CAREFULLY READ THE FOLLOWING LICENCE AGREEMENT! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON OR LEAVE THE WEBSITE.
Please contact us at [email protected] for any queries.
“You”, “Your” or “User(s)” means the person or company who is being licensed to use the Licensed Software in association with this Agreement. “We”, “Our” and “Us” means Kambeo.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH that, in consideration of the mutual covenants contained herein, the Parties hereto agree as follows:
1.1. Definitions. Capitalized terms in this Agreement have the following meanings:
1.2 Other Capitalized Terms.
Other capitalized terms have the meanings defined in this Agreement.
2. Software Licence, Rights & Restrictions
2.1 Software Licence and Rights.
In consideration of the mutual covenants, and subject to the provisions contained in this Agreement, We hereby grant to You a limited, revocable, non-exclusive, non-transferrable end user sublicence to use the Licensed Software solely in conformance with the Permitted Use and in conjunction with all applicable policies of KAMBEO enacted from time to time (the “License”). This grant of License is not a sale of the Licensed Software or of a copy of the Licensed Software. Any use or attempted use of the Licensed Software other than as expressly permitted herein is a material breach of this Agreement.
2.2 Restrictions. Without limiting the generality of the foregoing, You will use the Licensed Software only for purposes set forth herein, and, further, You expressly agree that You DO NOT have rights to:
2.3 Enforcement of Restrictions. We will have the right to inspect and enforce the restrictions and covenants contained in this Agreement at Your sole expense upon Our provision of written notice to You, and You hereby agree to promptly notify Us of any known violations of such restrictions.
2.4 Our Obligations. Upon Your acceptance of this Agreement, We will:
2.5 Consent to Use of Data.
You agree that We may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Licensed Software. You acknowledge and agree that We may use this information, as long as it is in a form that does not personally identify You, to improve Our products and to provide services and technologies to You.
3. Intellectual Property, Copyright and Marks
3.1 Intellectual Property.
You acknowledge and agree that the Licensed Software and the applicable processes, formulas, algorithms, system architecture, database schemas, logs, drawings, emblems, symbols, pictograms, slogans, signboards, plates, forms, software and production methodology used in producing the Licensed Software, any other work protected by the Copyright Act, RSC 1985, c. C-42, trademarks (as defined in the Trade-marks Act, RSC 1985, c. T-13), registered or unregistered, that We use for the Licensed Software, inventions, procedures, methods and techniques, patented or unpatented, as well as trade secrets and the know-how We use in designing, producing and marketing the Licensed Software, including all confidential information, are the proprietary property of KAMBEO, its affiliates and its licensors, and the Licensed Software is protected by copyright (as more particularly set out in Section 3.2 below), trademark (as more particularly set out in Section 3.3 below), trade secrets and other intellectual property laws (the “Intellectual Property”). You agree not to lay claim to, contest, make any registration, or prejudice in any manner whatsoever, Our Intellectual Property related to the Licensed Software.
The Licensed Software, including any documentation, media, packaging and illustrations, is copyrighted and constitutes valuable property of KAMBEO and its licensors. You agree that all physical manifestations of the Licensed Software will display the copyright notice set out below in a conspicuous manner. The Licensed Software is protected under Canadian copyright laws and international treaty provisions. You will have a right to print a copy of the materials for Your personal use, provided copyright notices and acknowledgement of trade-marks are included, pursuant to the covenants herein. You will include the following notice on any printed version of the Licensed Software, in any form whatsoever:
“Copyright © 2505381 ONTARIO INC. and Gigit Marketplace Inc. . All Rights Reserved”
Certain logos, product names and trade-marks owned by Us or our licensors may be contained within the printed materials and electronic manifestations of the Licensed Software. You will have no right to use such marks in the end-user applications except as set out in the User Agreement.
3.3 No Other Rights.
Rights not expressly granted to You are reserved to Us. You have no implied rights in, or to use of, the Licensed Software; rather, all rights applicable to You are expressly set forth herein. Except for the limited license granted to You herein, nothing in this Agreement confers any right, title or interest therein and no other right or license is granted to You hereunder, whether by estoppel or otherwise.
You acknowledge that the Licensed Software, including any associated written materials and other documentation provided under this Agreement, including all Intellectual Property inherent therein or appurtenant thereto are, and at all times shall remain, the sole and exclusive property of KAMBEO and belongs exclusively to Us and our licensors. Unencumbered title to the Licensed Software will, at all times, remain with Us. You agree to protect the Licensed Software from unauthorized use, reproduction, distribution or publication in electronic or physical form. To the extent that You acquire any rights to the Licensed Software or any portion thereof in a manner not set forth herein, You agree to execute, and to cause Your representative to execute, any assignment agreements or other instruments assigning, transferring, and conveying to Us or our licensors (as applicable) all right, title and interest in and to the Licensed Software, including copyrights and other intellectual property.
5. Warranty and Indemnity
5.1 DISCLAIMER OF WARRANTIES.
THE LICENSED SOFTWARE PROVIDED UNDER THIS AGREEMENT IS FURNISHED BY KAMBEO AND ACCEPTED BY YOU “AS IS” AND WITHOUT ANY WARRANTY. KAMBEO AND ITS AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE OR ANY SERVICES HEREUNDER, AND KAMBEO, ITS AFFILIATES AND LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE LICENSED SOFTWARE, THE SERVICES, OR RESULTS DERIVED THEREFROM, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES REGARDING ACCURACY, QUALITY, CORRECTNESS, COMPLETENESS, COMPREHENSIVENESS, SUITABILITY, SYSTEM AVAILABILITY, COMPATIBILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE). NO KAMBEO EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT. IN ADDITION, YOU ACKNOWLEDGE THAT THE LICENSED SOFTWARE AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, LATENCY ISSUES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND THAT KAMBEO, ITS AFFILIATES AND LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
We will and hereby do agree to indemnify and hold You harmless in respect of any final judgment of liability arising out of, connected with, or resulting in any way from a third party claim that the Licensed Software as provided to You hereunder (but not to the extend of any modifications thereto by You) infringes any Canadian copyright, patent or other intellectual property right of any third party, unless such claims arise from and to the extent of (a) the combination or use of the Licensed Software, the information contained therein, or results derived therefrom with any software, data, information or materials not furnished by Us (b) the use of the Licensed Software, the information contained therein, or results derived therefrom other than as permitted hereunder; or (c) any modification to the Licensed Software, the information contained therein, or results derived therefrom by any individual or entity other than Us. Regarding all claims that System and Application Software infringes a third party’s intellectual property rights, Our sole obligation hereunder shall be to use commercially reasonable efforts to procure for any indemnified party hereunder the benefits of the indemnity, if any, that We may have received from the provider of such material. If the Licensed Software becomes or, in Our opinion, may become, the subject of any claim of infringement, then We may, in our sole discretion and expense, (a) procure the right for You to continue using the Licensed Software; (b) modify the Licensed Software to render it non-infringing; or (c) replace the Licensed Software with reasonably equivalent non-infringing products. If none of the foregoing is commercially practicable, either party may terminate this Agreement. THIS SECTION SETS FORTH OUR ENTIRE LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT CLAIMS RELATING TO THE LICENSED SOFTWARE.
5.3 Other Third Party Claims.
Except with respect to third party claims for which You are entitled to indemnification pursuant to Section 5.2 above, You shall defend, indemnify and hold harmless KAMBEO and its affiliates and licensors and their respective officers, directors, employees, contractors and agents, from and against all claims, damages, liabilities and expenses (including reasonable attorney’s fees and court costs) arising out of, connected with, or resulting in any way from third party claims against KAMBEO based on Your use of the Licensed Software. If You are a governmental entity subject to statutory limitations that apply to this Article 5, You shall provide the indemnifications to the full extent permitted by the statutory limitations.
6. Limitation of Liability and Remedies
6.1 LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL KAMBEO, ITS AFFILIATES, LICENSORS, OR ANY OF ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY WHOSE CLAIM IS RELATED TO KAMBEO, THE LICENSED SOFTWARE, THIS AGREEMENT, THE SERVICES OR OTHERWISE, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, (a) FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST OR ANTICIPATED PROFITS, LOST BUSINESS, SAVINGS, INTERRUPTION TO BUSINESS, OR LOST OPPORTUNITY, LOSS OF BUSINESS INFORMATION, THE COST OF RECOVERING SUCH LOST INFORMATION, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE THE LICENSED SOFTWARE OR SERVICES), OR ANY OTHER SIMILAR DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF KAMBEO AND YOU, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER THE APPLICABLE ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (b) FOR ANY CLAIMS, DAMAGES OR COSTS OF ANY NATURE IN EXCESS OF THE LESSER OF (i) LICENSE FEES PAID BY LICENSEE TO US, AND (ii) ONE HUNDRED ($100.00) DOLLARS. THIS LIMITATION OF LIABILITY AND THE DISCLAIMERS SET FORTH IN SECTION 5 ARE INDEPENDENT OF ANY REMEDIES SET FORTH HEREIN AND WILL SURVIVE AND APPLY EVEN IF SUCH REMEDIES ARE FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE. YOU FURTHER AGREE THAT YOU MAY NOT INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. THIS LIMITATION OF LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN KAMBEO AND YOU AND WAS A CONTROLLING FACTOR IN MAKING THE LICENSED SOFTWARE AVAILABLE TO YOU TO USE IN ACCORDANCE WITH THE TERMS AND CONDITIONS SET OUT HEREIN.
6.2 Dispute Resolution.
You acknowledge that We possess valuable confidential and proprietary information, including trade-marks and business practices, which would be damaging to Us if revealed in open court. You further acknowledge and agree that it is preferable to resolve all disputes between Us and You confidentially, individually and in an expeditious and inexpensive manner. We and You accordingly acknowledge and agree that private dispute resolution is preferable to court actions. Before commencing any arbitration in the manner set out in Section 6.3 below, We and You shall first attempt to resolve any dispute or differences between the both of us by way of good faith negotiation. The good faith negotiation shall commence by each of Us and You communicating our position in writing regarding the complaint, claim, dispute or controversy to the other party, and how the both of us should resolve the dispute. We and You shall then make good faith efforts to negotiate a resolution of the claim, dispute or controversy. Neither We nor You shall commence any arbitral proceedings unless and until the good faith negotiation fails.
In the event that You and We are unable to resolve any dispute in accordance with good faith negotiations set out in Section 6.2, any dispute concerning the subject matter of this Agreement (whether in contract, tort, or otherwise, and whether pre-existing, present, or future, and including statutory law, common law, intentional tort and equitable claims capable in law of being submitted to binding arbitration) or breach, termination or validity thereof (a “Dispute”) against Us, Our agents, employees, officers, directors, successors, assigns or affiliates will be settled exclusively in accordance with the procedures set forth in this Section 6.3. The party seeking resolution of a Dispute will first give notice in writing of the Dispute to the other party, setting forth the nature of the Dispute and a concise statement of the issues to be resolved. If the Dispute has not been resolved through good faith efforts and negotiations of senior officers or representatives of the parties within thirty (30) days of receipt by the relevant party of the notice of Dispute, such notice will be deemed to be a notice of arbitration and the parties agree to submit the Dispute to a single arbitrator mutually agreeable to both parties, with the seat of such arbitration to be in Hamilton, Ontario. In the event that the parties cannot agree on a sole arbitrator, the arbitrator will be appointed by a judge of the Ontario Superior Court of Justice on application by either party to the Dispute. All arbitration, proceedings and hearings will be conducted in the English language in accordance with the Arbitration Act, 1991, SO 1991, c 17. All decisions and awards rendered by the arbitrator will be final and binding upon the parties for all questions submitted to such arbitrator and the costs associated with such submission shall be shared equally by the parties involved in the Dispute unless the arbitrator decides otherwise. The parties waive all rights of appeal therefore to any court or tribunal, and agree that the only recourse by any party to any court will be for the purpose of enforcing an arbitration award.
7. Successors and Assigns
7.1 Successors and Assigns.
You may not assign Your rights and duties under this Agreement to any party at any time. This Agreement will enure to the benefit of and will be binding on Us and Our respective successors and permitted assigns. In the event of corporate merger, amalgamation, divestiture or asset sale, We will have the right to transfer and assign Our rights and obligations hereunder to any third party (the “Assignee”), without written notice to You, provided that We cause the Assignee to agree in writing to abide by all the terms contained in this Agreement.
Other than our obligation under Section 2.4(b), We shall have no other obligations to provide updates or support services to You. Obligations or expectations with regard to product upgrades, enhancements, support or remedies for errors, defects or deficiencies will be limited to those expressly set forth in a separate agreement between Us and You. In the absence of such an agreement between Us and You, We will use reasonable efforts to provide ongoing support and remedies to identified errors and defects, on a time and material basis, at Our then current commercial rates.
You acknowledge that the existence of this Agreement, the terms and conditions hereof, the transactions contemplated hereby and other information, including, without limitation, customer, technical and financial information that they have received or will receive in connection with this Agreement, is considered private and confidential (the “Confidential Information”). You will use reasonable diligence and in no event use less than the degree of care, which We use in respect to our own confidential and proprietary information of like nature, to prevent the unauthorized disclosure, reproduction or distribution of such Confidential Information to any other individual, corporation or entity.
You expressly agree to use all the information, whatever its nature, regarding the Licensed Software and Services, solely in accordance with the Agreement, and to respect the confidential nature of said information for the life of this Agreement, and at all times following the termination or expiration of the same for whatever reason. You further agree not to divulge to a third-party, for whatever reason, except to the extent required by law, any confidential information pertaining to the Licensed Software or Services.
Moreover, You acknowledge that if You breach this confidentiality obligation, it would lead to serious prejudicial and irreparable consequences for KAMBEO, and in such event, KAMBEO shall be entitled to take any necessary steps to defend its rights, including, applying for injunctive or other equitable relief, or suing for damages.
Such Confidential Information will exclude:
10. Term and Termination
The term of this Agreement will commence on the date of Your acceptance of these terms and shall continue until terminated by You or Us by written notice.
In addition to a termination effected by You or Us in accordance with Section 10.1, Your rights under this Agreement will terminate automatically without notice from Us if You fail to comply with any term(s) of this Agreement. Upon termination of this Agreement, You shall cease all use of the Licensed Software and destroy all copies, full or partial, of the Licensed Software. Following the termination of this Agreement, We shall have no liability to You whatsoever in connection with such termination, however, the termination of this Agreement, for any reason, shall not prejudice or affect Our accrued rights and claims hereunder, which shall survive termination.
The Article, Section and paragraph headings used herein are for convenience only and are not a part of this Agreement and will not be used in construing it.
11.2 Entire Agreement.
This Agreement constitutes the entire agreement of the Parties, and no amendment to the terms of this Agreement will be effective unless in writing and signed by both parties hereto.
11.3 Equitable Relief.
You agree that any breach of this Agreement by You would cause irreparable damage, and that, in event of such breach, in addition to any and all remedies at law, We will have the right to an injunction, specific performance or other equitable relief to prevent the continuous violations of the terms of this Agreement.
11.4 Force Majeure.
Notwithstanding anything herein to the contrary, We shall not be liable for any delay or failure in performance caused by circumstances beyond Our reasonable control.
11.5 Relationship of the Parties.
This Agreement does not constitute a partnership or joint venture, and nothing herein contained is intended to constitute, nor will it be construed to constitute, such a partnership or joint venture. Except as expressly provided in this Agreement, neither We nor You will have any power or authority to act in the name or on behalf of the other party, or to bind the other party to any legal agreement.
The provisions of this Agreement are to be considered separately, and if any provision hereof should be found by any court or competent jurisdiction to be invalid or unenforceable, this Agreement will be deemed to have effect as if such provision were severed from this Agreement.
11.7 Number and Gender.
Where the context permits, the singular includes the plural, and the masculine includes the feminine and neuter genders and vice versa.
All notices and communications to KAMBEO required or permitted under this Agreement will be in writing and will be sent by electronic mail, with confirmation of receipt, at the address provided below:
A notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
FOR ALL CLAIMS OR LEGAL PROCEEDINGS FOR ANY REASON WHATSOEVER IN RELATION TO THIS AGREEMENT, THE PARTIES IRREVOCABLY ATTORN TO THE COURTS IN THE JUDICIAL DISTRICT OF HAMILTON, PROVINCE OF ONTARIO, CANADA, AS THE APPROPRIATE SITE FOR RESOLVING SUCH CLAIMS OR LEGAL PROCEEDINGS, TO THE EXCLUSION OF ALL OTHER JURISDICTIONS AND JUDICIAL DISTRICTS THAT COULD ASSUME JURISDICTION OVER SUCH LITIGATION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES WAIVE AND AGREE NOT TO ASSERT, AS A DEFENCE OR OTHERWISE (i) ANY CLAIM THAT IS NOT SUBJECT TO THE JURISDICTION (IN PERSONAM OR OTHERWISE); (ii) ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY SUCH COURT, OR (iii) ANY CLAIM THAT ANY ACTION, SUIT OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
11.10 Governing Law.
This Agreement shall be deemed to have been made in the Province of Ontario and shall be construed and interpreted according to the laws of the Province of Ontario and the Laws of Canada applicable therein.
11.11 Revisions to this Agreement.
We may at any time revise the terms of this Agreement by updating these terms and by providing notice to you of that change.
11.12 Preamble and Schedules.
The Preamble hereto forms an integral part of this Agreement and is incorporated into this Agreement by reference.