Software License Agreement

FORMULATION AGREEMENT:

THIS SOFTWARE LICENSE AGREEMENT (This Agreement) is made and entered into as of the order date, between the customer and/or company stated in the billing details (the “Customer”) and FireAcad® Inc.. (the “Supplier”).

The Customer will formally read the software license agreement outlined on this website. Both parties must accept terms. When The Customer accepts the Software License Agreement, The Customer binds this legal agreement and understands the legal terms and contract. If failed to sign this Agreement, The Customer by default will automatically bin the agreement when FireAcad software is installed on the computer.


LEGAL TERMS AND CONTRACT

WHEREAS:

  1. The supplier has developed and is marketing a computer software program known as “FIREACAD” and the customer desires to license such program upon and subject to the terms and conditions set forth herein.
  2. The Parties hereto agree as follows:

ARTICLE ONE: DEFINITIONS

  1. The following terms are used in this agreement, as defined in this paragraph:
    1. “Licensed Program” shall mean a set of computer programs in object code, known as “FIREACAD” which set of computer programs is owned and marketed by the Supplier and is specified on the face of this Agreement and is used for the design of sprinkler systems.
    2. “Licensed Materials” shall mean user manuals, and any other documentation as may be provided by the supplier to the Customer for use with the Licensed Program.
    3. “Licensed Program and Materials” shall mean both the Licensed Program and Licensed Materials as defined above.
    4. “Functional Specifications” shall mean a written description of the functions of the Licensed Program, which Functional Specifications shall be delivered to the Customer by the Supplier upon delivery of the Licensed Program.

ARTICLE TWO: GRANT OF LICENSE

  1. Subject to the terms and conditions of this Agreement, the supplier grants to the Customer a perpetual royalty – free, non-exclusive, non-transferable license to use the Licensed Program, which shall commence upon payment by the Customer of the license fee specified on the face of this Agreement (the “License Fee”).
  2. The License granted in this Agreement is restricted to use by the Customer for its own operation. The Customer shall also have the right to use the License Materials to instruct its staff in the operation of the Licensed Program, but shall not have the right to copy the Licensed Materials.
  3. The Customer shall have no right to sub-license under this agreement, and the Customer shall not assign its license, whether voluntarily or by the operation of law of otherwise, without prior written approval of the Supplier.

ARTICLE THREE: COPIES OF LICENSED MATERIALS

  1. Upon payment by the Customer of the License Fee, the supplier shall make available to the Customer one copy of the Licensed Materials. Any additional copies of the Licensed Materials as are reasonably necessary for the use of the Licensed Program by the Customer shall be provided by the Supplier to the Customer at the Supplier’s then-current charges.

ARTICLE FOUR: INSTALLATION AND TRAINING SERVICES

  1. If specified on the face page of this Agreement, the Supplier will provide installation services (the “installation Services”), upon payment by the Customer to the Supplier of the installation fee as therein set out, together with reasonable out of pocket expenses incurred by the supplier for travel, food, lodging, long distance telephone, and facsimile transmissions with respect to such installation, to assist the Customer in installing the Licensed Program on the Customer’s computer.
  2. Upon written request of the Customer, the Supplier will provide additional installation or training service or both at the Supplier’s then prevailing daily rates, subject to availability of personnel. Reasonable out-of-pocket expenses incurred by the Supplier for travel, food, lodging and long distance telephone, or facsimile transmission with respect to such training and installation services shall be paid by the Customer.

ARTICLE FIVE: LICENSE FEE

  1. In consideration of the license granted by the Supplier to the Customer, the Customer shall pay to the Supplier, as a license fee, the License Fee as specified on the face of this Agreement in lawful money of the United States, this sum to be paid as specified in section 7.0 of this Agreement.
  2. The License Fee does not include any provincial or Federal Sales, or similar taxes or duties, any and all of which shall be assumed paid by the Customer.
  3. In the event the Customer fails or neglects to make any payment for the Licensed Program when due, the Supplier may at its option and in addition to any other right which it has under this Agreement or at law:
    1. Enter upon the Customer’s premises and take possession of the Licensed Program during normal business hours;
    2. Delay delivery of any hardware (if applicable) until payment is made; or delay delivery of any part of the Licensed Program until the payment is made; or both.

ARTICLE SIX: DELIVERY

  1. Licensed Program and Materials will be delivered to the Customer pursuant to the estimated delivery date on the face of this Agreement. The Supplier shall use its best efforts to meet this delivery date but does not covenant, represent or warrant that this delivery date will be met.

ARTICLE SEVEN: INSTALLATION AND ACCEPTANCE

  1. The Licensed Program is deemed accepted by the Customer and the License Fee and, if applicable, the installation fee, as stated on the face of this Agreement are due and payable upon:
    1. Completion by the Supplier of the activities specified on Section 4.0 if Installation Services are required by the customer; or
    2. If Installation Services are not required by the Customer, upon delivery of the Licensed Program by the Supplier.

ARTICLE EIGHT: MAINTENANCE AND SUPPORT

  1. The first year of this Agreement shall be no charge and for each and every year thereafter for the balance of the term of this Agreement, the Customer shall pay each year the Supplier the annual license renewal fee then in effect the Supplier will provide the Customer with:
    1. Any assistance by telephone, facsimile or mail as is necessary to have the Licensed Program operate in accordance with the specifications published in the manual for the Licensed Program;
    2. Updates to the manual and enhancements of improvements to Licensed Program that result from the usual software maintenance process; and
    3. Enhancements, improvements or other changes to the Licensed Program developed by the Supplier.
  2. Requests for maintenance and support made after the Customer’s failure to have paid the annual maintenance fee for any year of this Agreement and requests for enhancements or improvements or for on-site installation of modifications, whenever made will be billed to the Customer at the Supplier’s standard rates for these services.
  3. The Supplier retains and reserves the right to withdraw the Licensed Program from the market or to discontinue maintenance and support of the Licensed Program at any time.
  4. The Customer agrees that there are to be no programming or any other services to be provided under this Agreement by the Supplier in relation to the Licensed Programs, including, without limitation, any services in relation to any errors, malfunctions or defects which may arise during the term of this Agreement, except where these services are rendered through any further agreement between the parties and, in that case, at a charge to be agreed upon at the time the further agreement may be entered into.

ARTICLE NINE: WARRANTY

  1. The Supplier warrants that the Licensed Program will perform in accordance with the Functional Specifications for a period of 90 days following acceptance, if the program is properly used as set forth in the Licensed Materials. This warranty is void if the Customer or any third party changes or modifies the Licensed Program. The liability of the Supplier under this paragraph is limited to the correction of any error or malfunction and shall not include liability for loss of data, loss of computer time, any direct damages or any indirect, special or consequential damages as more specifically set out in Section 9.2 of this Agreement.  This warranty only extends to those failures to perform communicated to the Supplier in writing within the 90 days following acceptance of the Licensed Program.
  2. In the event the Customer calls upon the Supplier under this paragraph to correct an error and the Supplier determines after investigation that the Licensed Program is performing as described in the Functional Specifications, the Customer shall reimburse the Supplier for time expended by the Supplier personnel at the Supplier’s then current hourly rate for maintenance, as well as the reasonable travel and living costs incurred by the Supplier’s employees.
  3. This warranty is in lieu of all other warranties or conditions. Except as specifically provided for in this Article Nine, the Supplier makes no warranties, express or implied, including, but not limited to, the condition, quality or freedom from error of the Licensed Program, any warranty of merchantability or fitness for a particular purpose. No other warranties, express or implied are given.  The Supplier specifically does not warrant that the Licensed Program will meet all the Customer’s requirements, or will operate in all the combinations which may be selected for use by the Customer, or that the operation of the Licensed Program will be error free or uninterrupted, or that all program defects will be corrected.

ARTICLE TEN: OWNERSHIP OF LICENSED PROGRAM AND CONFIDENTIALITY

  1. The Supplier’s entire liability and the Customer’s exclusive remedy shall be as follows:
    1. With respect to any claim concerning performance or non-performance by the Supplier pursuant to, or in any other way related to the subject matter of this Agreement, or with respect to any claim of nonperformance of the Licensed Program to the terms of this Agreement, or any claim for breach or default by the Supplier, the Customer’s exclusive remedy shall be the recovery of its direct damages but only to the limit set forth in this paragraph.  This limitation shall apply whether or not the alleged breach by the supplier is a breach of condition or fundamental term, or a fundamental breach.
    2. The Supplier’s liability for damages to the Customer for any cause, and regardless of the form of action, whether in contract or in tort including negligence, shall be limited to the Customer’s direct damages and shall not exceed the amounts paid by the Customer for the Licensed Program.
    3. In no event will the Supplier be liable for or the Customer have remedy for the recovery of:
      1. any special, indirect or consequential damages even if the Supplier has been advised of the possibility of them including, but not limited to, lost profits, lost revenues, failure to realize expected savings, or other commercial or economic losses of any kind;
        or
      2. any damages caused by the Customer’s failure to meet the Customer’s responsibilities.

ARTICLE ELEVEN: LIMITATION OF REMEDIES

  1. The Customer acknowledges that the Licensed Program and Materials are the property of the Supplier and that the only rights which the Customer obtains to the Licensed Program and Materials is the right of use in accordance with the terms of this license.
  2. The Customer will ensure that copyright, proprietary and trade secret notices of the Supplier will remain on Licensed Program in machine-readable form, and on all Licensed Materials. The use of a copyright notice on the Licensed Program and Materials shall not be taken to indicate that they have been published.
  3. The Customer acknowledges that the Licensed Program and Materials contain proprietary and confidential information of the Supplier. The  Customer will not disclose any of this information to any other individual or entity without the prior written consent of the Supplier and agrees to keep all such material confidential.  The Customer will take the same care to safeguard the Licensed Program and Materials as it takes to safeguard its own confidential information and this care shall not be any less than would be taken by a reasonable company to safeguard its information.  Without limiting the generality of the foregoing, the Licensed Program shall be accessible only to those employees with a need for access to preform their duties, and Licensed Materials other than operator’s manuals shall be stored in a locked place and shall be accessible only to those employees with a need for access in order to preform their duties.  Employees having this access shall be specifically advised in writing of the confidentiality of Licensed Program and Materials.  Operators manuals shall prominently display a legend stating that they are the property of the Supplier and that these manuals contain confidential information, and operators shall not be permitted to take them from their workstations.
  4. No copies of any portion of Licensed Program or Licensed Materials shall be made by the Customer or the Customer’s employees, save that the Customer may make one copy of Licensed Program and updates or enhancements (if any) in machine – readable form for archival and back up purposes.  Any such copy shall become property of the Supplier.
  5. In order to assist the Supplier in the protection of its proprietary rights with respect to the Licensed Program and Materials the Customers shall permit the Supplier to inspect during normal business hours the facility at which the Licensed Program is used and any facility at which the Licensed Program or Licensed Material is stored. The Customer shall advise the Supplier on demand of all locations where Licensed Program or any Licensed Materials, or both, are stored, and shall provide the Supplier with access to the Licensed Program and Materials, including any copies of them.
  6. It is specifically agreed that any knowing or negligent disclosure of the Licensed Program by the Customer, its employees or its agents is a material breach of this Agreement. The Customer recognizes that the Licensed Program and Materials and other materials supplied by the Supplier to the Customer hereunder are subject to the propriety rights of the Supplier and copyright law.

ARTICLE TWELVE: DEFAULT

  1. Failure by the Customer to comply with any term or condition of this Agreement shall entitle the Supplier to give the Customer written notice requiring it to make good the default.
  2. If the default complained of has not been cured within thirty (30) days following receipt of the notice aforesaid, the notifying party shall be entitled, in addition to any other rights it may have under this Agreement or otherwise under law to terminate this Agreement and any license granted hereunder by giving notice to take effect immediately.
  3. The right of the Supplier to terminate this Agreement shall not be affected by its failure to take action with respect to any previous default.
  4. It is recognized by the parties that the confidentiality of the Licensed Program and Materials is of great and central importance to the business of the Supplier. The parties therefore agree that if the Customer shall breach any term of Article 11 of this Agreement, then the Supplier shall have the right, at its election, and notwithstanding any other provision of this Agreement, to terminate this Agreement forthwith without notice.
  5. This Agreement shall terminate immediately and automatically if the Customer becomes insolvent, enters or is placed into receivership, or if the Customer is petitioned into bankruptcy or makes a proposal under the Bankruptcy Act for the benefit of its creditors, or ceases to carry on business or is wound up.

ARTICLE THIRTEEN: PROCEDURE ON TERMINATION

  1. Upon termination of this Agreement by reason of default by the Customer, the Customer shall return the Licensed Program and Materials and any copies of them to the Supplier and shall certify under the hand of a duly authorized officer of the Customer, that the original and all copies of the Licensed Program and Materials have been given to the Supplier, all records or copies of the licensed Program or Materials in computer memory have been destroyed, and that no copies of any part of the Licensed Program and Materials, in any form, remain in the possession or control of the Customer.
  2. Termination of this Agreement shall not affect any right of action of the Supplier arising from anything was done or not done, as the case may be prior to the termination taking effect.

ARTICLE FOURTEEN: SUPERVENING EVENTS

  1. The Supplier shall not be liable for delay or failure in performance resulting from acts beyond its control including, but not limited to acts of God, acts of war, riot, fire, flood, or other disaster, acts of government, strike, lock out, communication line or power failures.

ARTICLE FIFTEEN: GOVERNING LAW AND ENFORCEMENT OF AGREEMENT

  1. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada. In the event of any dispute under the Agreement, a suit may be brought only in a court of competent jurisdiction of the Province of Ontario, Canada.

ARTICLE SIXTEEN: ASSIGNMENT

  1. The Customer shall have no right to assign the benefit of this agreement without express written permission from the Supplier. In the event that the customer merges with another company or sells or assigns its entire business to another company, the Supplier will not withhold unreasonably its permission to assign benefits of this agreement to that other company, provided that the Supplier is reasonably satisfied that the confidentiality of Licensed Program and Materials will be maintained.  Any attempt by the Customer to sub-licence, assign or transfer any of the rights, duties or obligations hereunder is void.  Transfer of the Licensed Program is permitted when the buyout stated on the face of this Agreement has been completed.

ARTICLE SEVENTEEN: NOTICE

  1. Any notice required or permitted to be sent under this Agreement shall be sent to he addresses specified on the face of this Agreement by prepaid registered mail, return receipt requested. Notice so sent will be deemed effective on the third day following mailing except in the case of a mail strike or disruption of postal services.  In the case of an actual or apprehended mail strike or disruption of the mail services, notice shall be delivered by hand (and shall be signed for by the recipient) or by courier service.

ARTICLE EIGHTEEN: ENTIRE AGREEMENT

  1. This agreement and any schedule attached to it and initialed or signed by both parties contains the complete and exclusive statement of the Agreement between the parties and supersedes all prior and contemporaneous Agreements, understandings, proposals, negotiations, representations or warranties of any kind, whether oral or written representation that is not expressly contained in this Agreement is binding on the Supplier.
  2. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be severed from the Agreement on the other provisions shall remain in full force.
  3. A term or condition of this Agreement can be waived or modified only by written consent of both parties. Forbearance or indulgence by either party may invoke any remedy available under the Agreement or by law despite the forbearance or indulgence.
  4. Title and paragraph headings contained in this Agreement are for the purposes of reference only, and shall not affect the interpretation on this Agreement.

BY AGREEING TO THESE TERMS, CONDITIONS AND CONTRACT, THE CUSTOMER CERTIFIES THAT THE CONTENT IN THIS PROPOSAL IS ACCEPTABLE FOR LICENSING THE SOFTWARE.

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