With this Software License Agreement (hereinafter called the “Agreement”), Convergent Information Systems (“Convergent IS” or “Company”) grants to the user (“Licensee”) a non-exclusive and non-assignable license to use Convergent IS Software for Test and Evaluation purposes only and solely for Licensee’s internal business operations.
If Convergent IS software is being accessed in the absence of a Test and Evaluation initiative or any other software licensing agreement with Convergent IS, no rights are granted. Regardless of how the software is accessed, title, copyright, intellectual property rights and distribution rights of the Software remain exclusively with Convergent IS or its licensors.
1. “Software” includes the executable computer programs, the source code and any related printed, electronic and online documentation and any other files that may accompany the product.
2. “Development” and “Quality Assurance” systems refer to Licensee systems that are used to evaluate and test Software.
3. “Test and Evaluation” refers to the temporary evaluation (no longer than 30 days) of the Software on the Licensee’s Development or Quality Assurance systems to determine the suitability of the Software for deployment to the Licensee’s productive systems.
4. Licensee is responsible for Licensee’s end users’ compliance with this Agreement. Convergent IS reserves the right to conduct an audit to ensure licensing compliance only upon prior reasonable notice in writing of not less than 15 days.
5. Licensee agrees that Licensee does not acquire any resale rights under this Agreement. Upon the end of the Test and Evaluation, Licensee’s right to access or use the Company’s software programs and the services shall terminate.
6. Title, copyright, intellectual property rights and distribution rights of the Software remain exclusively with Convergent IS or its licensors.
7. Third party technology that may be appropriate for use with the Company program is specified in the program documentation as applicable. Licensee’s right to use such third-party technology is governed by the terms of the Third-Party Technology License Agreement and not under this Agreement.
8. Licensee may not:
a) Remove or modify any program markings or any notice of Company’s or its licensors’ proprietary rights;
b) Make the program or materials resulting from the services available in any manner to any unauthorized third party;
c) Use the software to build or support, and/or assist a third party in building or supporting, products or services competitive to those of the Company;
d) Disclose results of any services or program benchmark tests without Company’s prior written consent;
e) License, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, Company’s software program, or materials available to any third party, other than as expressly permitted under the terms of this Agreement;
f) Except as expressly provided herein, copy, reproduce, distribute, republish, display or transmit Company program in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means.
Warrants and Representations
9. Company warrants to Licensee that it has proper title to the software and all intellectual property associated with the software or services. Alternatively, if Company does not have title, it warrants that it has obtained all necessary licenses to the software and assigns such licenses to Licensee for purposes outlined in this Agreement.
10. Company warrants to Licensee that use of the software and/or services is not a violation of any law or regulation.
Limitation of Liability
11. The Software is provided by the Company on an "as is," "as available" basis, to be used at Licensee's own risk. Company does not guarantee that the software or any service will be error-free or uninterrupted, or that Company will correct all errors.
12. Licensee acknowledges that Company does not control the transfer of Licensee's data and that the service may be subject to loss of data, hacking, viruses, limitations, delays and other problems. Company is not responsible for any delays, delivery failures, loss of data or other damage resulting from such problems which were unforeseeable or which could have been prevented. Licensee is advised to independently back up its data regularly.
13. Except for indemnification obligations or breaches in connection with confidentiality or infringement of intellectual property rights, neither party shall be liable for any indirect, incidental, special, punitive, or consequential damages, or any loss of revenue or profits, data, or data use.
Term and Termination
14. This Agreement commences on deployment of the Software for Test and Evaluation and continues for 30 days. At the end of the term of this Agreement, the Licensee must destroy all copies of the Software in their possession and provide confirmation via email to Convergent that this has been completed.
15. This Agreement will be terminated where the Licensee has failed to comply with any of the terms of this Agreement or is in breach of this Agreement. On termination of this Agreement for any reason, the Licensee will promptly destroy all copies of the Software in their possession, and provide confirmation via email to Convergent that this has been completed.
16. For cloud or hosted applications, Subscriber agrees and acknowledges that Company has no obligation to retain Subscriber’s data and that Subscriber’s data may be irretrievably deleted at the end of the Test and Evaluation period.
17. Provisions that survive termination or expiration of the Agreement are those relating to the absence of warranty, limitation of liability, indemnity, and others which by their nature are intended to survive.
18. By virtue of the Agreement, the Parties may have access to information that is confidential to one another (“Confidential Information”). Parties agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential Information shall be limited to the terms under the Agreement, Licensee’s data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.
19. A Party’s Confidential Information shall not include information that:
a) is or becomes a part of the public domain through no act or omission of the other Party;
b) is independently developed by the other Party;
c) is lawfully disclosed to the other Party by a third party without restriction on the disclosure; or
d) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party.
20. Parties agree to hold each other’s Confidential Information in confidence for a period of three years from the date of disclosure. Also, Parties agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under this Agreement.
21. Nothing in this Agreement will prohibit the receiving Party from developing, or having developed for it, products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information. provided that the receiving Party does not violate any of its obligations under this Agreement in connection with such development.
22. If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Agreement.
23. The Agreement may not be modified and the rights and restrictions may not be altered or waived except in writing, signed or expressly accepted via email by authorized representatives of Licensee and of Company.
24. Neither Party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; an act of God; an electrical, internet, or telecommunication outage that is not caused or can be reasonably mitigated or prevented by the obligated party; government restrictions (including the denial or cancellation of any export or other license); and/or other event outside the reasonable control of the obligated Party.
25. Company is an independent contractor and Parties agree that no partnership, joint venture, or agency relationship exists between them. Each Party will be responsible for paying its own employees, including employment related taxes and insurance.
26. Company reserves the right to provide the services from locations and/or through use of subcontractors worldwide.
27. This Agreement shall be construed in accordance with the laws of Alberta and Canada, as applicable therein, without regard to any conflict of law provisions that would result in application of any other law. Any dispute arising under this Agreement shall be resolved exclusively by the court(s) located in Alberta, Canada.
28. Company may compile statistical information related to the performance of the services and may make such information publicly available, provided that such information does not incorporate Licensee’s data and/or identify Licensee’s Confidential Information or include Licensee’s company’s name. Company retains all intellectual property rights in such information but shall share all such data with Licensee upon request at no additional cost or expense to Licensee.
29. Licensee agrees that the Agreement (including the information which is incorporated into the Agreement by written reference) is the complete agreement for the Test and Evaluation period. This agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding the Test and Evaluation of Company Software.
30. All notices to the Company under this Agreement are to be provided at the following address:
Convergent Information Systems, Suite 200, 601-10th Avenue SW, Calgary, AB T2R 0B2