- "Agreement" means this actiTIME 3.3 with Management and Accounting Extensions License Agreement.
- "Licensee" means: your company.
- "Software" means the actiTIME 3.3 with Management and Accounting Extensions.
- "Upgrade" means a revision to the Software designated by a change in the version number.
2. License Grant
Subject to Licensee's compliance with the terms and conditions of this Agreement, Actimind, Inc. ("Actimind") grants Licensee a non-exclusive, and non-transferable license to download, install and use the Software ONLY for the internal needs within Licensee organization. This Agreement does not restrict a number of software installations within organization.
3. Restrictions on Use
Licensee may not:
- modify the Software;
- create any derivative works of the Software;
- decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, underlying ideas, algorithms, structure or organization of the Software;
- redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer the Software or rights thereto;
- share the Software or any parts of the Software with any commercial or non-commercial organization as a part of other products or as a component of Licensee's services.
This Agreement does not entitle Licensee to Upgrade the Software and does not guarantee applicability of any Upgrade.
5. Licensee representations
Licensee represents and warrants that it has the legal capacity to enter into this Agreement, that it will use the Software only for lawful purposes and in accordance with this Agreement, and that it will not use the Software to violate any law, regulation or ordinance or any right of Actimind or its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent.
Should Licensee breach this Agreement, Licensee's right to use the Software shall terminate immediately and without notice. The respective rights and obligations of Actimind and Licensee under the provisions of Sections 3 ("Restrictions on Use"), 7 ("Termination"), 8 ("Proprietary Rights"), 9 ("Indemnification"), 11 ("Limitation of Liability"), and 14 ("Miscellaneous") shall survive expiration or termination of this Agreement and Licensee agrees to continue to be bound by those terms. Upon termination, Licensee shall destroy all copies
of the Software including all derivative works of the Software.
7. Proprietary Rights
Title, ownership rights, and intellectual property rights in the Software shall remain in Actimind. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Actimind's or its licensors' or other suppliers' ownership of or rights with respect to the Software. The Software is protected by copyright and other intellectual property laws and by international treaties. Licensee agrees that Actimind may use in any manner and without limitation all comments, suggestions, complaints and other feedback provided by Licensee in respect of the Software.
Licensee agrees to indemnify, hold harmless, and at Actimind's request, to defend Actimind, its affiliates, and its licensors from any and all costs, damages and reasonable attorneys' fees resulting from any breach of this Agreement or claim that Licensee's use of the Software has injured or otherwise violated any right of any third party or violates any law.
9. Disclaimer of Warranty for the Software
The software is provided with all faults on an "as is" basis. Actimind, its licensors and other suppliers disclaim all warranties, whether express or implied, including the
warranties that the software is free of defects, virus free, and able to operate on an uninterrupted basis, that the functionality of the software will meet licensee's requirements, or that errors in the software will be corrected, and the implied warranties that the software is of satisfactory quality, accurate, fit for a particular purpose or need, or non-infringing, unless such implied warranties are legally incapable of exclusion. Further, actimind, its licensors and other suppliers do not warrant or make any representations regarding the use or the results of the use of the software in terms of their correctness, accuracy, reliability, or otherwise. No oral or written information or advice given by actimind or an actimind authorized representative shall create a warranty or in any way increase the scope of any warranty that cannot be disclaimed under applicable law. Actimind and its licensors and other suppliers have no liability with respect to licensee's use of the software. Licensee bears the entire risk as to their quality and performance and assumes the entire cost of any service and repair. This disclaimer of warranty constitutes an essential part of this agreement. No use of the software is authorized hereunder except under this disclaimer.
10. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will actimind, or its respective parents, affiliates, directors, employees, distributors, suppliers, agents or resellers (collectively, the "actimind group") be liable for any indirect, special, incidental, consequential, or exemplary damages arising out of or in any way relating to this agreement, including, but not limited to lost profits, lost data, loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if such party has been advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based.
11. Export Controls
Licensee agrees to comply with all export and import laws and restrictions and regulations of any Canadian or foreign agency or authority, and not to export, re-export or import the Software or any direct Software thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals.
12. Injunctive Relief
Licensee acknowledges and agrees that, notwithstanding any other provisions of this Agreement, any breach or threatened breach of this Agreement by Licensee shall cause Actimind irreparable damage for which recovery of money damages would be inadequate and that Actimind therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
- This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, which may only be modified by a written amendment signed by an authorized executive of Actimind.
- If any provision in this Agreement should be held illegal or unenforceable, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect, or Actimind may at its option instead terminate this Agreement.
- A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
- Licensee may notassign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. Actimind may assign this Agreement to any entity at its sole discretion.
- This Agreement shall be binding upon andshall inure to the benefit of the parties, their successors and permitted assigns.
- Neither party shall be in defaultor be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.