SynMatrix

End User License Agreement (July 6, 2023)

End user license agreement

^{[Published on July 6, 2023]}

Please read this EULA carefully, as it sets out the basis upon which we license the Software for use.

By clicking "accept agreement" when you first install the Software, you agree to be bound by the provisions of this EULA. If you do not agree to be bound by the provisions of this EULA, you must click "reject agreement" during the installation process and promptly return the Software (on the media upon which the Software was provided) to your supplier.

By agreeing to be bound by this EULA, you further agree that your employees OR any person you authorise to use the Software will comply with the provision of this EULA.

1.       Definitions

1.1    In this EULA:

"Charges" means those amounts that the parties have agreed in writing shall be payable by the User to the Licensor in respect of this EULA;

"Documentation" means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the User;

"Effective Date" means the date upon which the User gives the User's express consent to this EULA, following the issue of this EULA by the Licensor;

"EULA" means this end user license agreement, including any amendments to this end user license agreement from time to time;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Licensor" means SynMatrix Technologies Inc., a company incorporated in Ontario having its registered office at 120 West Beaver Creek Rd., Unit 13, Richmond Hill, ON. Canada L4B 1L2

"Maintenance Services" means the application to the Software of Updates and Upgrades;

"Minimum Term" means, in respect of this EULA, the period of 12 months beginning on the Effective Date;

"Services" means any services that the Licensor provides to the User, or has an obligation to provide to the User, under this EULA;

"Software" means the SynMatrix Design and Test Tuning Software Platform and related services installed on a local computer;

"Software Defect" means a defect, error or bug in the Software having a material adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:

(a)    any act or omission of the User or any person authorised by the User to use the Software;

(b)    any use of the Software contrary to the Documentation by the User or any person authorised by the User to use the Software;

(c)    a failure of the User to perform or observe any of its obligations in this EULA; and/or

(d)    an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification

"Software Specification" means the specification for the Software set out in the Documentation;

"Source Code" means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;

"Support Services" means support in relation to the use of the Software and the identification and resolution of material Software Defects, but shall not include the provision of training services whether in relation to the Software or otherwise;

"Term" means the term of this EULA, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

"Update" means a hotfix, patch or minor version update to the Software;

"Upgrade" means a major version upgrade of the Software;

"User" means the person to whom the Licensor grants a right to use the Software under this EULA; and

2.       Term

2.1    This EULA shall come into force upon the Effective Date.

2.2    This EULA shall continue in force indefinitely, subject to termination in accordance with Clause 14 or any other provision of this EULA.

3.       License

3.1    The Licensor hereby grants to the User from the date of supply of the Software to the User until the end of the Term a worldwide, non-exclusive license to:

(a)    install a single instance of the Software;

(b)    use a single instance of the Software in accordance with the Documentation; and

(c)    create, store and maintain up to 1 back-up copy of the Software,

        subject to the limitations and prohibitions set out and referred to in this Clause 3.

3.2    The User may not sub-license and must not purport to sub-license any rights granted under Clause 3.1 without the prior written consent of the Licensor.

3.3    Save to the extent expressly permitted by this EULA or required by applicable law on a non-excludable basis, any license granted under this Clause 3 shall be subject to the following prohibitions:

(a)    the User must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;

(b)    the User must not alter, edit or adapt the Software; and

(c)    the User must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software.

3.4    The User shall be responsible for the security of copies of the Software supplied to the User under this EULA (or created from such copies) and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this EULA.

4.       Source Code

4.1    Nothing in this EULA shall give to the User or any other person any right to access or use the Source Code or constitute any license of the Source Code.

5.       Maintenance Services

5.1    The Licensor shall provide the Maintenance Services to the User during the Term.

5.2    The Licensor shall provide the Maintenance Services with reasonable skill and care.

5.5    The Licensor may suspend the provision of the Maintenance Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least 3 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

5.7    If the Licensor stops or makes a good faith decision to stop providing maintenance services in relation to the Software to its customers generally, then the Licensor may terminate the Maintenance Services by giving at least 3 days' written notice of termination to the User.

5.8    If the Maintenance Services are terminated in accordance with the provisions of this Clause 5:

(a)    the User must pay to the Licensor any outstanding Charges in respect of Maintenance Services provided to the User before the termination of the Maintenance Services;

(c)    the provisions of this Clause 5, excluding this Clause 5.8, shall cease to apply, but the other provisions of this EULA will continue notwithstanding such termination.

6.       Support Services

6.1    The Licensor shall provide the Support Services to the User during the Term.

6.2    The Licensor shall provide the Support Services with reasonable skill and care.

6.3    The Licensor may suspend the provision of the Support Services if any amount due to be paid by the User to the Licensor under this EULA is overdue, and the Licensor has given to the User at least 3 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

6.5    If the Support Services are terminated in accordance with the provisions of this Clause 6:

(a)    the User must pay to the Licensor any outstanding Charges in respect of Support Services provided to the User before the termination of the Support Services;

(c)    the provisions of this Clause 6, excluding this Clause 6.5, shall cease to apply, but the other provisions of this EULA will continue notwithstanding such termination.

7.       No assignment of Intellectual Property Rights

7.1    Nothing in this EULA shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the User, or from the User to the Licensor.

8.       Charges

8.1    The User shall pay the Charges to the Licensor in accordance with this EULA.

8.2    All amounts stated in or in relation to this EULA are, unless the context requires otherwise, exclusive of any applicable value added taxes, which will be added to those amounts and payable by the User to the Licensor.

9.       Payments

9.1    The Licensor shall issue an invoice for the Charges to the User.

9.2    The User must pay the Charges to the Licensor in advance following the issue of an invoice in accordance with this Clause 9.

9.3    The User must pay the Charges by debit card, credit card, direct debit, bank transfer or cheque (using such payment details as are notified by the Licensor to the User from time to time).

9.4    If the User does not pay any amount properly due to the Licensor under this EULA, the Licensor may:

(a)    charge the User interest on the overdue amount at the rate of 8% per annum above the Bank of Canada base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b)    claim interest and statutory compensation from the User pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

10.    Warranties

10.1  The Licensor warrants to the User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

10.6  The User warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.

10.7  All of the parties' warranties and representations in respect of the subject matter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.

11.    Acknowledgements and warranty limitations

11.1  The User acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.

11.2  The User acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this EULA, the Licensor gives no warranty or representation that the Software will be entirely secure.

11.3  The User acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.

11.4  The User acknowledges that the Licensor will not provide any legal, financial, accountancy or taxation advice under this EULA or in relation to the Software; and, except to the extent expressly provided otherwise in this EULA, the Licensor does not warrant or represent that the Software or the use of the Software by the User will not give rise to any legal liability on the part of the User or any other person.

13.    Limitations and exclusions of liability

13.1  Nothing in this EULA will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence;

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)    limit any liabilities in any way that is not permitted under applicable law; or

(d)    exclude any liabilities that may not be excluded under applicable law,

        and, if a party is a consumer, that party's statutory rights will not be excluded or limited by this EULA, except to the extent permitted by law.

13.2  The limitations and exclusions of liability set out in this Clause 13 and elsewhere in this EULA:

(a)    are subject to Clause 13.1; and

(b)    govern all liabilities arising under this EULA or relating to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this EULA.

13.3  The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.

13.4  The Licensor will not be liable to the User in respect of any loss of profits or anticipated savings.

13.5  The Licensor will not be liable to the User in respect of any loss of revenue or income.

13.6  The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.

13.7  The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.

13.8  The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.

13.9  The liability of the Licensor to the User under this EULA in respect of any event or series of related events shall not exceed the total amount paid and payable by the User to the Licensor under this EULA in the 12 month period preceding the commencement of the event or events.

13.10 The aggregate liability of the Licensor to the User under this EULA shall not exceed the total amount paid and payable by the User to the Licensor under this EULA in the 12 month period preceding the commencement of the event or events.

14.    Termination

14.1  The Licensor may terminate this EULA by giving to the User not less than 30 days' written notice of termination, expiring after the end of the Minimum Term.

14.2  The User may terminate this EULA by giving to the Licensor not less than 30 days' written notice of termination, expiring after the end of the Minimum Term.

14.3  Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a)    the other party commits any material breach of this EULA, and the breach is not remediable;

(b)    the other party commits a material breach of this EULA, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(c)    the other party persistently breaches this EULA (irrespective of whether such breaches collectively constitute a material breach).

14.4  Either party may terminate this EULA immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)     is dissolved;

(ii)    ceases to conduct all (or substantially all) of its business;

(iii)    is or becomes unable to pay its debts as they fall due;

(iv)   is or becomes insolvent or is declared insolvent; or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up; or

(d)    if that other party is an individual:

(i)     that other party dies;

(ii)    as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)    that other party is the subject of a bankruptcy petition or order.

14.5  The Licensor may terminate this EULA immediately by giving written notice to the User if:

(a)    any amount due to be paid by the User to the Licensor under this EULA is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b)    the Licensor has given to the User at least 30 days' written notice, following the failure to pay, of its intention to terminate this EULA in accordance with this Clause 14.5.

15.    Effects of termination

15.1  Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 9.2, 9.4, 13, 15, 16 and 17.

15.2  Except to the extent that this EULA expressly provides otherwise, the termination of this EULA shall not affect the accrued rights of either party.

16.    General

16.1  No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.

16.2  This EULA shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to any principles of conflicts of law, and shall be treated in all respects as an Ontario contract.

17.    Interpretation

17.1  In this EULA, a reference to a statute or statutory provision includes a reference to:

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

17.2  The Clause headings do not affect the interpretation of this EULA.

17.3  References in this EULA to "calendar months" are to the 12 named periods (January, February and so on) into which a year is divided.

17.4  In this EULA, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.