End User License Agreement
NOTICE TO USERS:
This is the sale of a license to use software, not a sale of software. This product is provided under this Agreement (as defined below) which is a legal agreement between you and the Licensor (as defined below) that defines what you (either an individual or a single entity) may and may not do with the Software, and contains limitations, warranties and remedies.
Please read this Agreement carefully before installation or use of the Software. Your installation or use of the Software indicates your acknowledgement that you have read and understood this Agreement and agree to all of its terms. If you do not agree or accept all terms and conditions of this Agreement, promptly delete any copies of Software on your system(s) and return any Software to the Licensor.
Licensor reserves the right to modify the terms of this Agreement with future releases of new or existing products, at which point you will be asked to agree to the modified agreement. By installing or using the Software, you acknowledge that you are authorized to accept the terms and conditions of this Agreement for yourself and any entity on behalf of which you are licensing the Software.
“The Agreement” refers to this license agreement.
“Confidential Information” means all data and information, which Datamine, its vendors, licensors, or subcontractors consider confidential, proprietary or licensed, whether heretofore or hereafter created or acquired, whether disclosed directly or indirectly by Datamine in writing, orally or otherwise, whether or not covered by intellectual property rights or explicitly designated as confidential or proprietary. Confidential Information includes, without limitation, technical information, trade secrets, data, concepts, the Software, computer software, computer software documentation, manuals, reports, designs, product specifications, drawings, diagrams, processes, know-how, strategies, prices, analyses, compilations, guides, inventions and ideas, and any reproductions made in whole or in part thereof
“Customer” refers to the contracting party indicated on the Commercial Agreement.
“Geography” refers to the country in which the software was purchased.
“Licensor” refers to Datamine Corporate Limited, and/or any other entity part of the Datamine group (collectively “Datamine”)
“Software” means individually and collectively any and all Datamine proprietary software, courseware and programs which are included in a Datamine product or licensed as a stand-alone product whether printed, provided on disk, provided online under the Commercial Agreement. Software includes third party suppliers’ software embedded in the Software, as well as all associated media, printed materials, data, information, specifications, publications or documentation related thereto provided by Datamine or its licensors (the “Documentation”), and whether or not any portion is protected by intellectual property rights.
Subject to the payment of the applicable license fees and your compliance with the terms and conditions of this Agreement, the Licensor hereby grants to you a non-exclusive, non-transferable, non-sublicensable right to use the number of copies of the Software licensed which license is revocable upon termination of this Agreement in accordance with Section 2 below.
1. Use of the Software
You may install the Software in a single location on a hard disk or other storage device; or you may install and use the Software on a file server for execution over your networks; and you may make backup copies of the Software. You may make only as many copies of the Software in machine-readable form as are required for backup purposes, provided that the Licensor’s copyright notice and proprietary legend are included.
You may transfer the Software from one computer to another over your networks, or relocate the Software on your sites, but you may not use more copies than are licensed over the networks or make more copies than are licensed for use on your networks or sites (exclusive of backup copies as provided for above). Your ability to transfer the Software is limited to the Geography in which your software was purchased unless prior written consent is granted by the Licensor.
You may use the Software in object code form only for your own business operations at your sites or networks. Software may not be copied, photocopied, reproduced, translated, modified, or reduced to any electronic medium or machine-readable form except, in whole or in part, as permitted hereunder or expressly authorized by the Licensor.
2. Term and Termination
This Agreement is effective for an unlimited duration unless and until earlier terminated as set forth herein. This Agreement will terminate automatically if you fail to comply with any of the terms, conditions, limitations or other requirements described herein or in your Commercial Agreement. Upon any termination or expiration of this Agreement, you shall destroy all copies of the Software. In the event that this Agreement is terminated for any reason the price paid for the software is not refundable.
In the event that maintenance has been cancelled, expires or otherwise terminates for any reason, the License provided for herein shall continue in perpetuity. However, the right to receive Support and Maintenance for the software shall cease. In the event Customer wishes to restart maintenance services, then the Customer must pay any past due Maintenance fees, and enter into a new term with Datamine. Additional charges may apply for all hardware or third-party products as applicable. Datamine reserves the right to charge a re-installation fee (at the then current rate) to upgrade the system to the current version of the Software.
Should Customer wish to cease the License of the Software, Customer shall provide Datamine ninety (90) days written notice in advance of the renewal term of that fact, remove all Software from Customer systems, and return all original and copies of the Software media and documentation to Datamine. Software Maintenance will cease at the end of that ninety (90) day notice period.
Datamine may terminate this License and terminate or suspend Licensee’s use of the Software, immediately upon written notice to the Licensee, should the Licensee:
a) terminate or suspend its business, make an assignment for the benefit of creditors, or any proceedings is instituted to declare it bankrupt/insolvent, seeking liquidation, wind-up, reorganization, arrangement, protection, relief or composition of its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking an order for relief or the appointment of a receiver or trustee for it or any substantial part of its assets;
b) attempt to, directly or indirectly, assign or transfer any of the rights granted to it under this License without Datamine’s prior written authorization;
c) disclose or use or attempt to use in whole or in part any Datamine Confidential Information otherwise than as authorized herein; or
d) use or attempt to use in whole or in part the Software otherwise than as authorized herein or is otherwise in breach of the Commercial Agreement.
In addition, should Licensee fail to comply with any other terms and conditions of this License and such failure is not cured or remedied to Datamine’s satisfaction within ten (10) days after receipt of Datamine’s written notice, Datamine may terminate this License immediately.
This license is limited to the version of the Software delivered by Licensor and does not include subsequent versions, upgrades, updates, modifications or revisions, unless a separate maintenance contract is purchased. Licensor shall not provide any maintenance or support except as provided for in a separate maintenance contract which you have purchased (if any).
The Software and all modifications and derivations thereof, and all intellectual property rights therein are owned in their entirety by the Licensor, and its structure, organization and code are the valuable trade secrets of the Licensor. The Software is protected by all applicable International Treaty provisions. You shall not modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. You may use trademarks only to identify printed output produced by the Software, in accordance with accepted trademark practice, including identification of trademark owner’s name. Such use of any trademark does not give you any rights of ownership in that trademark. Except as stated above, this License does not grant you any intellectual property rights in the Software. Your possession, installation, or use of the Software does not transfer to you any title to the intellectual property in the Software, and you will not acquire any rights to the Software except as expressly set forth in this Agreement. All copies of the Software made hereunder must contain the same proprietary notices that appear on and in the Software.
You shall not sell, lease, license, rent, loan, resell or otherwise transfer, with or without consideration, the Software. You shall not to permit any third party (other than third parties under contract with you which contains nondisclosure obligations no less restrictive than those set forth herein) to use the Software in any form and shall use all reasonable efforts to ensure that no improper or unauthorized use of the Software is made. You shall not permit third parties to benefit from the use or functionality of the Software via a timesharing, service bureau or other arrangement, except to the extent such use is specified in the applicable price list, purchase order, or product packaging for the Software. You shall not transfer any of the rights granted to you under this Agreement. You may not reverse engineer, decompile, or disassemble the Software. You shall not modify, or create derivative works based upon, the Software in whole or in part. You may not copy the Software except as expressly permitted in Section 1 above. You may not remove any proprietary notices or labels on the Software. All rights not expressly set forth hereunder are reserved by Licensor.
6. Warranty and Disclaimer
Warranty Disclaimer. THE SOFTWARE IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS.
7. Limitation of Liability
Under no circumstances and under no legal theory, whether in tort, contract, or otherwise, shall Licensor or its suppliers be liable to you or to any other person for any indirect, consequential or purely financial damages of any character including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or for any and all other damages or losses. In no event will Licensor be liable for any damages in excess of the list price Licensor charges for a license to the Software, even if Licensor shall have been advised of the possibility of such damages. This limitation of liability shall not apply to liability for death or personal injury to the extent that applicable law prohibits such limitation.
In the event Customer learns that there is, or may be, any infringement or unauthorized use of the Product or disclosure of Confidential Information, Customer shall promptly notify Datamine in writing of same. In the event of a possible infringement or unauthorized use of the Product, Datamine retains the sole right, in its sole discretion, to commence a legal action or to take any action in response thereto. Customer shall cooperate and provide all available information and assistance to Datamine in such regard. Datamine shall not be bound by any settlement or compromise of any charge of infringement made without its written consent. Customer acknowledges that Datamine shall have the right to take such measures which Datamine deems appropriate to minimize any potential damages due to any alleged claim. Customer agrees not to assert against Datamine any infringement claims on the Software.
If a final judgment is obtained prohibiting the use by Customer of any part of the Product by reason of infringement of a registered copyright or patent, Datamine will, at its option and expense, either (i) procure for Customer the right to continue to use the Product, (ii) modify the Product so that it becomes non-infringing, or (iii) repurchase from/reimburse to Customer the fee paid for the Product less depreciation at the rate of twenty-five percent (25%) per year, or pro rata for part of the year, from the date of commencement of the term of use of the Product to the date of repurchase of the Product.
CUSTOMER ACKNOWLEDGES THAT THE ABOVE REMEDIES ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO CUSTOMER RELATED TO CLAIMS FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
9. Security Mechanisms
Datamine treats piracy of its software products seriously and makes every effort to eliminate it. Datamine reserves the right to embed a software security mechanism within the Software to monitor usage of the Software and to verify your compliance with this license. Data collected will not include any customer data created with the Software. By using the Software, you consent to such detection and collection of data, as well as its transmission and use. Datamine also reserves the right to use a hardware lock device, license administration software, and/or a license authorization key to control access to the Software. You may not take any steps to avoid or defeat the purpose of any such measures. Use of any Software without any required lock device or authorization key provided by Datamine is prohibited.
10. High Risk Activities
The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities or communication systems, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). Licensor expressly disclaims any express or implied warranty of fitness for High Risk Activities.
Third Party Claims. To the extent permitted by law, Licensor must defend, indemnify, and hold you harmless against damages, losses, costs, expenses (including reasonable attorney’s fees) and other liabilities arising out of claims, demands, suits, or causes of action by third parties (collectively ‘Claims’), arising out of or in connection with this Agreement which result from the infringement of any intellectual property rights of third parties caused by Licensor or resulting from your use of the Software. Licensor will not be liable for damage to third parties to the extent such damage was caused by your negligence, wilful misconduct, or breach of any term or condition of this Agreement. In the event the Software is held to constitute an infringement, Licensor, at its own expense, will use reasonable efforts to (as elected by Licensor in its sole discretion): (i) procure for you the right to continue to use the Software; (ii) modify the Software so that it is non-infringing; or (iii) provide functionally equivalent replacement software to you. Licensor has the right to control the defense of any Claim. Upon Licensor’s request, you will reasonably cooperate in such defense and Licensor must reimburse you for your reasonable out-of-pocket expenses in providing such cooperation. You will provide prompt notification of any Claim to Licensor. THE FOREGOING PROVISIONS OF THIS SECTION 11 STATE THE ENTIRE LIABILITY AND OBLIGATION OF LICENSOR, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE, AND YOU HEREBY EXPRESSLY WAIVES ANY OTHER SUCH LIABILITIES OR REMEDIES.
This Section 11 will survive termination of this Agreement.
12. Theft, loss and destruction
a. In case the Software is stolen, lost or destroyed you can apply to Licensor for a new copy of the Software. Licensor will provide a new copy at your expense. Media will be replaced in reasonable quantities at Licensor’s expense.
b. In case the Datamine hardware protection device gets stolen, destroyed or lost, you will have to buy a new hardware protection device and a new license from Licensor.
c. In case the Datamine hardware protection device system gets damaged while having its serial number clearly identifiable and the hardware protection device is returned to Licensor, Licensor will provide a replacement hardware protection device at your expense. No new license needs to be purchased from Licensor for this replacement protection device.
d. In case the Software protection license gets stolen, destroyed or lost, you will have to buy a new license from Licensor.
13. Governing Law, Forum and Jurisdiction.
This License shall be governed by the laws of the Province of Ontario, Canada, excluding its conflict of laws rules, and the laws of Canada applicable therein. Each of the parties hereto irrevocably attorns and submits to the exclusive jurisdiction of the courts of Toronto, Ontario, Canada. Notwithstanding, (i) if the dispute relates to a third party claim brought in a different jurisdiction then the dispute may be brought before such jurisdiction, or (ii) in the event of a breach of Section 1 (Use of Software) or Section 5 (Restrictions) causing serious and irreparable harm which may not be adequately compensated for in money, then Datamine, aside from any other remedy which it may have, shall be entitled to seek an injunction from any court of competent jurisdiction to restrain the breaching person from any such breach. The parties expressly exclude and waive the application of the United Nations Convention on Commercial Agreements for the International Sale of Goods (1980) (Vienna Sales Convention) as amended.
This Agreement sets forth all rights for the user of the Software. Licensor reserves the right to periodically audit you to ensure that you are not using any Software in violation of this Agreement. During your standard business hours and upon prior written notice, Licensor may visit you and you will make available to Licensor or its representatives any records pertaining to the Software. The cost of any requested audit will be solely borne by Licensor, unless such audit discloses an underpayment or amount due to Licensor in excess of five percent (5%) of the initial license fee for the Software or you are using the Software in an unauthorized manner, in which case you shall pay the cost of the audit. This Agreement represents the complete and exclusive agreement between Licensor and you concerning your use of the Software and all related matters and supersedes all prior agreements, negotiations, or understandings between Licensor and you in any way relating to these matters. No other terms, conditions, representations, warranties or guarantees, whether written or oral, express or implied, will form a part of this Agreement or have any legal effect whatsoever. This Agreement may not be modified except by a written addendum issued and executed by a duly authorized representative of Licensor. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Licensor or a duly authorized representative of Licensor. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The parties confirm that it is their wish that this Agreement has been written in the English language only. You shall not assign this Agreement and all of its rights hereunder without the prior written consent of Licensor which may be granted or withheld in Licensor’s sole discretion.
15. Other License Types
Trial Version. We may designate the Software as “trial”, “evaluation”, “not for resale”, or other similar designation (“Trial Version”). You may install and use the Trial Version only during the period and only for the purposes that we have stated when we provide the Trial Version. You must not use any materials you produce with the Trial Version for anything other than non-commercial purposes.
Pre-release Version. We may designate the Software as a pre-release or beta version (“Pre-release Version”). Pre-release Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to commercially release the Pre-release Version. You must promptly cease using the Pre-release Version and destroy all copies of Pre-release Version if we request you to do so, or if we release a commercial version of the Pre-release Version. Any separate agreement we enter into with you governing the Pre-release Version will supersede the provisions on Pre-Release Version set out in this section.
Education Version. If we designate the Software as for use by educational users (“Educational Version”), then you may only use the Software for educational non-commercial purposes. You may install and use Educational Version only in the country where you are qualified as an educational user. If you reside in the European Economic Area, then the word “country” in the sentence preceding this one means the European Economic Area.
16. Your Data
Storage. When storage is included, we recommend that you continue to back up your content regularly. We may create reasonable technical limits on your content, such as limits on file size, storage space, processing capacity, and other technical limits. We may suspend the services until you are within the storage space limit associated with your account.
Our Access. We will not access or view any of your content, except as reasonably necessary to (i) respond to support requests; (ii) detect, prevent, or otherwise address fraud, security, unlawful, or technical issues; and (iii) enforce these terms.
17. Taxes and Duties
Licensee shall be responsible for the payment of any and all taxes and duties, including sales, value added, goods and services taxes, use taxes, excise, custom duties and similar type of taxes in connection with the Software. In the event that Licensee is required under applicable laws to withhold or deduct taxes/duties on any payment to be made to Datamine, then the amount payable shall be increased such that Datamine receives the amounts it would have received absent such tax withholding or deduction. If Datamine is required to pay any of the aforementioned taxes/duties, penalties and interest, Licensee shall promptly reimburse to Datamine any such payments.
Licensee shall be solely responsible for obtaining, and complying with, if applicable, (i) all import laws and regulations, and government approvals or permits necessary to either import or use the Software, and (ii) all export laws and regulations, and government approvals or permits necessary to return, if applicable, tangible material related to the Software to Datamine upon the termination in whole or in part of this License.