TERMS AND CONDITIONS FOR SOFTWARE PROGRAMS AND EMBEDDED SOFTWARE IN PRODUCTS
All products which consist of or include software (including operating software for hardware supplied by Supplier and software in object code format that is embedded in any hardware) and/or any documentation shall be subject to the End User License Agreement (“EULA”) attached hereto as Exhibit A. Buyer shall be deemed to have agreed to be bound by all of the terms, conditions and obligations therein and shall ensure that all subsequent purchasers and licensees of such products shall be further bound by all of the terms, conditions and obligations therein. For software and/or documentation delivered in connection with these Terms and Conditions, that is not produced by Supplier and which is separately licensed by a third party, Buyer’s rights and responsibilities with respect to such software or documentation shall be governed in accordance with such third party’s applicable software license. Buyer shall, on request, enter into one or more separate “click-accept” license agreements or third party license agreements in respect thereto. Supplier shall have no further obligations with respect to such products beyond delivery thereof. Where Buyer is approved by Supplier to resell products, Buyer shall provide a copy of the EULA and applicable third party license agreements to each end user with delivery of such products and prior to installation of any software. Buyer shall notify Supplier promptly of any breach or suspected breach of the EULA or third party license agreements and shall assist Supplier in efforts to preserve Supplier’s or its supplier’s intellectual property rights including pursuing an action against any breaching third parties. For purposes of these terms and conditions: “software” shall mean scripts, programs, macros, computer programs, application programming and other interfaces, tools and other instructions and sets of instructions for hardware to follow, including SQL and other query languages, hypertext markup language (“html”) and other computer mark-up languages; “hardware” shall mean mainframes, personal computers, servers, client/server stations, network equipment, routers, semi-conductor chips, communication lines and other equipment; and “documentation” shall mean documentation supplied by Supplier relating to the development, use, installation, implementation, integration, configuration, operation, modification, maintenance or support of any software.
Buyer shall not alter, obscure, remove, cancel or otherwise interfere with any markings (including without limitation any trademarks, logos, trade names, or labelling applied by Supplier). Buyer acknowledges that Supplier is the sole owner of the trademarks used in association with the products and that Buyer has no right, title or interest whatsoever in such trademarks and any goodwill associated therewith and that all goodwill associated with such trademarks is owned by and shall enure exclusively to and for the benefit of Supplier. Further, Buyer shall not represent in any manner that it has acquired any ownership rights in such trademarks or other intellectual property of Supplier. Supplier will defend any claim against Buyer that any iS5Com branded product supplied under these Terms and Conditions infringes third party patents or copyrights (a “Patent Claim”) and will indemnify Buyer against the final judgment entered by a court of competent jurisdiction or any settlements arising out of a Patent Claim, provided that Buyer: (1) promptly notifies Supplier in writing of the Patent Claim; and (2) cooperates with Supplier in the defence of the Patent Claim, and grants Supplier full and exclusive control of the defence and settlement of the Patent Claim and any subsequent appeal. If a Patent Claim is made or appears likely, Buyer agrees to permit Supplier to procure for Buyer the right to continue using the affected product, or to replace or modify the product with one that is at least functionally equivalent. If Supplier determines that none of those alternatives is reasonably available, then Buyer will return the product and Supplier will refund Buyer’s remaining net book value of the product calculated according to generally accepted accounting principles. Supplier has no obligation for any Patent Claim related to: (1) compliance with any designs, specifications, or instructions provided by Buyer or a third party on Buyer’s behalf; (2) modification of a product by Buyer or a third party; (3) the amount or duration of use which Buyer makes of the product, revenue earned by Buyer from services it provides that use the product, or services offered by Buyer to external or internal Buyers; (4) combination, operation or use of a product with non-Supplier products, software or business processes; or (5) use of any product in any country other than the country or countries specifically authorized by Supplier.
IMPORTANT – READ CAREFULLY: iS5 Communications Inc. (“iS5Com”) licenses the iS5Com Materials (as defined below) subject to the terms and conditions of this end user license agreement (the “EULA”). BY SELECTING “ACCEPT” OR OTHERWISE EXPRESSLY AGREEING TO THIS EULA, BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, OR BY USING THE HARDWARE (AS DEFINED BELOW), ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS EULA BECOME LEGALLY BINDING ON THE CUSTOMER.This End User License Agreement (the “EULA”) supplements the Terms and Conditions or such other terms and conditions between iS5Com or, if applicable, a reseller for iS5Com, and the Customer (as defined below) (in either case, the “Contract”).
“Confidential Information” means all data and information relating to the business and management of iS5Com, including iS5Com Materials, trade secrets, technology and records to which access is obtained hereunder by the Customer, and any materials provided by iS5Com to the Customer, but does not include any data or information which: (a) is or becomes publicly available through no fault of the Customer; (b) is already in the rightful possession of the Customer prior to its receipt from iS5Com; (c) is already known to the Customer at the time of its disclosure to the Customer by iS5Com and is not the subject of an obligation of confidence of any kind; (d) is independently developed by the Customer; (e) is rightfully obtained by the Customer from a third party; (e) is disclosed with the written consent of iS5Com; or (f) is disclosed pursuant to court order or other legal compulsion.
The iS5Com hereby grants to the Customer, subject to any Third Party License Terms, a non-exclusive, non-transferable, non-sublicensable right and licence to use iS5Com Materials solely in object code format, solely for the Customer’s own business purposes, solely in accordance with this EULA (including, for greater certainty, subject to Section 6.1 of this EULA) and the applicable iS5Com Documentation, and, in the case of iS5Com Firmware, solely on iS5Com Hardware on which iS5Com Firmware was installed, provided that Customer may only install iS5Com Software on such number of nodes expressly set out in the Contract.
Except as otherwise provided in Section 2.1 above, the Customer shall not: (a) copy iS5Com Materials for any purpose, except for the sole purpose of making an archival or back-up copy; (b) modify, translate or adapt the iS5Com Materials, or create derivative works based upon all or part of such iS5Com Materials; (c) assign, transfer, loan, lease, distribute, export, transmit, or sublicense iS5Com Materials to any other party; (d) use iS5Com Materials for service bureau, rent, timeshare or similar purposes; (e) decompile, disassemble, decrypt, extract, or otherwise reverse engineer, as applicable, iS5Com Software or iS5Com Hardware; (f) use iS5Com Materials in a manner that uses or discloses the Confidential Information of iS5Com or a third party without the authorization of such person; (g) permit third parties to use iS5Com Materials in any way that would constitute breach of this EULA; or (h) otherwise use iS5Com Materials except as expressly authorized herein.
The license granted hereunder shall apply to the latest version of iS5Com Materials provided to the Customer as of the effective date of this EULA, and shall apply to any Updates and Upgrades subsequently provided to the Customer by iS5Com pursuant to the terms of this EULA. Customer shall only be provided with Updates and/or Upgrades if expressly set out in the Contract.
In the event any Update or Upgrade includes an amended version of this EULA, Customer will be required to agree to such amended version in order to use the applicable iS5Com Materials and such amended EULA shall be deemed to amend the previously effective version of the EULA.
Customer shall comply with any Third Party License Terms.
Notwithstanding any other provision of the Contract, iS5Com and the Customer agree that iS5Com is and shall be the owner of all Intellectual Property Rights in iS5Com Materials and all related modifications, enhancements, improvements and upgrades thereto, and that no proprietary interests or title in or to the intellectual property in iS5Com Materials is transferred to the Customer by this EULA. iS5Com reserves all rights not expressly granted to the Customer under Section 2.1.
iS5Com and the Customer agree that any and all iS5Com Firmware in or forming a part of iS5Com Hardware is being licensed and not sold, and that the words “purchase,” “sell” or similar or derivative words are understood and agreed to mean “license,” and that the word “Customer” as used herein are understood and agreed to mean “licensee,” in each case in connection with iS5Com Firmware.
Certain of iS5Com Software provided by iS5Com may be Third Party Software owned by one or more third parties and sublicensed to the Customer. Such third parties retain ownership of and title to such Third Party Software, and may directly enforce the Customer’s obligations hereunder in order to protect their respective interests in such Third Party Software.
The Customer acknowledges that iS5Com Materials contain Confidential Information of iS5Com and that disclosure of such Confidential Information to any third party could cause great loss to iS5Com. The Customer agrees to limit access to iS5Com Materials to those employees or officers of the Customer who require access to use iS5Com Materials as permitted by the Contract and this EULA and shall ensure that such employees or officers keep the Confidential Information confidential and do not use it otherwise than in accordance with the Contract and this EULA. The obligations set out in this Section 4 shall continue notwithstanding the termination of the Contract or this EULA and shall only cease to apply with respect to such part of the Confidential Information as is in, or passes into, the public domain (other than in connection with the Customer’s breach of this EULA) or as the Customer can demonstrate was disclosed to it by a third person who did not obtain such information directly or indirectly from iS5Com.
Without limiting any other rights or remedies available to iS5Com in law or in equity, the Customer acknowledges and agrees that the breach by Customer of any of the provisions of this EULA would cause serious and irreparable harm to iS5Com which could not adequately be compensated for in damages and, in the event of a breach by the Customer of any of such provisions, the Customer hereby consents to an injunction against it restraining it from any further breach of such provisions.
Any usernames, passwords and/or license keys (“Credentials”) provided to you by iS5Com shall be maintained by the Customer and its representatives in strict confidence and shall not be communicated to or used by any other persons. THE CUSTOMER SHALL BE RESPONSIBLE FOR ALL USE OF CREDENTIALS, REGARDLESS OF THE IDENTITY OF THE PERSON(S) MAKING SUCH USE, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IS5COM SHALL HAVE NO RESPONSIBILITY OR LIABILITY IN CONNECTION WITH ANY UNAUTHORIZED USE OF CREDENTIALS.
EXCEPT FOR THE EXPRESS WARRANTIES MADE BY IS5COM IN THE CONTRACT, (A) IS5COM MAKES NO AND HEREBY EXPRESSLY DISCLAIMS, AND THE PARTIES HERETO HEREBY EXPRESSLY WAIVE AND EXCLUDE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, AND THE CUSTOMER AGREES NOT TO SEEK OR CLAIM ANY BENEFIT THEREOF, IN EACH CASE, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS OR INDUCEMENTS (AND THERE ARE NO OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR INDUCEMENTS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OF ANY KIND WHATSOEVER SET OUT HEREIN) WITH RESPECT TO THE IS5COM MATERIALS, INCLUDING AS TO THEIR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, DESIGN OR CONDITION, COMPLIANCE WITH THE REQUIREMENTS OF ANY APPLICABLE LAWS, CONTRACT OR SPECIFICATION, NON- INFRINGEMENT OF THE RIGHTS OF OTHERS, ABSENCE OF LATENT DEFECTS, OR AS TO THE ABILITY OF THE IS5COM MATERIALS TO MEET CUSTOMER’S REQUIREMENTS OR TO OPERATE OF ERROR FREE; AND (B) THE IS5COM MATERIALS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND.
EXCEPT AS EXPRESSLY PROVIDED IN THE CONTRACT, IN NO EVENT SHALL IS5COM BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS EULA EVEN IF ADVISE OF THE POSSIBILITY THEREOF. THIS LIMITATION SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR CLAIM, INCLUDING BREACH OF CONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY, AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES AND/OR FAILURE OF THE ESSENTIAL PURPOSE OF THIS EULA.
Customer’s right to use iS5Com Materials shall terminate at such time as set out in the Contract or upon termination or expiration of the Contract, in each case at which time this EULA shall be deemed to terminate.
Each of Sections 1, 2.4, 3, 4, 5, 6.2, and 7 shall survive termination of the EULA.
This EULA is (together with, as applicable, any click-wrap license agreement or Third Party License Terms pertaining to the use of iS5Com Materials) the entire agreement between the Customer and iS5Com pertaining to the Customer’s right to access and use iS5Com Materials, and supersedes all prior or collateral oral or written representations or agreements related thereto. Notwithstanding anything to the contrary contained in the Contract, to the extent of any inconsistency between this EULA and the Contract, or any such applicable click-wrap agreement, this EULA shall take precedence over the Contract and such click- wrap agreement. In the event that one or more of the provisions is found to be illegal or unenforceable, this EULA shall not be rendered inoperative but the remaining provisions shall continue in full force and effect. The parties expressly disclaim the application of the United Nations Convention for the International Sale of Goods. This EULA shall be governed by the laws of the Province of Ontario, Canada, and federal laws of Canada applicable therein. In giving effect to this EULA, neither party will be or be deemed an agent of the other for any purpose and their relationship in law to the other will be that of independent contractors. Any waiver of any terms or conditions of this EULA: (a) will be effective only if in writing and signed by the party granting such waiver, and (b) shall be effective only in the specific instance and for the specific purpose for which it has been given and shall not be deemed or constitute a waiver of any other provisions (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. The failure of either party to exercise, and any delay in exercising, any of its rights hereunder, in whole or in part, shall not constitute or be deemed a waiver or forfeiture of such rights, neither in the specific instance nor on a continuing basis. No single or partial exercise of any such right shall preclude any other or further exercise of such right or the exercise of any other right. Customer shall not assign or transfer this EULA or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of iS5Com. The division of this EULA into sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this EULA. References herein to Sections are to sections of this Agreement. Where the word “include”, “includes” or “including” is used in this EULA, it means “include”, “includes” or “including”, in each case, “without limitation”. All remedies provided for iS5Com under this EULA are non-exclusive and are in addition, and without prejudice, to any other rights as may be available to of iS5Com, whether in law or equity. By electing to pursue a remedy, of iS5Com does not waive its right to pursue any other available remedies. The parties acknowledge that they have required this Agreement to be written in English. Les parties aux présentes reconnaissent qu’elles ont exigé que la présente entente soit rédigée en anglais.
Terms and Conditions are subject to change. For the latest information please visit: https://is5com.com/terms-and-conditions/