Dundas BI Gateway Application License Agreement
This Dundas BI Gateway Application License Agreement (the “Agreement”) is entered into by and between DUNDAS DATA VISUALIZATION, INC., an Ontario corporation with its head office at 250 Ferrand Drive, Suite 500, Toronto, Ontario, Canada ("Dundas") and the Entity that installed the Gateway Application for i) its own use, ii) use by third parties or iii) for evaluation purposes (“Licensee”).
The Agreement shall be applicable to
· Internet- based services.
· Support services.
Each of the following acts by Licensee shall constitute Licensee’s acceptance of the terms and conditions of this Agreement and Licensee’s agreement to be bound thereby:
(a) installation and use of the Gateway Application on any number of devices;
(b) clicking to signify acceptance of this Agreement during the Gateway Application installation process.
Licensee shall have no rights to the Gateway Application or any use thereof unless Licensee has accepted the terms and conditions of this Agreement and agreed to be bound thereby.
IF WITHIN THIRTY (30) DAYS OF ACCEPTANCE, LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSEE MAY NOT USE THE GATEWAY APPLICATION AND DOCUMENTATION, AND LICENSEE IS REQUIRED TO PROMPTLY UNINSTALL THE GATEWAY APPLICATION AND CONFIRM IN WRITING TO DUNDAS THAT THE GATEWAY APPLICATION HAS BEEN UNISTALLED AND UPON RECEIPT OF SUCH CONFIRMATION, DUNDAS SHALL PROVIDE LICENSEE WITH A FULL REFUND OF ANY PREPAID FEES IN RESPECT OF THE GATEWAY APPLICATION.
1.DEFINITIONS. In this Agreement, in addition to terms defined in other sections, the following terms shall have the following meanings
"Authorized Users" means Licensee’s employees, consultants, contractors, and agents who are authorized by Licensee to access and use the Gateway Application, under the rights granted to Licensee pursuant to this Agreement;
“Content” means information obtained by Dundas from publicly available sources or third-party providers and made available to Licensee through the Gateway Application and Services.
“Documentation” means the user documentation accompanying or otherwise made available for use with the Gateway Application (including, without limitation, any web based user documentation). Documentation does not include white papers, community forums, training videos, tutorials, knowledge base articles or other similar resources which may be made available for Licensee’s convenience.
“Entity” means an individual or a legally recognized business entity but shall exclude any subsidiaries, assigns, affiliates, partners, customers, contractors, agents and/or partners of the individual or the legally recognized business entity unless explicitly agreed to, in writing, by the Parties.
“Gateway Application” means a software application that may be installed by Licensee on Licensee Systems, and enables Licensee to connect to Licensee Data from the Software through the Services. The Gateway Application establishes a secure connection (e.g., using HTTPS) to the Software through the Services. Only Licensee’s Authorized Users shall be permitted to use and access the Gateway Application.
"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, trojan horse, worm, backdoor, malware, or other malicious computer code, the purpose or effect of which is to: (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any: (i) computer, software, firmware, hardware, system, or network; or (ii) application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent any Authorized User from accessing or using the Gateway Application as intended by this Agreement.
“Invoice” means the invoice issued by Dundas to Licensee. The Invoice and the terms contained therein are incorporated into and shall form part of this Agreement.
“License” means the license granted to Licensee on installation of the Gateway Application.
“Licensee Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Licensee or an Authorized User by or through the Services and Gateway Application. For the avoidance of doubt, Licensee Data does not include Content, Non-Dundas Applications, Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Licensee or any Authorized User.
"Licensee Systems" means Licensee's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Licensee or through the use of third-party services.
“Managed Services”(referred to as Services) means the hosted software-as-a-service(SaaS) offering pursuant to which Licensee is granted designated licenses to access the Software, in accordance with the terms of the applicable Dundas BI Managed Software Services – End User SaaS License Agreement (“EULA”) and the terms contained herein, as well.
“Non-Dundas Applications” are software applications, extensions, database services or other functionality, whether web-based, mobile, offline or otherwise, that are provided by Licensee or a third-party or that are listed on any marketplace and that interoperate with the Gateway Application.
Resultant Data" means data and information related to Licensee's use of the Gateway Application or Services that is used by Dundas in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Gateway Application or Service.
“Software” means Dundas’ proprietary software “Dundas BI” hosted on Dundas Managed Services platform and as described more fully in the then-current version of any supporting product help and technical specifications documentation provided by Dundas with the Gateway Application to Licensee. This Agreement applies only to the Gateway Application and does not grant Licensee rights to any other Dundas services or software. All access rights and technical capabilities for each Licensee are as set forth in the Documentation. All undefined names of software products have the meanings given to them in the Documentation.
2. LICENSE GRANT. Subject to compliance with the terms and conditions of this Agreement and Licensee acquiring the Software which shall grant access to the Services, in addition to payment of all applicable fees, if any, in respect of each License provided to Licensee, Dundas grants to Licensee and Licensee accepts from Dundas a non-exclusive, non-transferable license to: (i) install the Gateway Application for sole and exclusive use in conjunction with the Services, (ii) only allow access and use of the Gateway Application to Authorized Users; and (iii) to access and use the Documentation solely for purposes of supporting Licensee’s installation of the Gateway Application in accordance with the terms of this Agreement. Any other access or use of the Gateway Application or Documentation by Licensee or any third party is strictly forbidden. All use of the Software by Licensee shall be solely for its internal business purposes in accordance with the terms of this Agreement and shall, for the avoidance of doubt, specifically exclude any and all interface with external entities including but not limited to client’s, customers, and partners. In order to install the Gateway Application Licensee must be using a supported operating system, with the requirements set out at https://www.dundas.com/support/learning/documentation/installation/using-a-dundas-bi-gateway. Licensee agrees to all license restrictions and provisions contained in this Agreement as it relates to the licenses granted in this Section. Licensee shall be responsible for all acts or omissions of the Authorized User’s, (and any third parties whom Licensee grants access to the Gateway Application contrary to the provisions of this Agreement) including, without limitation, all breaches of the terms of this Agreement. Any breach by an Authorized User of the terms of this Agreement shall be deemed to be a breach by Licensee. For clarity, the foregoing grant (including its restrictions) also applies to all Licensees who have installed the Gateway Application for evaluation purposes even though such Licensees have not paid any applicable fees.
3. LICENSE RESTRICTIONS. In addition to the restrictions included in each License (which are incorporated into this Section 3), Licensee shall not (nor shall Licensee allow any Authorized User or third party to) (i) remove any copyright, product identification, service mark, watermark, trade-mark or patent notices contained in or on the Gateway Application, or Documentation; (ii) rent, lease, lend or distribute the Gateway Application or use the Gateway Application, Services and Software to operate a subscription service, service bureau, Software as a Service (SaaS) offering or use the Gateway Application, Services and Software to otherwise provide hosting services (iii) use the Gateway Application to create, develop, distribute and/or maintain any component libraries for Data Visualization; (iv) reverse engineer, decompile or disassemble the Gateway Application, nor attempt to gain knowledge of the source code, APIs, underlying ideas, algorithms, file formats, data or programming interfaces of or expose the functionality of the Gateway Application in any manner whatsoever, except as otherwise specifically permitted by applicable law notwithstanding such a restriction; (v) separate the Gateway Application, into components (or use components on a stand-alone basis or in any way which separates such components from the Gateway Application as a whole); (vi) sublicense (except as provided for in this Agreement), modify, distribute, or create derivative works based on the Gateway Application or Documentation or any part thereof; (vii) be engaged at any time in the manufacture, use, distribution or transfer of counterfeit, pirated or illegal software; or (viii) share or redistribute the output generated through the use of the Gateway Application which includes, but is not limited to, taking and sharing screenshots, creating and distributing reports, and/or content generated through the Gateway Application through the “Share/Export” functionality, all of which shall be strictly limited for use only by Licensee and no other Entities.
4. ADDITIONAL PROVISOS FOR BETA VERSIONS. If the Gateway Application is identified as prerelease code (a “Beta Version”), the following additional License provisions apply and supersede any provisions of this Agreement which expressly contradict the provisions contained in this Section (a “Beta License”): (a) Licensee acknowledges that a Beta Version is not at the level of performance, stability and compatibility of a final, generally released product offering and may not operate properly, may contain “bugs”, and may be substantially modified by Dundas prior to commercial release; (b) this Beta License expires upon availability of a commercial release of the Gateway Application from Dundas; (c) the Beta Version may only be used for testing and evaluation purposes and may not be redistributed; and (d) Licensee agrees that the Beta Version is provided “as is, where is” without warranty or condition of any kind and Licensee assumes all risks relating to its use; and (e ) Licensee completely waives and disclaims all right to damages and all other claims whatsoever related to any data breaches including but not limited to any loss, modification or unauthorized access in Licensee Data which may occur; and (f) Licensee is solely responsible for any data it uploads or connects to the Beta Version of the Gateway Application and Licensee agrees not to connect to or upload, transmit or otherwise make available any content that is illegal, unlawful, harmful, obscene, libelous, invasive of another’s privacy or otherwise objectionable; and (g) Dundas does not guarantee the confidentiality of such data, all of which is connected to or uploaded at Licensee’s sole risk; and (h) Dundas does not back-up any such data and Licensee is solely responsible for creating back-ups; and (i) at the end of the Beta Version, any and all data which Licensee connected to or uploaded may be deleted by Dundas (without any further notice) and will be non-retrievable.
5. ADDITIONAL PROVISOS FOR EVALUATION VERSIONS. If the Gateway Application is licensed for evaluation purposes only, the following additional provisions apply and supersede any provisions of this Agreement which expressly contradict the provisions contained in this Section (an “Evaluation License”): (a) Dundas shall be entitled to limit any or all functionality of the Gateway Application licensed for evaluation purposes, (b) the Evaluation License expires twenty-five (25) days after its grant or such other period as Dundas determines, acting in its sole discretion; (c) the Gateway Application may only be used for testing and evaluation purposes; (d) Licensee agrees that the Gateway Application and any access relating thereto is provided “as is, where is” without warranty or condition of any kind and Licensee assumes all risks relating to its installation, and access; (e) Licensee is solely responsible for maintaining the confidentiality of any username and password relating to any Evaluation License; (f) Licensee is solely responsible for all activities that occur under its evaluation account; (g) Licensee is solely responsible for any data it uploads or connects to the Gateway Application and Licensee agrees not to upload, transmit or otherwise make available any content that is illegal, unlawful, harmful, obscene, libelous, invasive of another’s privacy or otherwise objectionable; (h) Dundas does not guarantee the confidentiality of such data, all of which is connected to or uploaded at Licensee’s sole risk; (i) Dundas does not back-up any such data and Licensee is solely responsible for creating back-ups; (j) at the end of the evaluation period, any and all data which Licensee uploaded or connected to may be deleted by Dundas (without any further notice) and will be non-retrievable; and (k) Dundas reserves the right, acting in its sole and unfettered discretion, at any time and from time to time to change, modify, discontinue or temporarily or permanently cancel the Evaluation License. Licensee will no longer have access to the Evaluation License at the end of the applicable evaluation period and at such time, Licensee shall have no further rights whatsoever to such evaluation Gateway Application.
LICENSEE IS SOLELY RESPONSIBLE FOR ANY DATA IT ACCESSES, STORES, UPLOADS OR CONNECTS TO THE GATEWAY APPLICATION AND LICENSEE AGREES NOT TO CONNECT TO OR UPLOAD, TRANSMIT OR OTHERWISE MAKE AVAILABLE ANY CONTENT THAT IS ILLEGAL, UNLAWFUL, HARMFUL, OBSCENE, LIBELOUS, INVASIVE OF ANOTHER’S PRIVACY OR OTHERWISE OBJECTIONABLE. DUNDAS DOES NOT GUARANTEE THE CONFIDENTIALITY OF SUCH LICENSEE DATA, ALL OF WHICH IS CONNECTED TO OR UPLOADED AT LICENSEE’S SOLE RISK. DUNDAS DOES NOT BACK-UP ANY SUCH LICENSEE DATA AND LICENSEE IS SOLELY RESPONSIBLE FOR CREATING BACK-UPS; AND UPON TERMINATION, ANY AND ALL LICENSEE DATA WHICH LICENSEE UPLOADED MAY BE DELETED BY DUNDAS FROM THE SERVICES (WITHOUT ANY FURTHER NOTICE) AND WILL THEREAFTER BE NON-RETRIEVABLE.
7. CONTENT. Licensee’s use of any Content is subject to the applicable terms between Licensee and the Content provider, and Licensee shall comply with those terms. Dundas does not guarantee the continued availability of any Content or related features, and may cease providing Content without entitling Licensee to any refund, credit, or other compensation, if for example and without limitation, the provider ceases to make the Content available in a manner acceptable to Dundas. Dundas is not designating or adopting Content as its own.
8. NON-DUNDAS APPLICATIONS. The Gateway Application may contain features designed to interoperate with Non-Dundas Applications. If Licensee enables, accesses or uses any Non-Dundas Applications, the following apply: (a) Licensee’s use of each Non-Dundas Application is subject to the applicable terms between Licensee and the Non-Dundas Application provider, and Licensee shall comply with those terms; (b) any exchange of Licensee Data or other data between Licensee and any Non-Dundas Application Licensee uses is solely between Licensee and the applicable third-party provider; (c) Dundas does not warrant or support Non-Dundas Applications or other third-party products or services, whether or not they are designated as “certified” or otherwise; and (d) Licensee shall be responsible for the interoperation of any Non-Dundas Application with Licensee’s use of the Gateway Application. Dundas does not guarantee the continued availability of any Non-Dundas Application or related features, and may cease providing same without entitling Licensee to any compensation, if for example and without limitation, the provider of a Non-Dundas Application ceases to make the Non-Dundas Application available for interoperation with the Gateway Application in a manner acceptable to Dundas. If Licensee chooses to use a Non-Dundas Application with the Gateway Application, Licensee grants to Dundas permission to allow the Non-Dundas Application and its provider(s) to access Licensee Data and information about Licensee’s usage of the Non-Dundas Application for the interoperation of that Non-Dundas Application. Use of Licensee Data by the Non-Dundas Application is governed by Licensee’s agreement with the Non-Dundas Application provider. Dundas is not responsible for any disclosure, modification, use or deletion of Licensee Data resulting from any such access by Non-Dundas Applications or their provider(s).
The Gateway Application may include third party materials and notices, for Licensee’s information only. The Gateway Application may also include components licensed under open source licenses with source code availability obligations. Use of the aforementioned third party materials and notices shall be subject to other terms and conditions which can be found at https://www.dundas.com/support/learning/documentation/release-notes/third-party-legal-notices.
9. OWNERSHIP. The Gateway Application and Documentation are protected by Canadian intellectual property and international treaty provisions. Dundas (and/or its third party licensors and suppliers) retain all right, title and interest in and to the Gateway Application, and Documentation including any and all derivative works and/or modifications made thereto, (including, without limitation, all intellectual property rights therein), regardless of the form or media. The Gateway Application and Documentation are licensed, not sold, and all rights not expressly granted in this Agreement are reserved by Dundas (and/or its third party licensors and suppliers). Licensee acknowledges that Licensee’s possession, access or use of the Gateway Application and Documentation does not transfer to Licensee any title or ownership interest in or to the intellectual property in the Gateway Application or Documentation, and that Licensee will not acquire any rights to the Gateway Application or Documentation except as expressly set forth in this Agreement. This Agreement does not grant Licensee any rights in any trade-marks, service marks and/or business names of Dundas and/or its third party licensors and suppliers, all of which remain the exclusive property of Dundas (and/or its third party licensors and suppliers).
10. PAYMENT. Licensee acknowledges and agrees that Licensee’s License rights under this Agreement are conditional upon receipt by Dundas of all applicable license fees, if any, as set out in the Invoice. If an Invoice does not contain payment terms, Licensee agrees to pay all invoices provided by Dundas within thirty (30) days of the date of the applicable Invoice. All applicable taxes, import and export fees, customs fees, duties, tariffs and similar amounts and any other charges or assessments established by any governmental agency, except taxes imposed on Dundas based on its net income, are extra and in addition to fees payable under an Invoice and are the responsibility of Licensee. If any withholding tax is required by applicable law to be paid by Licensee in relation to payments due to Dundas hereunder, Licensee shall provide Dundas with official receipts and/or certificates from the appropriate taxing authorities to establish that any applicable taxes have been paid. Any invoice not paid when due shall bear interest from the date of invoice at a rate equal to the lesser of eighteen percent (18%) per annum (calculated monthly) or the highest rate allowed under applicable law. Time is of the essence for all payments due under this Agreement. All payments are irrevocable and nonrefundable, except as otherwise specifically indicated herein Unless expressly stated otherwise, all amounts referred to herein or in an Invoice are in United States of America dollars.
11.TERM. Each Term shall begin on the date of installation of the Gateway Application (“Effective Date”) and lapses upon expiry of the applicable Services being used in conjunction with the Gateway Application or upon uninstallation of the Gateway Application by Licensee. Dundas may terminate this Agreement upon issuance of written notice to Licensee due to: (i) an intellectual property infringement claim relating to the Gateway Application in the event that Dundas is unable to remedy the infringement by providing a work-around or by obtaining the required License rights; (ii) in accordance with applicable law, including a court order; (iii) Licensee’s breach of any term of this Agreement (including, without limitation, non-payment, when due, of fees payable by Licensee pursuant to this Agreement); or (iv) Licensee’s default under any other agreement entered into between Dundas and Licensee. Licensee may terminate this Agreement for convenience at any time by uninstalling the Gateway Application and Documentation; provided that no such termination shall entitle Licensee to a refund of any License fees or Product Support fees or other amounts paid by Licensee, except as provided for by the terms of this Agreement. Upon termination, Licensee shall uninstall the Gateway Application and destroy or return the written copies of the Documentation and Licensee may, at Dundas request, certify in writing to Dundas that the Gateway Application has been uninstalled and that all known copies of the Documentation, have been destroyed or returned to Dundas. All provisions relating to confidentiality, Dundas (and its third party licensors and suppliers’) ownership and proprietary rights, limitations of liability, disclaimers of warranties, waivers and governing law shall survive the termination of this Agreement for any reason.
12. CONFIDENTIALITY. Licensee agrees with Dundas that: (a) the Gateway Application and Documentation contains information or material which is proprietary and/or confidential to Dundas (and/or its third party licensors and suppliers) ("Confidential Information"), which is not generally known other than by Dundas, and which Licensee may obtain knowledge of through, or as a result of, the relationship established hereunder with Dundas. Without limiting the generality of the foregoing, Confidential Information also includes, but is not limited to, the following types of information, and other information of a similar nature (whether or not reduced to writing or still in development): designs, concepts, ideas, inventions, specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, methodology, processes, procedures, know-how, new product or new technology information, strategies and development plans (including prospective trade names or trademarks); (b) such Confidential Information has been developed and obtained by Dundas by the investment of significant time, effort and expense, and provides Dundas with a significant competitive advantage in its business; (c) Licensee agrees that Licensee shall not make use of the Confidential Information for Licensee’s own benefit or for the benefit of any person or Entity other than Dundas, except for the purposes of exercising Licensee’s express License rights granted under this Agreement; and (d) Licensee agrees to hold in confidence, and not to disclose or reveal to any person or Entity, the Gateway Application, Documentation or any other Confidential Information concerning the Gateway Application other than to such persons as Dundas shall have specifically agreed in writing to permit Licensee to so disclose, except where such disclosure is necessary for Licensee to utilize the Gateway Application for the furtherance of the express License rights granted under this Agreement.
13. UNSOLICITED IDEAS. Neither Dundas nor any of its employees are authorized to accept or consider unsolicited ideas, including ideas for new advertising campaigns, new promotions, new products or technologies, processes, materials, marketing plans, new product names, original creative artwork, samples, demos, other works, in any form or on any media, suggestions, enhancements, requests, recommendations, corrections, or other feedback relating to the Gateway Application (“Unsolicited Materials”). The sole purpose of this policy is to avoid potential misunderstandings or disputes when Dundas' products or marketing strategies might seem similar to such materials submitted to Dundas. Licensee (and its employees) acknowledge and agree with this policy and agree not to send any Unsolicited Materials to Dundas, or its employees. If, despite this request, Licensee still sends unsolicited materials to Dundas or its employees such materials will not be treated as confidential or proprietary and, in consideration of any license rights granted to licensee, Licensee hereby grants to Dundas a worldwide, non-terminable, royalty free right and license to use, copy, disclose, license, distribute and exploit such unsolicited materials, in perpetuity.
14. UNSOLICITED “BUG FIXES”. If Licensee identifies problems with the usability, operability, or interoperability of the Gateway Application Licensee may deliver or suggest “bug fixes” to Dundas for Dundas’ consideration. For clarity, however, Licensee has no obligation to submit any “bug fixes” to Dundas but, if Licensee does, then, in consideration of any License rights granted to a Licensee, such Licensee hereby grants to Dundas a perpetual, worldwide, non-terminable, irrevocable, royalty free right and license to use and exploit such bug fixes as it deems appropriate and Dundas shall have the absolute right to incorporate all such “bug fixes” accepted by Dundas into Dundas’ products and services for all purposes, without any payment or other compensation to Licensee.
15.PRODUCT SUPPORT & MAINTENANCE POLICY. The terms and conditions of Dundas’ Product Support are set forth at: https://www.dundas.com/support/support-center/support-terms (the “Support Terms”), which are incorporated into this Agreement by reference. Subject to the terms and conditions of this Agreement, including payment of any applicable fees, Dundas shall provide Licensee with Product Support for a period of one (1) year from the date of purchase of the applicable Software License, which Product Support is already included in the purchase of the subscription Licenses, pursuant to Dundas’ then-current Support Terms. The Support Terms may change from time to time. Any maintenance releases, including bug fixes, and incremental version upgrades to the Gateway Application, new releases or other updates, if any, made available by Dundas pursuant to its Support Terms or any other agreement relating to the Gateway Application, will be governed by the terms of this Agreement. Gateway Application licensed under a Beta License or Evaluation License is not provided with Product Support and with no right to updates. This Section 15 shall not be applicable to Licensee(s) who are to obtain support and maintenance with respect to the Software directly from Resellers (as further outlined in an applicable Reseller agreement).
16. TERMINATION. This Agreement is effective until terminated in accordance with the terms and conditions contained herein (the “Term”). Dundas may terminate this Agreement upon issuance of written notice to Licensee due to: (i) an intellectual property infringement claim relating to the Gateway Application, in the event that Dundas is unable to remedy the infringement by providing a work-around or by obtaining the required license rights; (ii) in accordance with applicable law, including a court order; (iii) Licensee’s breach of any term of this Agreement (including, without limitation, non-payment, when due, of fees payable by Licensee pursuant to this Agreement); or (iv) Licensee’s default under any other agreement entered into between Dundas and Licensee. Licensee may terminate this Agreement for convenience at any time by uninstalling the Gateway Application and returning to Dundas all copies of the Documentation; provided that no such termination shall entitle Licensee to a refund of any License fees or Product Support fees or other amounts paid by Licensee, except as provided for by the terms of this Agreement. Upon termination, Licensee may, upon Dundas request, certify in writing to Dundas that the Gateway Application and all known copies of the Documentation, have been uninstalled, destroyed or returned to Dundas. All provisions relating to confidentiality, Dundas (and its third party licensors and suppliers’) ownership and proprietary rights, limitations of liability, disclaimers of warranties, waivers and governing law shall survive the termination of this Agreement for any reason.
17. LICENSEE INDEMNITY
Licensee shall indemnify, defend, and hold harmless Dundas and its licensors, and each of its and their respective officers, directors, employees, agents, successors, and permitted assigns (each, a "Dundas Indemnitee") from and against any and all claims, demands, liabilities, costs, expenses and losses (“Action”) incurred by such Dundas Indemnitee in connection with any Action by Licensee, Authorized Users or any third party that arise(s) out of or relate(s) to any:
17.1 claims by Licensee, Authorized Users or other third parties to the extent resulting from Licensee breach of the terms of this Agreement
17.2 Licensee Data, including any processing of Licensee Data by or on behalf of Dundas in accordance with this Agreement;
17.3 other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Licensee or any Authorized User, including Dundas's compliance with any specifications or directions provided by or on behalf of Licensee or any Authorized User to the extent prepared without any contribution by Dundas;
17.4 allegation of facts that, if true, would constitute Licensee's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
17.5 gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Licensee, any Authorized User or any third party on behalf of Licensee or any Authorized User, in connection with this Agreement.
Licensee shall bear and be liable for all costs and expenses initiated and incurred by it in fulfilling its responsibilities under this Agreement.
18. LIMITED WARRANTY. The Gateway Application and Documentation are provided "as is". If for any reason Licensee is dissatisfied with the Gateway Application, Licensee may within thirty (30) days after the date of installation of the Gateway Application uninstall the Gateway Application and terminate the Agreement by confirming in writing to Dundas that it has ceased all access and use of the Gateway Application and upon receipt of such confirmation, Dundas shall provide Licensee with a full refund of any prepaid License fees. THIS SHALL CONSTITUTE LICENSEE’S SOLE REMEDY AND DUNDAS’ SOLE OBLIGATION IN RESPECT OF ANY SUCH DISSATISFACTION WITH THE GATEWAY APPLICATION, AND/OR DOCUMENTATION.
DUNDAS DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF THE GATEWAY APPLICATION OR DOCUMENTATION IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, AVAILABILITY, CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE GATEWAY APPLICATION IS ASSUMED BY LICENSEE.
DUNDAS DOES NOT WARRANT THAT THE GATEWAY APPLICATION WILL MEET LICENSEE’S REQUIREMENTS, THAT OPERATION OF THE GATEWAY APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL GATEWAY APPLICATION ERRORS WILL BE CORRECTED. DUNDAS IS NOT RESPONSIBLE FOR PROBLEMS CAUSED BY CHANGES IN THE OPERATING CHARACTERISTICS OF COMPUTER HARDWARE OR COMPUTER OPERATING SYSTEMS WHICH ARE MADE AFTER RELEASE OF THE GATEWAY APPLICATION/ NOR FOR PROBLEMS IN THE INTERACTION OF THE GATEWAY APPLICATION WITH NON-DUNDAS SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY MODIFICATIONS, DERIVATIVE WORKS, ADDITIONAL FUNCTIONALITY OR OTHER CHANGES MADE TO THE GATEWAY APPLICATION. DUNDAS WILL HAVE NO RESPONSIBILITY TO REPLACE OR REFUND THE LICENSE FEE FOR MEDIA DAMAGED BY ACCIDENT, ABUSE OR MISAPPLICATION.
THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF, AND DUNDAS, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DUNDAS, ITS EMPLOYEES, OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES.
Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to Licensee. In that event, any implied warranties or conditions are limited in duration to ninety (90) days from the date of installation of the Gateway Application. This warranty gives Licensee specific legal rights. Licensee may have other rights which vary from state to state and province to province.
19. LIMITATION OF LIABILITY. NEITHER DUNDAS NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE GATEWAY APPLICATION (INCLUDING, WITHOUT LIMITATION, DUNDAS’ LICENSORS AND SUPPLIERS) SHALL BE LIABLE UNDER ANY LEGAL THEORY, WHETHER IN CONTRACT OR TORT OR PRODUCTS LIABILITY OR OTHERWISE, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOSSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES OR LOSSES FOR LOSS OF PROFITS, BUSINESS LOSSES, BUSINESS INTERRUPTION, WORK STOPPAGE, LOSS OF PRODUCTION OR EXPECTED SAVINGS, LOSS OR CORRUPTION OF LICENSEE DATA OR INFORMATION, LOSSES RELATING TO THE GATEWAY APPLICATION FAILING TO PROVIDE ACCURATE DATA OR INFORMATION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF GOODWILL, AND ANY OF THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE GATEWAY APPLICATION, OR ANY OTHER CLAIM BY ANY PARTY EVEN IF DUNDAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT DUNDAS IS LIABLE FOR ANY DAMAGES, DUNDAS' MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT OR PRODUCTS LIABILITY OR OTHERWISE) FOR DAMAGES SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF LICENSE FEES PAID BY LICENSEE FOR THE GATEWAY APPLICATION. IF LICENSEE’S LICENSE WAS OBTAINED FOR FREE AND/OR AT NO CHARGE, LICENSEE COMPLETELY WAIVES AND DISCLAIMS ALL RIGHT TO DAMAGES AND ALL OTHER CLAIMS WHATSOEVER INCLUDING CLAIMS FOR ANY DATA BREACHES IN RESPECT OF THE LICENSEE DATA. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. LICENSEE ACKNOWLEDGES THAT WITHOUT LICENSEE’S AGREEMENT TO THE LIMITATIONS CONTAINED HEREIN, THE FEES CHARGED BY DUNDAS WOULD BE HIGHER.
20. ACKNOWLEDGEMENT. Licensee acknowledges having read and understood this Agreement, and agrees to be bound by its terms and conditions. Licensee agrees that this Agreement, together with the Invoice and Support Terms, as well as any consents provided by Licensee at the time of installation of the Gateway Application, is the complete and exclusive statement of agreement between the parties and supersedes all proposals or prior agreements oral or written, and any other communications between the parties relating to the subject matter of this Agreement. Licensee acknowledges and agrees that Licensee has not relied upon any representations or warranties or statements other than those expressly set forth in this Agreement.
21. AUDIT. During the term of this Agreement and for a period of two (2) years thereafter, Dundas may, at any time during Licensee’s normal business hours and upon reasonable advance notice of not less than five (5) days, conduct an audit at Licensee’s premises to ascertain whether Licensee’s use of the Gateway Application, is in compliance with the provisions of this Agreement. Licensee agrees to reasonably assist Dundas in the conduct of such audit and agrees to grant Dundas reasonable access to Licensee’s premises and computer equipment for that purpose. In the event that such audit reveals any use of the Gateway Application by Licensee other than in material compliance with this Agreement, Licensee shall reimburse Dundas for all reasonable costs and expenses related to such audit 22. U.S. GOVERNMENT RESTRICTED RIGHTS. If the Gateway Application, is installed under the terms of a DoD contract: Use, duplication or disclosure by the Government is subject to restrictions set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013. If this Gateway Application, is installed acquired under the terms of a Civilian agency contract: Use, reproduction or disclosure is subject to subdivisions (a)-(d) of the Commercial Computer Software - Restricted Rights clause at 48 CFR 52.227-19. Unpublished-rights reserved by DUNDAS DATA VISUALIZATION, INC., 250 Ferrand Drive, Suite 500, Toronto, Ontario, Canada, M3C 3G8, the contractor/manufacturer, under the copyright laws of the United States of America.
23. EXPORT CONTROLS. The Gateway Application is subject to applicable export and import laws and regulations. Licensee must comply with all domestic and international export and import laws and regulations that apply to the Gateway Application and Documentation. Licensee represents and warrants that it is not, and is not related to, an individual, company or other Entity that is identified on any designated person list or other similar list of sanctioned or restricted parties established under Canadian Export Controls and Economic Sanctions Laws or any similar list of sanctioned or restricted parties maintained by any other country (“Listed Party”). Licensee further represents and warrants that the Gateway Application and Documentation will not (i) be used by or for the benefit of any Listed Party, (ii) be used for or in any military or weapons-related purposes or activities, or (iii) be used in any facility used for such activities. Any routing, transfer and/or use of the Gateway Application and Documentation contrary to Canadian Export Controls and Economic Sanctions Laws or the laws of any country in which they are being used is prohibited. Upon Dundas’ request, Licensee shall immediately provide all information pertaining to the routing, shipment, transfer, sale and use of the Gateway Application and Documentation. In addition, upon Dundas’ request, Licensee shall immediately provide, in a form specified by Dundas, certification pertaining to Licensee’s compliance with Canadian Export Controls and Economic Sanctions Laws and similar laws of other countries. Licensee shall indemnify and hold harmless Dundas for any fines, penalties, damages, losses, liabilities claims, actions and expenses (including legal fees and reasonable disbursements) of whatsoever kind and nature which at any time may be suffered or incurred by, imposed on or asserted against Dundas in any way relating to or arising out of (i) Licensee’s failure to comply with Canadian Export Controls and Economic Sanctions Laws, its obligations referred to above, or the laws of any country or (ii) an inaccurate warranty, representation, or certification under the clauses provided above or any incorrect information provided by Licensee. For the purposes of the foregoing, “Canadian Export Controls and Economic Sanctions Laws” include the Export and Import Permits Act, the Special Economic Measures Act, the United Nations Act, the Freezing Assets of Corrupt Foreign Officials Act, the Customs Act, and the Criminal Code, and their regulations, and any other Canadian law controlling the import, export or transfer of technology or restricting dealings involving certain persons or countries.
24.HIGH RISK ACTIVITIES: Licensee acknowledges and agrees not to use the Gateway Application in any application or situation where any failure of the Gateway Application could lead directly to death, personal injury, or severe physical or environmental damage. Examples include, but are not limited to, using the Gateway Application for controlling the operation of: (i) equipment in any nuclear facilities; (ii) aircraft navigation, communications or flight control systems; (iii) air traffic control systems; (iv) mass transit systems; (v) medical equipment (but only in equipment with an FDA classification of 2 or 3, or an equivalent classification); or (vi) weapons systems. By virtue of the complex nature of the Gateway Application and its potential uses, it is possible that latent bugs or inoperable features or incompatibilities or errors may affect the validity of data obtained and calculations performed using the Gateway Application. Dundas advises that the Gateway Application is not fault tolerant and is not designed or intended for use in hazardous environments or mission critical applications requiring fail safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life support machines, hazardous materials storage and transmittal systems, waste treatment applications or any other application in which the failure of the Gateway Application could lead directly to death, personal injury, or severe physical or property damage or exposure to material financial loss (collectively, "High Risk Activities"). Dundas expressly disclaims any express or implied warranty or condition of fitness for High Risk Activities. Licensee agrees that use of the Gateway Application in High Risk Activities is at Licensee’s own risk and that Licensee has been advised to obtain suitable perils insurance against risk in an amount commensurate with Licensee’s risk of loss. Licensee hereby indemnifies and holds Dundas and its licensors and suppliers harmless from liability for such use and the results of use. Notwithstanding anything to the contrary herein contained, if after reading this disclaimer and limitation, Licensee does not wish to use the Gateway Application, Licensee may, within thirty (30) days after the date of installation of the Gateway Application, uninstall the Gateway Application/or Documentation and confirm in writing to Dundas that the Gateway Application and/or Documentation has been so destroyed and upon receipt of such confirmation, Dundas shall provide Licensee with a full refund of any prepaid fees.
25.ANTI-CORRUPTION. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
26. THIRD PARTY LICENSORS AND SUPPLIERS. Each party agrees that Dundas’ licensors and suppliers, together with their subsidiaries and affiliates are third party beneficiaries to this Agreement with the right to rely on and enforce its terms to their full extent, notwithstanding that such entities are not parties to this Agreement. The parties further agree not to take any actions that may prevent or otherwise impair any such licensor’s or supplier’s exercise of these rights. In no event shall Dundas’ licensors and suppliers, together with their subsidiaries and affiliates have any liability for any damages, whether direct, indirect, incidental or consequential, as a result of the use or installation of the Gateway Application.
27. INDEPENDENT CONTRACTORS. The parties to this Agreement are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
24. GENERAL. This Agreement enures to the benefit of and is binding upon the parties, and their respective heirs, executors, administrators, legal personal representatives, successors, and duly authorized assigns. Dundas may assign this Agreement without Licensee’s consent. Licensee may not assign this Agreement (whether by operation of law or otherwise) in whole or in part without the prior written consent of Dundas and any attempted assignment without the prior written consent of Dundas is null and void. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and of Canada applicable thereto. This Agreement will not be governed by and the parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods and the provisions of any state Uniform Computer Information Transactions Act or similar federal, provincial or state laws or regulations. Licensee consents to the jurisdiction of the courts of the Province of Ontario as the exclusive jurisdiction for determination of all disputes and claims arising between the parties to this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. If any provision of this Agreement is found to be unlawful, void or unenforceable, then that provision shall be severed from this Agreement and shall not affect the validity and enforceability of any of the remaining provisions. Except for the Invoice, no purchase order or other document that purports to modify or supplement the Agreement will add to or vary the terms of the Agreement, and all proposed variations or additions are deemed material and objected to, even if such purchase order or other document purports to supersede the terms of this Agreement. Dundas reserves the right to amend this Agreement from time to time. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. The parties have agreed that this Agreement be drafted in English. Les parties ont convenu à ce que ce Contrat soit rédigé en anglais.
25. DUNDAS CUSTOMER CONTACT. Licensee may contact DUNDAS by writing to: DUNDAS DATA VISUALIZATION, INC., 250 Ferrand Drive, Suite 500, Toronto, Ontario, Canada, M3C 3G8. For further information Licensee is referred to www.dundas.com.