TERMS OF SERVICE
FOR CLOUD-HOSTED SOFTWARE
THIS AGREEMENT APPLIES TO CENOTE’S CLOUD-HOSTED SOFTWARE ONLY. THE TERMS OF CENOTE’S SELF-HOSTED OR BEHIND-THE-FIREWALL SOFTWARE ARE GOVERNED BY A SEPARATE AGREEMENT.
IF YOU DO NOT HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT OR YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT USE THE SOFTWARE. LAWFUL USE OF THE SOFTWARE IS CONDITIONAL UPON YOUR COMPLIANCE OF THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THE TERMS FOUND BELOW.
CENOTE OWNS ALL INTELLECTUAL PROPERTY IN THE SUPPLIED SOFTWARE. LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY SIGNING OR CLICKING THE CHECKBOX TO CONFIRM RECEIPT OF THIS AGREEMENT, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENCE THE SOFTWARE TO LICENSEE AND YOU MUST NOT ALLOW FOR THE USE OF THE SOFTWARE OR DOCUMENTATION.
By ordering, using or accessing Cenote Software, you indicate your consent to be bound by the terms of this Agreement. The terms of this Agreement apply to Cenote apps and your access to the Software from channels which include:
(a) the Atlassian Marketplace, owned and/or managed by Atlassian Pty Ltd. (“Atlassian”);
(b) Cenote’s own website or marketplace; and
(c) other marketplaces, websites, or other mechanisms which sell or license Cenote products and may refer to this Agreement.
This Agreement governs your initial purchase as well as future purchases of Cenote Software. Any agreement entered into between you and Atlassian may set out additional obligations to this Agreement.
1.1 For purposes of this Agreement, the following terms have the following meanings:
(a) “Authorized Users” means the individual person(s) authorized to use the Software pursuant to the license granted under this Agreement and the Purchase Contract. Only the specific individuals for whom Licensee have registered and paid the required fees may access and use the Software. Authorized Users may include employees, representatives, consultants, contractors, agents, or other third parties who are acting for Licensee’s benefit or on its behalf.
(b) “Cenote” means Cenote Labs, Inc.
(c) “Confidential Information” means non-public proprietary information of the disclosing party (“Discloser”) obtained by the receiving party (“Recipient”) in connection with this Agreement, which is (a) conspicuously marked as confidential or, if verbally disclosed, is summarized in writing to the Recipient within 14 days and marked as confidential; or (b) is information which by its nature should reasonably be considered confidential whether disclosed in writing or verbally. All operability information regarding the Software will be included in the definition of Confidential Information.
(d) “Documentation” means any and all user manuals, instructions, and other documents and materials that Licensor makes available to Licensee in any form or medium which describe the functionality, components, features or requirements of the Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof. For further clarity:
a. “Administrator Documentation” means any resources, guides and documentation provided by Cenote that describes the design and function of the Software, including without limitation, “general configurations” and other program descriptions, release notes, functional requirements, logic manuals flow charts, schematics, statements of principles of operations, and architecture standards describing the data flows, data structures and control logic of the Software.
b. “User Documentation” means any and all text material that describes the functions, operation, and use of the Software, including, without limitation, installation guides, user manuals, training materials, release notes, and working papers, and that is reasonably necessary for the operation of the Software by Licensee as contemplated hereunder.
(e) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(f) “License Fees” means the license fees and any other related fees, including all taxes thereon, required to be paid by Licensee for the usage license granted under this Agreement. The current pricing for the Software is posted by Licensor on the Atlassian Marketplace and stated in the Purchase Contract. Licensee and Atlassian are solely responsible for the collection and payment of any applicable taxes. Licensor is not and will not be subject to any penalty, fine or other liability resulting from the late filing, failure to pay applicable taxes, audit, action, investigation or assessment of taxes regarding the sale, license and/or use of the Software in any jurisdiction. Licensee acknowledge that should Atlassian fail to remit, collect or pay any applicable tax, Licensee hereby indemnifies Licensor and Licensee shall be solely responsible to remedy any discrepancy.
(g) “Licensee” means you, the individual or legal entity that entered into the Purchase Contract.
(h) “Licensor” means Cenote.
(i) “Person” means an individual, corporation, partnership, joint venture, governmental authority, unincorporated organization, trust, association or other entity.
(j) “Purchase Contract” means the order form filled out and submitted by or on behalf of Licensee and accepted by Atlassian (or other third-party partner or marketplace) to access and use the Software under this Agreement, as well as any subsequent order forms submitted to renew the contract, or to upgrade or downgrade the quantity of Authorized Users. Licensee is responsible to provide accurate and complete information to Atlassian and any third-party partners in order to allow Licensor to send notices, statements and other information regarding the Software and its access thereto.
(k) “Software” means certain Cenote hosted software-as-a-service computer program(s) operating in conjunction with Atlassian’s enterprise software known as Confluence or Jira. Software includes, without limitation, computer software, source code, object code, associated media, icons, images, text files, pdfs and other static non-code assets contained within any form of software, as well as upgrades and applicable Documentation.
(l) “Third Party” means any Person other than Licensee or Licensor.
(m) “You” means the Licensee.
2 License and Right to Use
2.1 Subject to and conditional on Licensee’s registration with Atlassian and payment of the License Fees and Licensee’s strict compliance with all terms and conditions of this Agreement and the Purchase Contract, Cenote hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license, to access and to use the Software and Documentation for Licensee’s business operations during the applicable subscription term (“License”). Licensee acknowledges that the Software is on-line and subscription based and Licensor may make changes to the Software from time to time.
2.2 Only Licensee’s Authorized Users may access the Software. The number of Authorized User seats granted for this License is as set forth in the Purchase Contract. Licensee is responsible for compliance by all users on its account. Licensee may increase or decrease the number of seats permitted by placing a new order with Atlassian. Licensee is responsible for compliance with this Agreement by all Authorized Users.
2.3 All Authorized Users must keep their ID and password to access the Software strictly confidential and not share such information with any unauthorized Person. Licensee is responsible for all actions taken using its accounts.
2.4 If Cenote grants access to Software on an early access program, beta or other free-of-charge basis (“Beta Software”), Licensee may only use the Beta Software on a temporary basis for the period limited by the license key or specified by Cenote or Atlassian. If no period is identified, such use is limited to 30 days after the Beta Software is made available. If Licensee fails to stop using the Beta Software by the end of the trial period, Licensee may be invoiced for its list price and agrees to pay such invoice. Cenote, in its discretion, may stop providing the Beta Software at any time, at which point Licensee will no longer have access to any related data, information, and files and must immediately cease using the Beta Software. The Beta Software may not have been subject to Cenote’s usual testing and quality assurance processes and may contain additional bugs, errors, or other issues. Except where agreed to in writing by Cenote, Licensee may not put Beta Software into production use. Cenote provides Beta Software “as-is” without support or any express or implied warranty or indemnity for any problems or issues, and Cenote will not have any liability relating to its use.
2.5 Usage Rights acquired on a subscription basis will automatically renew for the renewal period indicated on the order placed with Atlassian (“Renewal Term”) unless Licensee provides notice as set out in the Purchase Contract.
3 Third Party Materials
3.1 The Software may include software, content, data or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). The terms of such Third-Party Licenses shall apply in lieu of the terms of this Agreement with respect to such software, content, data or other materials, including related documentation, that are owned by Persons other than Licensor.
4 Use Restrictions
4.1 Except as otherwise expressly set forth in this Agreement, Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(a) use the Software or Documentation beyond the scope of the License;
(b) provide any other Person, other than an Authorized User, with access to or use of the Software, the Documentation or any functionality of the Software;
(c) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs without the prior written consent of Licensor;
(e) reverse engineer, disassemble, decompile, decode, translate, modify, or create any derivative work of the Software or Documentation;
(f) disclose, publish, sublicense, sell, lend, rent, lease or transfer the Software and Documentation;
(g) copy the Software onto any public or distributed network;
(h) interfere with other customer’s access to, or use of, the Software or with its security;
(i) cause an unusual spike or increase in use of the Software that negatively impacts the cloud service’s operation;
(j) use the Software to operate in or as a time-sharing, outsourcing, service bureau, application service provider or managed service provider environment;
(k) copy or reproduce the Software or Documentation or otherwise attempt to discover the source code or structural framework of the Software or derive or gain access to the source code of the Software or any part thereof;
(l) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or Intellectual Property Rights notices provided on or with the Software or Documentation, including any copy thereof;
(m) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service (SaaS), cloud or other technology or service;
(n) use the Software or Documentation in violation of any law, regulation or rule; or
(o) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor’s commercial disadvantage.
4.2 Licensor’s remedies set forth in this Agreement are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.
5 Confidential Information and Use of the Software
5.1 Recipient will hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential Information to any third party, except for its employees, affiliates, and contractors who have a need to know (“Permitted Recipients”). Recipient: (a) must ensure that its Permitted Recipients are subject to written confidentiality obligations no less restrictive than the Recipient’s obligations under this Agreement, and (b) is liable for any breach of this section by its Permitted Recipients. Such nondisclosure obligations will not apply to information that: (i) is known by Recipient without confidentiality obligations; (ii) is or has become public knowledge through no fault of Recipient; or (iii) is independently developed by Recipient. Recipient may disclose Discloser’s Confidential Information if required under a regulation, law or court order provided that Recipient provides prior notice to Discloser (to the extent legally permissible) and reasonably cooperates, at Discloser’s expense, regarding protective actions pursued by Discloser. Upon the reasonable request of Discloser, Recipient will either return, delete or destroy all Confidential Information of Discloser and certify the same.
5.2 Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized User(s) or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this Agreement.
5.3 To the extent Licensee’s use of the Software requires it, Licensee is responsible for providing notice to, and obtaining consents from, individuals regarding the collection, processing, transfer and storage of their data through Licensee’s use of the Software. Licensee must make itself aware of all applicable laws regarding privacy and ensure that its use of the Software conforms thereto.
5.4 In addition to any and all remedies available to Licensor, the License will terminate automatically if Licensee uses or permits the use of the Software or Documentation in any manner not permitted by this Agreement.
6 Ownership and End-User Data
6.1 Software is made available on a limited license or access basis and no ownership rights are conveyed to Licensee, irrespective of the use of the terms such as “purchase” or “sale” in any Purchase Contract. Nothing in this Agreement transfers ownership in, or grants any license to, any Intellectual Property Rights in the Software. Licensee retains ownership of its content uploaded to the hosted service (“End-User Data”) and Cenote (and/or its licensors) retains all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Software and Documentation. Cenote’s ownership rights include the “look and feel” and all underlying technology (including modifications and derivative works) created by or for Cenote. Cenote may use, shall own and be free to fully exploit any feedback Licensee provides in connection with its use of the Software as part of its business operations without compensation to Licensee.
6.2 Licensee represents and warrants that it owns and/or has obtained all necessary rights, releases and permissions to upload its End-User Data and any use by Licensee does not violate any laws or rights of any third party whatsoever. Licensee will not submit any sensitive data, such as patient, medical or other protected health information regulated by HIPAA or any similar law. End-User Data will not infringe or violate any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies.
6.3 Licensee permits Licensor to retrieve End-User Data directly from Atlassian via Atlassian APIs, portals or other similar means for the purpose of provide the services outlined herein, to communicate with the Licensee and for improving the functionality of the Software. Licensor will not sell any End-User Data.
7 Maintenance and Support
7.1 Support services are included for a period identical to that provided for the use of the Software, as set out in the Purchase Contract.
7.2 Support services will be as provided under the terms of the Cenote Support Service Level Agreement, as posted on Cenote’s website and as may be amended from time to time by Licensor (https://www.cenotelabs.com/docs/resources/legal-notices/cenote-support-service-level-agreement-sla).
7.3 Licensor may provide updates, upgrades, new releases required to operate the Software, patches and other error corrections as deemed necessary by Licensor (collectively, “Updates”). Licensee acknowledges that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement.
7.4 Maintenance and support services shall not include any new technology or new modules or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.
8 Collection and Use of Information
8.1 Licensee acknowledges that Licensor may, directly or indirectly, access, collect, store, transmit, treat, use, disclose, share information regarding use of the Software and equipment through which it otherwise is accessed and used, through analytics tooling included in the Software. Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to improving the performance of the Software or developing Updates.
8.2 Licensee represents and warrants that it will comply with all applicable laws relating to the protection of personal information, including without limitation, the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”), as applicable, and all applicable Canadian, provincial and international privacy requirements governing the collection, use and disclosure of personally identifiable information and will process and store personally identifiable information only in accordance with applicable privacy laws.
9 Intellectual Property Rights
9.1 The Software and Documentation comprises valuable patent, copyright, trade secret, trademark, mask work and/or other proprietary rights of Licensor. Licensor (and/or Licensor’s licensors) owns exclusively and reserves all right, title, and interest in and to the Software and Documentation.
9.2 Licensee acknowledges that Licensor shall retain all right, title and interest in the Software and all related Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any title, intellectual property or ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions and restrictions under this Agreement. Licensor reserves and shall retain its entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software. Licensee shall use commercially reasonable efforts to safeguard any passwords and access to the Software in order to avoid infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
9.3 Licensee acknowledges and agrees that the Software and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Software, all future updates and upgrades, and all other improvements, revisions, corrections, bug-fixes, hotfixes, patches, modifications, enhancements, releases, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Software, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of Licensor, having great commercial value to Licensor.
10.1 If an IP Claim is made and prevents Licensee’s use of the Software, Licensor will either procure for Licensee the right to continue using the Software or replace or modify the Software with functionality that is at least equivalent. Only if Licensor determines that these alternatives are not reasonably available, Licensor may terminate Licensee’s rights granted under this Agreement, upon written notice, and will refund Licensee a prorated portion of the fee paid for the Software for the remainder of the unexpired usage term. Licensee agrees to indemnify and defend Licensor against any claim or action filed against Licensor to the extent that it is based on a claim that Licensee’s use, outside the scope of this Agreement, infringes a valid U.S., Canadian, European or other international intellectual property right.
10.2 Licensor has no obligation with respect to any IP Claim based on: (a) compliance with any designs, specifications, or requirements Licensee provides or a third party provides on Licensee’s behalf; (b) Licensee’s modification of any Software or modification by a third party; (c) the amount or duration of use made of the Software, revenue Licensee earned, or services Licensee offered; (d) combination, operation, or use of the Software with non-Cenote products, software or business processes; (e) allegations that Licensee indirectly infringes by inducing or contributing to another’s infringement; (f) Licensee’s failure to modify or replace the Software as required by Cenote; (g) any Beta Software; or (h) any Evaluation Software (as defined in Section 15.10 below).
10.3 Licensor’s obligations under this section are conditioned upon Licensee’s prompt written notice to Licensor of a claim and on Licensee giving to Licensor the right to solely control and conduct the defense and any settlement of the claim. Licensee must fully and timely cooperate with Licensor and provide Licensor with all reasonably requested authority, information and assistance. Licensor will not be responsible for any costs, expenses or settlement incurred or made by Licensee without Licensor’s prior written consent. At its option, Licensor will solely control and conduct the defense and any settlement of indemnified claims.
10.4 This Section 10 states Licensor’s entire obligation and Licensee’s exclusive remedy regarding any IP Claims against Licensee.
11 Fees and Payment
11.1 License Fees. All License Fees are non-refundable and are payable in the manner set forth in the Purchase Contract. Orders are non-cancellable after 30 days and if Licensee uses the Software beyond any limited allowable use, Cenote and Atlassian reserve the right to invoice Licensee and Licensee agrees to pay such additional invoice.
11.2 Refunds. Where Licensor provides a refund of license fees paid for Software, Licensee must return or destroy all copies of the applicable Software. Except as expressly stated in this Section, to the extent allowed by applicable law, Licensor expressly disclaims all warranties and conditions of any kind, express or implied, including without limitation any warranty, condition or other implied term as to merchantability, fitness for a particular purpose or non-infringement, or that the Software will be secure, uninterrupted or error free. If Licensee is a consumer, Licensee may have legal rights in its country of residence that prohibit the limitations set out in this Section from applying, and, where prohibited, they will not apply.
12 Term and Termination
12.1 This Agreement and the license granted hereunder shall remain in effect for the term set forth in the Purchase Contract or until terminated as set forth herein (the “Term”). Licensee recognizes that the Software is provided on a subscription basis, and that when the subscription is terminated (including the failure to renew, the nonpayment of fees, or for any other reason), Licensee’s access to the Software will immediately cease and Licensor is under no further obligation to retain any End-User Data that Licensee may have stored in its Software.
12.2 Licensor may immediately suspend or terminate Licensee’s usage rights and/or this Agreement in the event of a breach of Sections 2, 4 or 5 by Licensee, or if Licensee files an assignment in bankruptcy or has a bankruptcy order made against it under any bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, receiver-manager, monitor or custodian for all or a substantial part of its property.
12.3 If Licensee materially breaches any provision of this Agreement and does not cure that breach within 30 days after receipt of written notice of the breach, Licensor may terminate this Agreement for cause, effective upon written notice to Licensee.
12.4 Upon termination of this Agreement, the License granted hereunder shall also terminate, and Licensee shall cease using all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees and any support fees, if applicable, that may have become due before such expiration or termination or entitle Licensee to any refund.
12.5 At its sole discretion, Licensor may decide to discontinue offering the Software. In the event that Licensor decides to cease offering the Software, it shall provide no less than ninety (90) days’ notice to Licensee, after which Licensee’s right to use the Software shall terminate. Licensor shall refund to Licensee any pro-rated fees that may have already been collected that correspond to the time period subsequent to the termination date. Licensor agrees to make commercially reasonable efforts to provide Licensee with the means to retrieve End-User Data that may still be stored in the Software before the service is terminated.
13. Warranties and Representations
13.1 Licensor warrants that: (a) for a period of 90 days from the delivery date (or longer as stated on Licensor’s website), the Software substantially complies with the Documentation; and (b) during the usage term, it provides the access with commercially reasonable skill and care in accordance with the Documentation. The Licensor does not make any other express or implied warranty hereunder and specifically does not warrant: (i) that the Software will operate uninterrupted, error-free, or achieve any particular result or (ii) that the Software will be free of vulnerability to intrusion or attack. Except for the limited warranty set forth in this section, the Software is provided "AS IS." Provided Licensee is not in breach of its obligations, in the event that the Software fails to substantially perform in accordance with the Documentation, Licensor will use commercially reasonable efforts to correct the problem. If Licensor is unable to resolve the problem, Licensor will, at its sole discretion, either: (a) replace the Software, (b) install a new release of the Software when it becomes generally available, or (c) return the Software to a prior release. Notwithstanding anything else in this section, Licensor is relieved of and bears no liability whatsoever for failures of Atlassian (or caused by Atlassian, directly or indirectly) to provide, provision, maintain access, or provide error-free services to any Atlassian systems or services that may also impact the functionality of Licensor’s software. The foregoing is Licensor’s entire liability and Licensee’s sole and exclusive remedy under the above limited warranty.
13.2 Section 13.1 above shall not apply if the Software: (a) has been altered, except by Licensor or its authorized representative; (b) has been subjected to abnormal physical conditions, accident or negligence, or installation or use inconsistent with this Agreement or Cenote’s instructions; (c) is Beta Software; (d) is Evaluation Software; (e) is not a Cenote branded software; or (f) has not been provided by Atlassian or other authorized third-party partner or marketplace. Upon Licensee’s prompt written notification to Licensor during the warranty period stated above, Licensee’s sole and exclusive remedy (unless otherwise required by applicable law) is, at Licensor’s option, either (i) repair or replacement of the applicable Software or (ii) a refund of the (a) license fees paid or due for the non-conforming Software, or (b) the fees paid for the period in which access was impaired.
13.3 The limited Software warranties provided under this Agreement are subject to Licensor receiving timely written notice of any nonconformity with as much specificity as is known and as soon as Licensee becomes aware of such nonconformity, but in any event prior to the expiration of the Warranty Term. Licensor shall have the right to inspect and test the Software to determine, in its reasonable opinion, whether the nonconformity is covered under the warranty.
13.4 LICENSEE ASSUMES FULL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE LICENSEE’S INTENDED PURPOSES, FOR THE PROPER USE OF THE SOFTWARE AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE SOFTWARE. LICENSOR MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE OR DOCUMENTATION WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE INTERRUPTION OR ERROR FREE.
13.5 TO THE FULLEST EXTENT PERMITIED BY LAW, LICENSOR AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, TERMS AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE IS NOT DESIGNED OR TESTED FOR USE IN HAZARDOUS ENVIRONMENTS OR ANY OTHER ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, AIR TRAFFIC CONTROL SYSTEMS; LIFE SAVING OR LIFE SUSTAINING SYSTEMS OR SUCH OTHER MEDICAL DEVICES; OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, SEVERE PROPERTY DAMAGE, OR ENVIRONMENTAL HARM. THE LICENSEE AGREES TO DEFEND, INDEMNIFY, AND HOLD LICENSOR AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING OUT OF ITS USE OF THE SOFTWARE FOR ANY HIGH-RISK USES, INCLUDING CLAIMS FOR PRODUCT LIABILITY, PERSONAL INJURY OR DEATH, OR DAMAGE TO PROPERTY, AND REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART ON THE ALLEGED OR ACTUAL NEGLIGENCE OF LICENSOR. THE LICENSEE IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF SOFTWARE FOR ITS INTENDED USE.
13.6 IMPORTANT NOTE: Nothing in this Agreement is intended to or shall be construed as excluding or modifying any statutory rights, warranties or conditions which may be applicable to this Agreement, the Software or Documentation, and which by virtue of any provincial, state or federal fair trade or other consumer legislation may not be modified or excluded. To the extent such legislation is applicable to Licensee’s license of the Software or is required by such legislation, any required warranty is limited in duration to ninety (90) days from the date of delivery and Licensor and its licensor’s liability for any breach of any such warranty or condition shall be and is hereby limited to either: (a) the replacement of such Software; or (b) the correction of any defect in such Software or Documentation as Licensor, at its sole discretion, may determine to be necessary to correct the defect. All limited warranties are void if failure of the Software has resulted from Acts of God, accident, abuse, misapplication or electrical surge or any other cause beyond Licensor's control.
13.7 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE LICENSOR PROVIDES NO CONDITION, WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
14.1 Licensor shall not be liable for any indirect, incidental, exemplary, special or consequential damages; loss or corruption of data or interruption or loss of business; or loss of revenues, profits, goodwill or anticipated sales or savings. The maximum aggregate liability of Licensor under this Agreement is limited to the fees received by Licensor for the applicable Software and attributable to the 12 month period immediately preceding the first event giving rise to such liability.
15.1 Governing Law. This Agreement is governed by and construed in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the courts Montreal, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
15.2 Force Majeure. Except for payment obligations, neither party will be responsible for failure to perform its obligations due to an event or circumstances beyond its reasonable control.
15.3 Notification Obligations. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered with written confirmation of receipt; or (ii) on the date sent by email, with confirmation of transmission, if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. General notices may be delivered by Licensor when posted on Cenote’s website.
15.4 Entire Agreement. This Agreement, together with the Purchase Contract, all schedules attached hereto, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
15.5 Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. Any purported assignment, delegation or transfer in violation of this Agreement is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance under this Agreement without Licensee’s consent. This Agreement is binding upon and enures to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
15.6 Amendments. Licensor may modify the terms of this Agreement through updates as found on Licensor’s website (https://www.cenotelabs.com). Changes to this Agreement apply to any rights acquired or renewed after the date of modification.
15.7 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
15.8 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Sections refer to the Sections of this Agreement; (ii) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Purchase Contract and all Schedules referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
15.9 Export Controls. The Software and related information may be subject to export and import restrictions. The Licensee agrees to comply with any laws which may impact the Licensee’s right to export, import or use the Software or related information (including, without limitation, United States and Canadian export laws). Licensee agrees to specifically comply with all laws, restrictions and regulations of the Deportment of Commerce as well as the United States Department of Treasury Office of Foreign Assets Control. Licensee is not located in or under the control of any restricted country. Additionally, the Licensee shall obtain and maintain all permits, licenses or certificates required by any regulatory body for importation, distribution or use of the Software. The Licensee shall not use the Software or related information, whether directly or indirectly, for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. The Licensee shall be responsible for procuring all required permissions for any subsequent export, import or use of the Software or related information. The Licensee will not incorporate the Software into any Solution or product that requires a license or other authorization for export to China under any Export Controls and Economic Sanctions Laws. In the event that, after the Effective Date, the Licensor or Licensee is informed by any governmental authority or reasonably determines that any Solution, or the transaction contemplated in this Agreement, becomes subject to a control pursuant to the Export Controls and Economic Sanctions Laws that requires a license or other authorization for export to China or the transaction becomes subject to a CFIUS Requirement, the applicable party shall promptly notify the other party to the extent permitted by applicable law, and the Licensee shall cooperate with all reasonable request of the Licensor regarding filings with, notifications and submissions to, and licenses, certificates and approvals from the U.S. Commerce Department, CFIUS or any other governmental authority, as applicable. The Software, and Documentation may be deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to FAR 12.212 and DFARS 227.7202. All U.S. Government end users use the Software and Documentation with only those rights set forth in this Agreement. Any provisions that are inconsistent with federal procurement regulations are not enforceable against the U.S. Government.
15.10 Evaluation Software. If the Software has been identified by Licensor as “trial” or “evaluation” Software (“Evaluation Software”), then the provisions of this section apply and shall supersede any other conflicting term of this Agreement. Licensee’s royalty-free, nontransferable, limited license to use the Evaluation Software, for evaluation purposes only, is limited to thirty (30) days unless otherwise agreed to in writing by Licensor. The Evaluation Software may contain errors or other problems that could cause system or other failures and data loss. Consequently, Evaluation Software is provided “AS IS” and Licensee disclaims any warranty or liability obligations to Licensee of any kind. Support is not available for Evaluation Software. Any information about the Evaluation Software gathered from its use shall be used solely for evaluation purposes and shall not be provided to any third parties. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, LICENSOR’S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS UNDER THIS AGREEMENT, RELATED TO EVALUATION SOFTWARE, SHALL BE LIMITED TO THE SUM OF FIFTY ($50) U.S. DOLLARS OR THE EQUIVALENT IN LOCAL CURRENCY IN TOTAL.
15.11 Headings. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
15.12 Language. It is the express wish of the Parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est de la volonté expresse des Parties à cette entente que cette convention et tous les documents s’y rattachant, y compris les avis et toutes autres communications, soient rédigés et signés en anglais seulement.