Hence, Client agrees that, without the express written approval of Provider, it will not engage in any of the following activities:
(a) to provide all or any part of the Software to any party other than the Authorized Personnel;
(b) to make, have made, or license any third party to make, any copy of the Software;
(c) to disclose or permit the disclosure of the Software to any third party, except for the disclosure of Software to the Authorized Personnel necessary for enabling the Authorized Personnel to use the Software.
Except for the license granted to Provider under Section 4.2, this Article 4 shall survive the termination of this Agreement and will remain valid after all or part of the license granted to Client is terminated.
5. LIMITATION OF LIABILITY; INDEMNIFICATION; DISCLAIMER OF WARRANTIES
5.1. Performance. Provider warrants that it will provide the Software, Licensed Information, Hosting Services, Hardware and other services. Client shall render this warranty null and void if the failure of the Software has resulted from an accident, abuse, or misapplication caused by Client (but only with respect to such failure).
5.2. Additional Warranties by Provider. Provider further represents and warrants that:
(a) it is either the owner of the Software and all intellectual property rights therein, or it has procured all necessary rights and licenses from the owners of such rights to enter into and carry out the terms of this Agreement;(b) all services shall be performed in a professional and efficient manner, using due care, skill, and diligence and at a level equivalent to industry best standards and practices;(c) there is not any pending, or, to Provider’s knowledge, threatened, litigation that would impair Provider’s performance of its obligations hereunder; and(d) Provider shall use up-to-date, commercially available virus scanning and cleaning, and shall not, based on the results of that scanning and cleaning, deliver to Client any software containing any computer viruses, time bombs, harmful and malicious data, or other undocumented programs which inhibit software use.
5.3. Representations and Warranties of Client. Client represents and warrants that:
(i) it is either the owner of the Client-Generated Content and all intellectual property rights therein, or it has procured all necessary rights and licenses from the owners of such rights to enter into and carry out the terms of this Agreement;(ii) Client will not make any claim of ownership of the Software or institute any proceedings to challenge the validity of Provider’s ownership of the Software or any intellectual property rights therein, however, this shall not include the Client-Generated Content or any modifications, changes or adjustments to the Software that are made specifically for or at the direction of Client for the presentation or distribution of Client-Generated Content.5.4 Mutual Warranties. Each Party represents and warrants to the other that: (i) such Party has the full right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) each Party is compliant, as applicable to that Party, with all applicable laws and regulations.
5.5. The express warranties provided herein are the only warranties made by Provider in respect of the Software and will supersede all other express or implied warranties, including but not limited to any warranties of merchantability and warranties of fitness for purpose.
5.6. Indemnification by Provider. Provider shall indemnify, defend and hold harmless Client, its affiliates, its Sub-Clients and each of their officers, directors, employees, shareholders, end-users, agents and representatives, and each of their heirs, successors and assigns (the “Client Indemnitees”) from any claims, damages, suits, or proceedings brought or made by any third party against a Client Indemnitee that (i) is based on alleged breach of any representation, warranty, covenant or other obligation of Provider contained in this Agreement, specifically including but not limited to any breach of Section 4.4 or Section 4.5; or (ii) the Software, Licensed Information or any other materials or services furnished by Provider infringes or violates any intellectual property, privacy or other right of a third party, including any end user; or (iii) Provider violated any applicable federal, provincial, local and other applicable laws, rules, statutes and regulations.
5.7 Indemnification by Client. Client shall indemnify, defend and hold harmless Provider, its affiliates, each of their officers, directors, employees, shareholders, agents, and representatives, and each of their heirs, successors and assigns (the “Provider Indemnitees”) from any claims, damages, suits, or proceedings made by any third party against a Provider Indemnitee that (i) is based on alleged breach of any representation, warranty or covenant of Client contained in this Agreement or (ii) the Client-Generated Content infringes any Intellectual Property Right of a third party or violate any applicable federal, provincial, local and other applicable laws, rules, statutes and regulations.
5.8. Neither Provider nor Client shall be liable for any indirect, incidental, exemplary, special or consequential damages, including, but not limited to lost profits, data reconstruction costs, failure to realize expected savings or efficiencies, business disruption, equipment or facility downtime, or loss of goodwill of customers, suppliers or others, however arising, irrespective of any alleged act or omission on the part of Provider or Client, and whether based on or arising out of contract, tort, strict liability, contribution or any other theory of liability or cause of action. This limitation on Provider's and Client's liability shall apply even if Provider or Client has been advised or is otherwise aware of the possibility of such damages.
5.9. Other than in respect of breaches of the duty of protection and confidentiality set forth in Article 4, Provider's and Client's entire liability for damages in connection with this Agreement shall in no event exceed the amounts paid by Client to Provider for the Software.
5.10. Client acknowledges that the allocation of risk in this Agreement is consistent with software industry pattern and practice and is an integral part of the consideration for this Agreement, without which Provider would be unable to provide Software or Services at the prices specified.
5.11. Sections 5.6 – 5.9 shall survive any termination or expiration of this Agreement.
6. TERM AND TERMINATION
6.1. The term of this Agreement shall be a month to month, with payment in advance of each month. The Client can cancel at any time. Provider is not obliged to refund any payments made by Client and no prorated refunds will be granted.
6.3. In the event that Client breaches any material provision of this Agreement, then Provider may, in addition to any remedies available and if it deems to be necessary, terminate all the rights granted to Client under this Agreement (other than those that expressly survive) immediately, unless Client has remedied the breach to the reasonable satisfaction of Provider or Client has been making continuous endeavour to remedy the breach to the reasonable satisfaction of Provider. In the event Provider breaches any provision of this Agreement, Client may terminate the Agreement immediately.
6.4. In the event that this Agreement is terminated, Provider is not obliged to refund any payments made by Client hereunder and Client shall promptly make payment of all amounts payable to Provider under this Agreement to the time of such termination.
7. ASSIGNMENT
7.1. Other than as provided in Article 7.2, neither Client nor Provider shall assign or transfer this Agreement or any of the license or other rights granted or obligations imposed by this Agreement, whether by operation of law or otherwise without the other Party's prior written consent.
7.2. Notwithstanding the foregoing, no prior written consent shall be required in the event of a sale of all or substantially all of the assets of Client or Provider as a going concern to another entity, or Client's or Provider's merger or consolidation with or into another entity which shall continue Client's/Provider's business substantially unchanged, provided that the successor entity shall promptly following such transaction provide written notice to Provider/Client of such event and assume in writing all of Client's/Provider's obligations under this Agreement and be entitled to the benefits of this Agreement, subject to all of the other terms and conditions of this Agreement.
8. GOVERNING LAW
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE INTERPRETED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE PROVINCE OF SASKATCHEWAN, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF. If any legal action or other proceeding is brought by either party in connection with this Agreement, the prevailing party in such proceeding shall be entitled to recover its costs, expert witness fees, and reasonable attorneys’ fees, including costs and fees on appeal, from the other party.
9. GENERAL
9.1. This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof, merges all discussions between them and supersedes and replaces any and every other prior or contemporaneous agreement, understanding or negotiation that may have existed between the Parties. No amendment to this Agreement shall be effective until the Parties mutually agree in the form of a written instrument. Headings used herein are for convenience only, are not part of this Agreement, and shall not be used in construing it.
9.2. Neither Client nor Provider shall be liable for any delay or failure to perform under this Agreement to the extent attributable to causes beyond its control, and the timetable for performance shall be adjusted accordingly. Any Party so precluded from performing shall promptly notify the other Party of the anticipated delay and the steps proposed to be undertaken to mitigate the effects of the delay
9.3. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable for any reason, the provision in question shall be amended, reformed, construed and enforced to achieve as closely as possible the economic effect of the original term and to provide the maximum protection permitted by applicable law, and all other provisions shall continue in full force and effect. Without limiting the foregoing, if at any time the duration or the scope of any one or more provisions of this Agreement shall be ruled invalid or unenforceable, the duration and/or scope set forth herein shall be deemed to be the longest period and/or greatest size permissible by law under the circumstances.
9.4. Except as either Party expressly authorizes in writing in advance, neither Party to this Agreement shall solicit, or offer work to, whether as an employee, owner, manager, director, officer, independent contractor, or otherwise, directly or indirectly, any of either Party's Employees during the period of time in which Provider provides services to Client, and during the twenty four (24) month period thereafter. For purposes of this Paragraph, "Employee" includes any individual employed by, or under services contract with, either Party. The foregoing shall not be deemed to prohibit general, non-targeted advertisements for employment or the hiring of any Employee who initiates such discussions with a Party.
9.5. The failure by either Party to assert or exercise any right or remedy under this Agreement shall not otherwise act to waive the future assertion or exercise of the same or any other right or remedy.
