The following general terms and conditions will apply to all orders for “IGUANA Products” and related “Services” specified in the “Commercial Documentation” (defined below) to which these general terms and conditions are appended.
Unless otherwise expressly agreed in writing by iFW as part of the Commercial Documentation, the terms and conditions in any Licensee purchase order or similar document which conflict with or are inconsistent with any of these General Terms and Conditions shall be of no effect and these General Terms and Conditions shall prevail at all times.
DEFINITIONS: For the purposes of the Agreement, the following words and phrases shall have the attached meanings or inclusions:
(i) “Commercial Documentation” may include the Commercial Terms specified in any form of legally binding “Agreement” which expressly attaches these General Terms and Conditions by reference or incorporation, or any mutually accepted Quote, Licensee Purchase Order (or similar purpose document), Statement of Work (or similar purpose document) and/or any subsequent Purchase Order or Statement of Work that has been acknowledged and accepted by both Parties in writing and which references the applicable Agreement;
(ii) “IGUANA Products” or “IGUANA” means only the executable, object code versions of the iFW proprietary software product(s) specified in the Commercial Documentation, together with applicable published operating instructions and related training and reference materials;
(iii) “iFW Services” means the IGUANA Product Support and Maintenance and/or any other iFW Training or Professional Services specified in the Commercial Documentation;
(iv) “Licensee” means the specified end user party to which the IGUANA Products are supplied and licensed under the Commercial Documentation; and
(v) “Statement of Work” or “SOW” means a written document which specifies (i) certain Professional Services and “Service Deliverables” to be performed and supplied by iFW in connection with the IGUANA Products; and (ii) the milestones, financial terms and conditions, proprietary rights and other business terms relating specifically to those Professional Services and Service Deliverables.
GRANT OF RIGHTS LIMITATIONS: The grant of license rights by iFW to Licensee as set out in the Commercial Documentation is further restricted to the CONDITIONS OF USE specified immediately below.
CONDITIONS OF USE: Licensee will: (i) only use the IGUANA Products and Service Deliverables for the period of time specified in the Commercial Documentation; (ii) only use the number of IGUANA Product copies specified in the Commercial Documentation, if applicable; (iii) make only as many further copies of the IGUANA Products as are reasonably necessary for archival or backup purposes; (iv) not use the IGUANA Products or Service Deliverables in any way that is not in strict compliance with all applicable regulatory and legislative controls and standards, or in accordance with the terms of the Agreement; (v) not modify, reverse engineer, produce or enable the production of any work derived from the IGUANA Products, or attempt to defeat the mechanisms that control the number of Licensee copies of the IGUANA Products; and (vi) maintain the IGUANA Products, and Service Deliverables, where applicable, in accordance with the Confidentiality Terms and Conditions set out below. In addition to any other rights that iFW may have in law or equity, iFW shall have the right to terminate and revoke the licensed rights immediately without refund to Licensee if Licensee breaches any of its obligations under this Paragraph.
OWNERSHIP OF IGUANA PRODUCTS: Except for the rights granted herein and as between iFW and Licensee, iFW is and will remain the owner of all right, title and interest in and to the IGUANA Products and any IGUANA Product derivative works howsoever made, and all intellectual property rights, whether in patent, copyright, trade secret, trademark or otherwise which are related to, or incorporated into them.
OWNERSHIP OF SERVICE DELIVERABLES: As between iFW and Licensee, unless otherwise specified in an applicable Statement of Work iFW will at all times be the owner of (i) all intellectual property rights, whether in patent, copyright, trade secret, trademark or otherwise, in all materials or other resources made available to Licensee in order for iFW to fulfill its Services, (ii) all iFW referenced confidential information, (iii) all Service Deliverables and (iv) all discoveries, ideas, inventions and know- how developed or reduced to practice by Licensee or by iFW in the course of supplying its Services (collectively, the “Service Proprietary Rights and Information”). Notwithstanding iFW‘s ownership, all applicable Service Deliverables that have been fully paid for and accepted by Licensee shall be made a part of the licensed IGUANA Products for all purposes hereunder. For greater certainty, Service Proprietary Rights and Information shall encompass all of iFW’s tools, protocols, processes or other resources used by it in the course of supplying its Services.
LICENSEE RESPONSIBILITES: In addition to any other responsibilities set forth in the Commercial Documentation, Licensee is solely responsible for (i) providing and ensuring a proper, secure environment in which any and all IGUANA Products and Service Deliverables will operate; (ii) all system administration related tasks including, but not limited to, network connectivity issues and logging problems/error; and (iii) production readiness and the user acceptance testing of any and all IGUANA Products and Service Deliverables. Licensee will be deemed to have accepted the IGUANA Products and Service Deliverables on delivery.
iFW LIMITED PRODUCT WARRANTY: iFW does not warrant that the operation of the IGUANA Products or Service Deliverables will be uninterrupted or error free during the Term of this Agreement. iFW does warrant that, for a period of three months from the date of delivery to Licensee, each IGUANA Product or Service Deliverable, as applicable, will conform in all material respects to its specifications in the published operating instructions accepted by Licensee under the Agreement. Licensee's only remedies under this product warranty will be iFW’s reasonable commercial efforts to correct defects without charge to Licensee, failing which iFW will refund all monies previously paid by Licensee for the applicable IGUANA Products or Service Deliverables. Except for the express warranties stated above, or as otherwise expressly stated in the Commercial Documentation, iFW disclaims all other implied and express product warranties with respect to the IGUANA Products or Service Deliverables, including, without limitation, warranties as to merchantability and/or fitness for a particular purpose.
iFW LIMITED IP WARRANTY: iFW warrants that to the best of its actual knowledge after making commercially reasonable inquiries, no IGUANA Product or Service Deliverable infringes the intellectual or other property rights of any third party. iFW’s sole obligations and liabilities, and Licensee's only remedies under this warranty shall be, at iFW’s option, to modify any infringing IGUANA product so as to make it non-infringing, or to acquire from a third party infringement claimant, at iFW’s expense, all such rights as are necessary to grant to Licensee the licenses specified in the Commercial Documentation free and clear of the specific infringement claims and actions. In the event that neither option is available to iFW, iFW will refund all monies previously paid to iFW by Licensee for the applicable IGUANA Products or Service Deliverables.
LICENSEE WARRANTIES: Licensee represents and warrants that (i) it is a legally constituted entity in good standing with the all of the rights, power and authority to enter into this legally binding Agreement; (ii) it will not use or permit the use of the IGUANA Products or Service Deliverables any way whatsoever that is not in accordance with the terms of this Agreement, the applications and use specified in any iFW approved IGUANA Product specifications, materials or literature, and all applicable laws and regulations of applicable legislative and regulatory bodies.
INDEMNITIES AND LIMITATIONS OF LIABILITY: Subject to any other limitations specified in these General Terms and Conditions or the Commercial Documentation, each Party shall indemnify, defend and hold harmless the other Party, its respective shareholders, Directors, Officers, employees, agents and contractors and their successors, affiliates, and permitted assignees (collectively, the “Indemnitees”) from any claims, losses, liabilities, damages or expenses arising out of or in connection with the indemnifying Party’s failure to fully and properly fulfill its obligations and responsibilities under this Agreement, or arising out of or in connection with a breach of any of the indemnifying Party’s representations, warranties and/or covenants to or with the other Party under this Agreement. The foregoing indemnifications by Licensee shall extend to any claims or actions made by any of its individual customers or patients as applicable. These indemnities and the liabilities of one Party to the other shall not extend to any special or consequential damages, lost profits or other similar economic loss except where such damages or losses arise or result from a breach by the indemnifying Party of its obligations with respect to the other Party’s intellectual property or confidential information, or as a result of the indemnifying Party’s negligence.
TERMINATION: In addition to any other termination rights that may be specified elsewhere in this Agreement, this Agreement may be terminated immediately by either Party if the other Party: (i) materially breaches any term or condition of the Agreement and such breach is not cured within thirty (30) days of receipt of written notice of such breach, except for a breach of confidentiality or an infringement of intellectual property rights in which case no cure period shall apply; or (ii) becomes insolvent or voluntarily bankrupt or an involuntary petition in bankruptcy against the Party in breach is not dismissed within ninety (90) calendar days of filing; or (iii) if a receiver, assignee or other liquidating officer is appointed for all or substantially all of the other Party’s business; or (iv) if the other Party makes an assignment for the benefit of creditors. The terms and limitations, exclusions and warranties contained in this Agreement that, by their sense and context are intended to survive the performance thereof by either or both Parties hereunder shall so survive the completion of performance and the termination of license(s) granted hereunder, or the Term set out in the Commercial Documentation.
GENERAL: The terms and conditions set out in these General Terms and Conditions or the Commercial Documentation shall be binding upon and enure to the benefit of the Parties and their respective successors, permitted assignees, heirs and personal representatives, Neither Party shall be the legal agent of the other for any purpose. Unless otherwise specified in the Commercial Documentation, the construction, validity and performance of the Agreement of which these General Terms and Conditions are a part will be governed by the laws of the Province of Ontario, Canada or Canadian federal laws as applicable except with respect to the protection of intellectual property rights such as patents granted or issued by another jurisdiction that do not have an applicable reciprocal enforcement treaty with the United States or Canada in which case the laws of the granting or issuing jurisdiction will
apply. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction and venue of the courts located in Toronto, Ontario Canada and the parties hereby consent to such jurisdiction and venue. Both Parties agree that they shall at all times respect all embargoes, trade sanctions, and export restrictions imposed by or adhered to by the jurisdictions in which they were incorporated, in which they reside, or within which they do business.
CONFIDENTIALITY TERMS AND CONDITIONS
The following Confidentiality Terms and Conditions shall apply to and be made part of this Agreement unless a prior, applicable confidentiality and non-disclosure Agreement between the Parties to this Agreement is in full force and effect, in which case that prior agreement is hereby incorporated into the Agreement by reference.
INCLUSIONS: “Confidential Information” includes any and all forms of scientific, technological, business, financial, marketing communications and data and any materials or products that are based on or embody such data. Unless the sensitivity and confidentiality of the Confidential Information is clearly evident in the circumstances: (i) if it is disclosed in writing or other tangible form, it shall be conspicuously labelled as proprietary and confidential at the time of delivery; and (ii) if it is disclosed orally or by observation or viewing, it shall be identified as proprietary and confidential prior to or at the time of disclosure and within thirty (30) business days after disclosure shall be confirmed in writing as such by the Disclosing Party. “Confidential Information” also extends to any and all protected/personal health information ("PHI") that is held or accessed by either Party which such Party is required to safeguard and protect in accordance with all applicable privacy laws, rules, and regulations, including, by way of examples, in the United States, the Health Insurance Portability and Accountability Act (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (the “HITECH” Act) and, in Canada, the Personal Information Protection and Electronic Documents Act (“PIPEDA”) or any successor legislation or regulation in those countries, or similar legislation or regulation of any other applicable jurisdiction.
EXCLUSIONS: Confidential Information will not include (i) information that is generally available to the public through no fault of the Receiving Party; or (ii) information that was already in the possession of the Receiving Party prior to any disclosure hereunder, as evidenced by appropriate documentation; or (iii) information that is or has been lawfully disclosed to the Receiving Party by a third party who or which does not have an obligation of confidentiality to the Disclosing Party; or (iv) information that can be shown to have been developed independently by the Receiving Party without use of Confidential Information disclosed hereunder, as evidenced by appropriate documentation.
TERM AND DURATION: These terms and conditions shall cover disclosure of any Confidential Information during the Term of the Agreement to which these Terms and Conditions are attached. Notwithstanding any such Term or termination of the Agreement, Confidential Information disclosed while the Agreement is in force and effect shall be safeguarded by the Receiving Party for a period of five (5) years from the date of disclosure and with the same degree of care with which it treats its own Confidential Information, or at least at the standard of care common and acceptable to the industry in which the Receiving Party is engaged. The Receiving Party warrants that it applies commercially reasonable safeguards against the unauthorized disclosure and use of all Confidential Information.
GENERAL RESTRICTIONS ON USE: The Receiving Party agrees that any Confidential Information of the other Party disclosed to it under the Agreement (i) shall be used by the Receiving Party solely for the purposes specified in the Commercial Documentation; (ii) shall not be used to make, use, sell, patent or otherwise attempt to protect any technology, product or business that is competitive with the technology, products or business of the Disclosing Party; and (iii) if the Confidential Information is embodied in products or technologies, the products or technologies will not be disassembled or reverse engineered.
RESTRICTIONS ON USE OF PROTECTED HEALTH INFORMATION (PHI): If PHI which is held or accessed by one of the Parties requires access by the other Party in order for that Receiving Party to fulfill its lawful obligations under this Agreement, the Receiving Party will use that PHI strictly and only in accordance with all applicable laws, rules and regulations referenced in the INCLUSIONS section above and will cooperate with the Disclosing Party in any manner necessary to enable the Disclosing Party to fulfill its responsibilities and obligations under those laws, rules and regulations.
RESTRICTIONS ON DISCLOSURE: the Receiving Party will restrict transmission or disclosure of the Disclosing Party’s Confidential Information to those of its directors, officers, employees or agents (“Representatives”) who need to know the Confidential Information specifically for the purposes of the Agreement; it being confirmed by the Receiving Party that such Representatives are generally, or will be placed under written obligations of confidentiality and use which are at least as restrictive as those contained in this Agreement. The Receiving Party further agrees to enforce such obligations on behalf of the Disclosing Party as directed by the Disclosing Party.
NON-SOLICITATION: In addition to the foregoing obligations, neither Party shall use Confidential Information pertaining to the Representatives of the other Party, or introductions to such Representatives gained as a consequence of fulfilling the purposes
of the Agreement, to directly or indirectly solicit for employment or engagement any such Representative of the other Party in a manner that is against the interests of the other Party.
LAWFUL DISCLOSURE: In the event the Receiving Party is required by judicial or administrative process to disclose Confidential Information of the Disclosing Party, the Receiving Party will promptly notify the Disclosing Party and permit adequate time to seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, or the other Party waives compliance with the provisions of this Agreement the Receiving Party will only furnish that portion of the Confidential Information that is legally demanded.
NO WARRANTIES: The Receiving Party acknowledges that, unless otherwise agreed under any subsequent agreement between the Parties, all Confidential Information of the other Party disclosed to it will be delivered on a “where is, as is” basis without warranties as to accuracy or completeness.
NO LICENSE: The Party’s agree that, as between them, all rights, title and interest in and to the Confidential Information of the other Party is and shall remain the property of the other Party. Except as expressly provided herein, no licence, rights or claims of any kind whatsoever, whether in law or equity is granted by either Party to the other Party, including but not limited to any right, license or claim under any patent, trademark, copyright or trade secret.
INJUNCTIVE RELIEF: Both Parties confirm that unauthorized disclosure or use by a Receiving Party of Confidential Information of the Disclosing Party may cause irreparable harm to the Disclosing Party and may result in significant damages that cannot be accurately calculated in monetary form. In addition to any remedies that may be available at law, in equity or otherwise, the Receiving Party agrees that the Disclosing Party shall be entitled to seek injunctive relief enjoining the Receiving Party and its Representatives from engaging in any of the activities or practices which may constitute a breach or threatened breach of the Agreement.
RETURN OF CONFIDENTIAL INFORMATION: Upon any termination of the Agreement and/or at the written request and instruction of the Disclosing Party, all Confidential Information in the possession of the Receiving Party or its Representatives shall be returned to the Disclosing Party and the Receiving Party will not retain samples, copies, extracts, electronic data storage or other reproductions in whole or in part of such materials, except for one archival copy. All documents, memoranda, notes and other writings based on such Confidential Information shall be destroyed or otherwise rendered unusable.