Article 1: Interpretation

1.1 Definitions

• “Affiliate” will mean any affiliated entity, which Controls, is Controlled by, or is under common Control with Customer.
• “Confidential Information” will mean non-public, commercially sensitive information of each of the parties and, in the case of Scican, the Scican Software Product, Updates, Documentation, and all Scican information which is marked as confidential or proprietary at the time of disclosure.
• “Control” will mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of an entity through the ownership of voting securities (at least fifty-one percent (51%) of its voting or equity securities), contract, voting trust, or otherwise.
• “Documentation” will mean the user manuals relating to the use of the Scican Software Product and the Scican Equipment delivered with the Scican Equipment. x
• “Scican Licensors” will mean third parties which have granted Scican distribution rights with respect to their software.
• “Updates” will mean modifications made by Scican to the Scican Software Product that Scican generally makes available at no additional charge to its customers who are current subscribers for support services and who are current in payment of support services fees, if any. Updates become part of the Scican Software Product for purposes of this Agreement.

ARTICLE 2: License

2.1 License Grant

Subject to the terms and conditions of this Agreement, Scican grants Customer a perpetual, fully paid, non-exclusive, and non-transferable license to use the Scican Software Product, solely at Customer’s site, solely in connection with the operation of the Scican Equipment for Customer’s internal business purposes.

ARTICLE 3: License Restrictions

3.1 Restrictions

Except as expressly authorized herein, Customer will not engage in or permit any:

• copying or modification of the Scican Software Product or Documentation;
• reverse engineering, decompilation, translation, disassembly, or discovery of the source code of all or any portion of the Scican Software Product;
• distribution, disclosure, marketing, rental, leasing or service bureau use or transfer to any third party of the Scican Software Product or the Documentation, except as part and parcel of the sale of the Scican Equipment containing the Scican Software Product;
• disclosure of the results of Scican Equipment or Scican Software Product performance benchmarks to any third party without Scican’s prior written consent; or
• disclosure of any source code (if any) provided hereunder to any third party.

ARTICLE 4: Updates

4.1 Updates

• Provided Customer has opened an account and provided all requested information to Scican, and, if applicable, paid the associated fees for Updates, Scican will provide Updates for the Scican Software Product in accordance with Scican’s Update policies and procedures of general application. Prior to discontinuing Updates for the Scican Software Product, Scican will provide Customer with at least six (6) months advance notice. Customer will allow Scican to use remote access software to aid in the resolution of problems or questions. Update fees, if any, will be billed on an annual basis payable in advance.
• Scican will have no obligation to provide Updates or assistance if Customer fails to make any required payment or otherwise elects to discontinue Update services. In order to reinstate or renew support services, Customer must first pay Scican the then current annual Updates services fee and all past unpaid Updates services fees and agree that all past Updates will be loaded on the Scican Equipment.
• Scican will have no obligation to provide Updates for any (i) altered, damaged or modified Scican Equipment or Scican Software Product, (ii) Scican Software Product that is not the then current or previous sequential release, (iii) Scican Software Product problems caused by Customer’s negligence or other causes beyond the control of Scican, or (iv) a failure that cannot be reproduced at Scican’s facility or via remote access to the Customer’s facility.

ARTICLE 5: Ownership

5.1 Ownership

Scican retains all right, title and interest in the Scican Software Product, Updates, and Documentation and any copies thereof. Except as otherwise expressly granted in this Agreement, no license, right or interest in any Scican trade mark, copyright, trade name or service mark is granted hereunder.

ARTICLE 6: Patent and Copyright Indemnity

6.1 Scican Indemnity

Scican will defend and indemnify Customer for all costs (including reasonable attorney fees) arising from a claim that Scican Software Product furnished and used within the scope of this Agreement infringes a registered copyright or patent provided that:

• Customer notifies Scican in writing within thirty (30) days of the claim;
• Scican has sole control of the defense and all related settlement negotiations, and
• Customer provides Scican with the assistance, information, and authority necessary to perform the above
  
  

Reasonable expenses incurred by Customer in providing such assistance will be reimbursed by Scican.

6.2 Exception

Scican will have no liability for any claim of infringement based on:

• use of a superseded or modified release of the Scican Software Product (except for such alterations or modifications which have been made by Scican or under Scican’s direction) if such infringement would have been avoided by the use of a current unaltered release of the Scican Software Product; or
• the combination, operation, or use of the Scican Software Product with hardware, programs or data not furnished or otherwise approved by Scican if such infringement would have been avoided by the use of the Scican Software Product without such hardware, programs or data.

6.3 Scican’s Obligation

In the event the Scican Software Product is held or believed by Scican to infringe, or Customer’s use of the Scican Software Product is enjoined, Scican will have the option, at its expense, to:

• modify the Scican Software Product to be non-infringing; or
• obtain for Customer a license to continue using the Scican Software Product; or
• substitute the Scican Software Product with other software reasonably suitable to operate the Scican Equipment; or
• if none of the foregoing remedies are commercially feasible, terminate the license for the infringing Scican Software Product and refund the price of the affected Scican Equipment, prorated over a five-year term calculated from the Effective Date.

6.4 Entire Liability for Infringement

This Article 6 states Scican’s entire liability for infringement or misappropriation of intellectual property rights.

ARTICLE 7: Warranty

7.1 Warranty

Scican warrants that it has title to and/or the authority to grant licenses of the Scican Software Product. Customer’s exclusive remedy with respect to breach of this provision will be pursuant to Article 6 (Patent and Copyright Indemnity).

7.2 Functionality

Scican warrants for a period of ninety (90) days from the Effective Date that the Scican Software Product, unless modified by Customer and provided that all Updates have been installed, will perform, in all material aspects, the functions described in the Documentation when operated on the related Scican Equipment.

7.3 Services

Scican reserves the right to charge Customer for services performed by Scican in connection with reported failures which are later determined to be caused by operator error, untrained users, site electrical malfunction, software or hardware not supplied or recommended by Scican or by alterations or additions to the Scican Equipment or the Scican Software Product other than by way of Updates or by persons other than Scican employees or consultants.

7.4 DISCLAIMER

THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABLE QUALITY, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

ARTICLE 8: LIMITATION of LIABILITY

8.1 LIMITED LIABILITY

EXCEPT AS PROVIDED IN Article 6 (PATENT AND COPYRIGHT INDEMNITY), SCICAN’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT PAID BY LICENSEE TO SCICAN FOR THE SCICAN EQUIPMENT IN CONNECTION WITH WHICH THE CLAIM AROSE. IN NO EVENT WILL SCICAN BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SCICAN LICENSORS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION WHETHER BASED IN CONTRACT, TORT, OR ANY LEGAL THEORY. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK WHICH IS SET FORTH IN THIS SECTION 8.1.

ARTICLE 9: Confidentiality

9.1 Maintain Confidentiality

By virtue of the account with Scican that the Customer will open for purposes of registering the Scican Equipment and obtaining Updates, Scican will obtain and possess Confidential Information and personal information relating to the Customer. Customer information that Scican obtains does not include local area network (“LAN”) topology or information about other devices connected to the LAN. Personal information that Scican obtains will include the names of persons to whom emails may be sent by Scican respecting the functioning of the Scican Equipment and the Updates. Each of the parties acknowledges to the other that by virtue of their licensing and Update services relationship it may have access to Confidential Information of the other party. The parties agree, both during the term of this Agreement and after termination, to hold each other’s Confidential Information in confidence. The Scican Software Product shall be treated as confidential in perpetuity. The parties agree not to make each other’s Confidential Information available in any form to any third party (other than those of its employees or consultants under nondisclosure obligations) or to use each other’s Confidential Information for any purpose other than as contemplated by this Agreement. Each party will take commercially reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or consultants in violation of the provisions of this Article 9. The parties agree that the terms and conditions of this Agreement are considered confidential.

9.2 Exception

Notwithstanding any provision contained in this Agreement, neither party will be required to maintain in confidence any of the following information:

• information which, at the time of disclosure to the receiving party, is in the public domain;
• information which, after disclosure, becomes part of the public domain, except by breach of this Agreement;
• information which was in the receiving party’s possession at the time of disclosure, and which was not acquired, directly or indirectly, from the disclosing party;
• information which the receiving party can demonstrate resulted from its own research and development, independent of disclosure from the disclosing party;
• information which the receiving party receives from third parties, provided such information was not obtained by such third parties from the disclosing party on a confidential basis; or
• information which is produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.
  
  

ARTICLE 10: General

10.1 Law and Venue

This Agreement will be governed and construed under the laws of the Province of Ontario and the applicable federal laws of Canada. In no event will this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods.

10.2 Notices

All notices will be in writing and sent by first class mail, overnight courier, or transmitted by facsimile and confirmed by mailing, to the addresses indicated on the first page of this Agreement, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party. Notices to Scican will be sent to the [Contract Manager]. Notice will be deemed to have been given upon personal delivery (in the case of overnight courier or facsimile) or five (5) business days after being sent by first class mail or on the next business day if sent by facsimile.

10.3 Assignment

Customer may not assign this Agreement (by operation of law or otherwise) or sublicense the Scican Software Product without the prior written consent of Scican. Customer may, however, sell or otherwise dispose of the Scican Equipment with the Scican Software Product loaded onto its internal operating system. Customer acknowledges that no Upgrades will be available for any equipment that is sold or disposed of unless the purchaser or recipient opens an account for Upgrades with Scican and pays the appropriate fees. Any prohibited assignment or sublicense of the Scican Software Product will be null and void. The foregoing notwithstanding, upon written notice to Scican, Customer may assign, or otherwise transfer this Agreement to an Affiliate of Customer, provided such Affiliate agrees with Scican to be bound by the terms and conditions of this Agreement.

10.4 Legal Costs

If any legal action, including arbitration, is required in order to enforce or interpret any of the provisions of this Agreement, the prevailing party in such action will recover all reasonable costs and expenses, including attorney’s fees, incurred in connection therewith.

10.5 Extraordinary Relief

Each party acknowledges that any breach of its obligations with respect to the proprietary rights of the other party or such party’s licensors may cause such other party irreparable injury for which there may be inadequate remedies at law and that such other party and its licensors will be entitled to injunctive relief, in addition to all other remedies available to it.

10.6 Headings

The article and section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement.

10.7 Force Majeure

Neither party will be liable for any failure to perform due to causes beyond its reasonable control.

10.8 Severability

If any provision of this Agreement is held to be unenforceable, the parties will substitute for the affected provision an enforceable provision, which approximates the intent and economic effect of the affected provision.

10.9 Non-Waiver

The failure by a party to exercise any right hereunder will not operate as a waiver of such party’s right to exercise such right or any other right in the future.

10.10 Amendment

This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties.

10.11 Exclusive Agreement

This Agreement replaces and supersedes any prior verbal understandings, written communications or representations.