SOFTWARE TERMS AND CONDITIONS
IMPORTANT: PLEASE READ THE FOLLOWING TERMS AND CONDITIONS RELATING TO THE USE BY YOU, THE REGISTRANT WHO ACCEPTS THESE TERMS AND CONDITIONS ("YOU"), OF THE SOFTWARE AND MATERIALS INSTALLED WITH THIS INSTALLATION PROGRAM OR FOR WHICH A REGISTRATION KEY IS BEING OR HAS BEEN PURCHASED OR LAWFULLY OBTAINED FROM iNTERFACEWARE INC. ("iNTERFACEWARE"), AS WELL AS ANY OTHER ACCOMPANYING WRITTEN MATERIALS, (COLLECTIVELY, THE "SOFTWARE") CAREFULLY BEFORE USING THE SOFTWARE. YOUR USE OF THE SOFTWARE IS CONDITIONAL UPON YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW (THIS "AGREEMENT"). BY USING THE SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
YOU ACKNOWLEDGE THAT YOU REPRESENT A COMMERCIAL ENTITY AND THAT THE SOFTWARE IS NOT INTENDED FOR, OR TO BE USED BY, CONSUMERS.
If you are a Production User, then you further acknowledge and agree that the Integrated Application may only be used on a single computer and that it must not be installed on another computer, unless You first obtain an additional license from iNTERFACEWARE for each such additional computer. You also acknowledge and agree that the Integrated Application shall not be accessed or used by anyone other than You, Your sub-distributor or the applicable End User. If you are a Production User, You may use the Integrated Application on Your own computer on behalf of Your End User, provided that in such case the End User cannot also use the Integrated Application on its own computer. An upgrade version of the Integrated Application and the Integrated Application that is upgraded, constitute a single product and may not be used by two different users at the same time.
IMPORTANT!!! In order to become a Production User it is first necessary for You to become a licensed Development User by purchasing a separate development registration key to create the Application which will form the basis of the Integrated Application. If You ever cease to be a Development User, and if You or Your sub-distributors have distributed any Integrated Applications prior to such time, then each of Your End Users must purchase their own separate development registration keys at the then current rates in order to maintain the validity of their sub-licenses. YOU ARE RESPONSIBLE FOR ADVISING YOUR SUB-DISTRIBUTORS AND END USERS OF THIS LIMITATION.
Subject to the terms and conditions contained in this Agreement, You are granted a revocable, limited, non-exclusive, non-transferable license to use the Software only for the Purpose. iNTERFACEWARE and its Affiliates are free to enter into similar licenses with Your competitors. For the purpose of this Agreement, the term "Affiliates" means any company in which iNTERFACEWARE has, either directly or indirectly, a controlling interest.
You are not permitted to assign this Agreement and any purported assignment by You shall be null and void and of no force or effect. Without limiting the generality of the foregoing, You may not use the Software for any other form of use except the Purpose and you may not rent, lease, loan, or otherwise distribute the Software.
None of the Software is being sold. Except for those non-exclusive licenses granted by iNTERFACEWARE to You in this Agreement, all ownership, license, intellectual property, and other rights and interests in, and to, the Software shall remain solely with Licensor.
You will not, directly or indirectly, do any of the following: (i) transfer, assign, resell, sublicense, use, copy, distribute or modify the Software, in whole or in part; (ii) disassemble, reverse assemble or otherwise reverse engineer the Software or attempt to reveal any trade secret or confidential information concerning its operation; (iii) use the Software to design, develop or market a competing product or service; (iv) use the Software for any illegal purpose; and (v) remove or alter any of the copyright notices or other proprietary markings on any copies of the Software. You will comply fully with all relevant export laws and regulations of Canada and the United States ("Export Laws") to ensure that the Software is not exported, directly or indirectly, in violation of the Export Laws, or is intended to be used for any purposes prohibited by the Export Laws.
You agree not to exceed the defined number of Iguana Channels or Chameleon Instances licensed to you as part of your Development, Production, and/or Trial version of the Software. Each licensed copy of the Software is distributed with a defined number of Iguana Channels and/or single purpose instances of the Chameleon Engine Objects. This number may vary depending on the particular license configuration licensed to you by iNTERFACEWARE. For example, the license purchased by you may allow for up to 5 concurrently running Iguana channels and/or single purpose instances of the Chameleon Engine Objects. Except for Chameleon instances associated with the generation of ACK/NACK messages (which are not counted as part of the five-instance limitation) each Iguana channel or Chameleon instance is limited to the transfer of data from a single, originating Data Source to a single Target Destination. For example, one channel may allow for a single TCP/IP connection that enables the transmission of ADT data from one information system to one LLP listener component. Multiple connections or multiple sending data sources each require their own Channel or Engine Instance, as do multiple receiving connections or multiple target destinations. You may purchase additional Iguana Channels and/or Chameleon Engine instances as needed.
You agree not to sub-license or otherwise distribute the Integrated Application except pursuant to a written agreement that will contain at least the following contractual restrictions and requirements of the sub-distributor or End User, as the case may be:
iNTERFACEWARE may, at its discretion and from time to time, audit Your records and computer systems to ensure that You have complied with Your obligations to iNTERFACEWARE under this Agreement. Without limiting the generality of the foregoing, if You are a Development or Production User then You and Your sub-distributors must maintain adequate records of Your activities in connection with this Agreement. Such records shall include, without limitation, executed sub-license agreements and sub-distribution agreements, the number of copies of the Software licensed and/or sub-licensed by You and Your sub-distributors, and an accurate description of where each such license has been deployed. Upon written request and after reasonable notice, but not more than once per twelve-month period, You must permit a representative selected by iNTERFACEWARE to audit such records to determine compliance with the terms of the Agreement. Such audits will be conducted during normal business hours and will not interfere unreasonably with Your business activities.
iNTERFACEWARE may, at its discretion, activate certain 'call-back' or 'call-home' features in the Software to help ensure that only properly licensed copies of the Software have been distributed and deployed by You and that Your use of the Software is in compliance with the Terms and Conditions of this Agreement. You agree that iNTERFACEWARE may include minimal information such as machine IDs, registration codes, channel usage and other diagnostic information NOT related to any End-user data processed by or otherwise routed through the Software. At no time will iNTERFACEWARE disclose any such information to any third party unless required to do so by law.
The Licenses granted under this Agreement are conditional upon You first making complete payment to iNTERFACEWARE of all licenses fees and other amounts due to iNTERFACEWARE, including all applicable taxes, as invoiced by iNTERFACEWARE.
The use of the Software requires that You first obtain a registration code from iNTERFACEWARE. If You are a Development User or a Production User, You will first have to pay to iNTERFACEWARE, and iNTERFACEWARE will have to have received, the invoiced amount for the registration code before the code will be sent to You to unlock the Software.
No Maintenance or Technical Support
iNTERFACEWARE is under no obligation to provide any maintenance, technical support or updates to You, although it may decide to do so if you purchase the annual maintenance and support program set out in Exhibit A to this Agreement. Any updates provided to You under this Agreement will be part of the Software and will be subject to the same terms and restrictions applicable to the Software. iNTERFACEWARE also has no obligation to make the Software commercially available, or to provide You with any runtime licenses for the Software merely because of Your use of the Software.
If You purchase maintenance and support, You must first make complete payment to iNTERFACEWARE of all annual maintenance and support fees and other amounts due to iNTERFACEWARE, including all applicable taxes, as invoiced by iNTERFACEWARE before You can receive the annual maintenance and support services.
If Your annual maintenance and support services lapses and You would like to reinstate it, You must pay all previous unpaid maintenance and support services at the then current prices for the period dating from the beginning of the lapse through one year from the date of such reinstatement.
Other Distribution Requirements
If you are a Production User that chooses to distribute an Integrated Application then you must do the following:
If You are a Production User that chooses to distribute an Integrated Application then you must not do the following:
Disclaimer of Warranty
THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, iNTERFACEWARE AND ITS SUPPLIERS AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND CONTRACTORS DISCLAIM ANY REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, COLLATERAL OR ARISING BY STATUTE OR OTHERWISE, REGARDING THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT.
NEITHER iNTERFACEWARE NOR ITS SUPPLIERS WARRANTS THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY USE OF THE SOFTWARE IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU, YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SOFTWARE. NEITHER iNTERFACEWARE NOR ANY OF ITS SUPPLIERS WARRANTS OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION OBTAINED BY YOU FROM PERSONNEL OF iNTERFACEWARE OR ITS SUPPLIERS SHALL CREATE ANY CONDITION OR WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL iNTERFACEWARE OR ITS SUPPLIERS OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND CONTRACTORS BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF iNTERFACEWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SOFTWARES; OR (B) ANY OTHER MATTER RELATING TO THE THE SOFTWARE. IN NO EVENT SHALL iNTERFACEWARE'S OR ITS SUPPLIERS'TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USING THE SOFTWARE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SOFTWARE, OR WITH ANY OF THE PROVISIONS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE OF THE SOFTWARE.
You agree to indemnify, hold harmless and, at our option, defend iNTERFACEWARE, its Affiliates and its sub-distributors, and its and their respective officers, directors, shareholders, employees, agents and contractors from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable legal fees and expenses) arising from Your use, or the use of Your sub-distributors or any End User, of the Software or any of the Integrated Applications, Your violation of this Agreement, or Your infringement of any intellectual property or other right of any person or entity.
Term and Termination
If You are a Trial User, iNTERFACEWARE may terminate this Agreement at any time without notice. Following termination, You will immediately cease using the Software.
If You are a Development User or a Productions User, this Agreement shall continue in full force until terminated pursuant to this section. iNTERFACEWARE may terminate this Agreement for default if You: (a) become insolvent; (b) files any proceeding in bankruptcy or acquires the status of a bankrupt; (c) have a receiver or receiver manager appointed with respect to it or any of Your assets; (d) seek the benefit of any statute providing protection from creditors. iNTERFACEWARE may also terminate this Agreement for default if You breach any provision of this Agreement provided iNTERFACEWARE provides You with written notice of termination. Any termination of this Agreement shall be without prejudice to each right and/or remedy which iNTERFACEWARE may possess against You under this Agreement, at law, in equity, and/or otherwise. Upon any termination of this Agreement: (a) all licenses granted by iNTERFACEWARE herein shall immediately terminate; and (b) You shall immediately cease all use of the Software and return all of the Software (including all copies thereof made by, or for, You) to iNTERFACEWARE. The rights and obligations of the parties which by their terms require performance after the termination of this Agreement or by their nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes. iNTERFACEWARE may, from time to time, audit Your records and computer systems to ensure that You have complied with Your obligations to iNTERFACEWARE under this Agreement. Without limiting the generality of the foregoing, if You are Production User then You and Your sub-distributors must maintain adequate records of Your activities in connection with this Agreement. Such records shall include, without limitation, executed sub-license agreements and sub-distribution agreements and the number of copies of the Integrated Application sub-licensed by You and Your sub-distributors. Upon written request and after reasonable notice, but not more than once per calendar year, You must permit a representative selected by iNTERFACEWARE to audit such records to determine compliance with the terms of the Agreement. Such audits will be conducted during normal business hours and will not interfere unreasonably with Your business activities.
Notwithstanding termination of this Agreement, all sub-licenses which have been properly granted by You or Your sub-distributors to End Users pursuant to this Agreement prior to its termination shall survive said termination in accordance with their respective terms, provided that the license for each such End User will be conditional on the End User first purchasing a separate development license from iNTERFACEWARE at the then current rates.
You will: (a) receive and maintain the Software in confidence; (b) use the same degree of care with respect to the Software as You employ to protect Your own confidential and/or trade secret information from unauthorized use, duplication and/or disclosure, being, in any event, a high degree of care; and (c) use, duplicate, and disclose the Software solely in accordance with the provisions of this Agreement.
Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future, arising out of or relating to: (i) this Agreement; (ii) the Software; (iii) oral or written statements or advertisements or promotions relating to this Agreement (collectively, the "Claim") will he determined by arbitration to the exclusion of the courts. You agree to waive any right You may have to commence or participate in any class action against iNTERFACEWARE. Arbitration will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration in Ontario. The obligations to arbitrate shall not apply to claims for misuse or infringement of iNTERFACEWARE's intellectual property rights.
Governing Law and Jurisdiction
The validity, construction and interpretation of this Agreement, and the rights and duties of the parties hereunder, shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. You agree and hereby submit to the non-exclusive jurisdiction of the courts of the Province of Ontario with respect to all matters relating to this Agreement.
This Agreement embodies the entire agreement of the parties with respect to the subject matter hereof and supersedes and cancels any and all prior understandings or agreements, verbal or otherwise, in relation hereto which may exist between the parties including , without limitation, any prior software license agreements and terms and conditions. No oral explanation or information by either of the parties hereto shall alter the meaning or interpretation of this Agreement. All preprinted terms contained in any document used by the You to order software and/or user licenses from iNTERFACEWARE are hereby fully rejected by iNTERFACEWARE and shall have no legal effect. Neither the Agreement, nor any rights, licenses or obligations hereunder, may be assigned by the You, in whole or in part, without iNTERFACEWARE's prior written consent. Any attempted assignment in violation of this Section shall be void and without effect. Subject to the foregoing, this agreement will benefit and bind the parties' successors and assigns. Except for payment obligations pursuant to this Agreement (including applicable taxes) or any obligations relating to the protection of or restrictions applicable to the iNTERFACEWARE's confidential information or intellectual property, neither party shall be liable to the other or in breach of this Agreement by reason of any failure or delay in performance of its obligations to the extent such failure or delay arises (and only for the duration that the affected party is precluded from performing) as a result of acts of God, fire, disaster, explosion, vandalism, storm, adverse weather conditions, strikes, labor disputes or disruptions, epidemics, wars, national emergencies, riots, civil disturbances, shortages of materials, actions or inactions of government authorities, terrorist acts, lockout, work stoppages or other labor difficulties, border delays, failures or interruptions of utilities or telecommunications equipment or services, system failures or any other cause or event that is beyond the reasonable control of that party. The failure by iNTERFACEWARE to require or enforce the performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Each provision of this Agreement is severable from the other provisions and if any of the provisions contained in this Agreement are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, the other provisions will continue to have full force and effect. All provisions of the United Nations Convention On Contracts For The International Sale of Goods are hereby rejected by the parties and excluded from this Agreement in their entirety. The Uniform Computer Information Transactions Act, or any version thereof, adopted by any state located in the United States, in any form ("UCITA") shall not apply to this Agreement. To the extent that UCITA is applicable, the parties agree to opt out of the applicability of UCITA pursuant to the opt-out provisions contained therein.
MAINTENANCE AND SUPPORT PROGRAM
During the term of this Agreement, and subject to paying the applicable maintenance and/or support fee(s), iNTERFACEWARE will provide maintenance and/or support services to You for each instance of the Software for which You have purchased maintenance and/or support services. Maintenance covers Upgrades, transfers and bug-fixes while technical support covers technical assistance from iNTERFACEWARE’s technical support team. Maintenance and support is not available for Trial Users and is not transferable amongst instances of the Software for which You have obtained separate registration keys. For example, if You have purchased one development registration key and one runtime registration key, but only purchased maintenance and support service in connection with one of the registration keys, then You cannot get maintenance and support services for the instance of the Software associated with the other registration key unless You purchase a separate maintenance and support program for that instance of the Software.
Unless you have elected to purchase technical support on an hourly or per incident basis, the term of the maintenance and/or support services shall begin on the date that You purchase such services in connection with a particular registration key and shall continue for a period of one (1) year (the "Initial Term"). The maintenance and/or support services shall automatically renew at the end of the one (1) year period (each a "Renewal Term) and You will automatically be invoiced for each such Renewal Term, unless You give notice of Your intent to terminate the maintenance and/or support services within 90 days of the end of the then current term.
If You are a Development User who has purchased both maintenance and support, then maintenance and support services shall consist of error correction, upgrades and permitted transfers as further described below.
a. Error Correction. During the first thirty (30) days of the Initial Term, iNTERFACEWARE will provide unlimited telephone support relating to Minor Support Incidents, installation of the Software and other issues as deemed appropriate by iNTERFACEWARE. During the Initial term and during each Renewal Term of the Agreement, iNTERFACEWARE will provide support for up to 10 Minor Support Incidents unless the support option You have purchased entitles you to a high number of Minor Support Incidents. Allowance for unused Minor Support Incidents during the Initial Term or a particular Renewal Term cannot be accumulated for use in subsequent Renewal Terms. If iNTERFACEWARE provides support for an issue that is not a Minor Support Incident, it will not be taken as acquiescence to providing further support for the issue or other issues that are not Minor Support Incidents. For the purposes of this Agreement, the term "Minor Support Incident" means a technical issue that can be resolved in less than twenty (20) minutes, as determined solely by iNTERFACEWARE. Each attempt to resolve such an issue will be a separate Minor Support Incident. For example, two telephone calls to iNTERFACEWARE support to resolve the same issue will count as two Minor Support Incidents. In no circumstances does iNTERFACEWARE represent or warrant that Minor Support Incidents or other problems with the Software will not occur or that any or all of such problems can or will be remedied.
b. Upgrades. During the term of the maintenance service, iNTERFACEWARE may at its sole discretion provide upgrade versions of the Software. At any time, iNTERFACEWARE will provide support only for its current version of the Software. iNTERFACEWARE does not warrant that future versions of the Software will include the features of all previous versions.
c. Transfers. During the term of the maintenance service, iNTERFACEWARE will accommodate reasonable requests to transfer an installation of the Software from the computer system on which it is initially installed to a replacement computer system in case of hardware failure or replacement. Following such a transfer, You, Your sub-distributors or the End Users, as the case may be, will only use the installation on the replacement computer system in accordance with all of the restrictions set out herein in respect of the initial computer system. iNTERFACEWARE will be entitled to decline to accommodate more than one (1) transfer in any ninety (90) day period or more than two (2) transfers in any 365 day period.
Second Level Support. If You are a Production User who has purchased both maintenance and support, then maintenance and support services shall consist of error correction, upgrades and permitted transfers as described above and, in addition, You or Your support personnel shall provide First Level Support to End Users for the Integrated Applications distributed by You or Your sub-distributors. Problems encountered with Integrated Applications requiring Second Level Support will be submitted to iNTERFACEWARE through Your first level support personnel. Second Level Support to be provided by iNTERFACEWARE consists of e-mail and toll-free (in North America) telephone consultation on use of the Software (including assistance with Error diagnosis, isolation, and correction) during iNTERFACEWARE's standard support hours. For the purposes of this Agreement, the term "First Level Support" means basic or initial support and includes responding to routine inquiries logging calls and messages, initial problem determination and providing known work-arounds and solutions.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL iNTERFACEWARE OR ITS SUPPLIERS OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND CONTRACTORS BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF iNTERFACEWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, THE MAINTENANCE AND SUPPORT SERVICES IN NO EVENT SHALL iNTERFACEWARE'S OR ITS SUPPLIERS' TOTAL LIABILITY FOR THE MAINTENANCE OR SUPPORT SERVICES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU FOR THE MAINTENANCE AND SUPPORT SERVICES IN THE THREE MONTHS PRIOR TO THE INCIDENT GIVING TO THE CLAIM. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE MAINTENANCE OR SUPPORT SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF ITS USE OF SUCH SERVICES.
You may purchase an additional support service from iNTERFACEWARE on a per-incident, hourly or an annual basis. Further information about iNTERFACEWARE's support services for the Software is available at www.interfaceware.com.
You may contact iNTERFACEWARE
support by using the contact information at www.interfaceware.com.
Last Updated: October 5 2011