SynMatrix

Software License Agreement (April 27 2021)

­­Software Licence Agreement

(Web Version April 27, 2021)

Licensor and Licensee shall execute a Licence Form referencing and incorporating by reference this Software Licence Agreement (“Agreement”) in each instance in which Licensee licences Program(s) from Licensor. By signing a Licence Form, each party has caused this agreement to be executed by its duly authorized representatives and agrees to be bound by the terms and conditions of this Agreement.

1.       Definitions

1.1     In this Agreement:

"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;

"Business Day" means any weekday other than a bank or public holiday in Ontario, Canada;

"Business Hours" means the hours of 09:00 to 17:00 EST on a Business Day;

"Channel Partner” means Licensor’s Affiliate or an unaffiliated business entity that is authorized by Licensor to distribute and/or support Program(s);

"Charges" means the following amounts:

(a)      the amounts specified in the Quotation; and

(b)      such amounts as may be agreed by the parties in writing from time to time;

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

"Effective Date" means the date of execution of this Agreement;

"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, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

“Licence Form” means any document referencing this Agreement which (i) is signed by the Licensor and Licensee, and (ii) incorporates the terms and conditions set forth herein. Each Licence Form will be treated as a separate agreement;

“Licence Key” means a software licensing management and security tool or other device that Licensor uses to allow Licensee access to the Program and which may have an expiration date;

"Program" means, the software referenced in the Quotation, any accompanying documentation, and any Technical Enhancements to such Software;

“Quotation” means Licensor's or the Channel Partner's proposal identified in the License Form that contains no less than the Program(s) to be licensed, the number of licenses or Named Users, and the license and/or STECS fees;

"Schedule" means any schedule attached to the main body of this Agreement;

"Software" means the software identified and signed on the Quotation;

"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 Licensee or any person authorized by the Licensee to use the Software;

(b)      any use of the Software contrary to the Documentation by the Licensee or any person authorized by the Licensee to use the Software;

(c)      a failure of the Licensee to perform or observe any of its obligations in this Agreement; 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 Quotation and in the Documentation, as it may be varied by the written agreement of the parties from time to time;

“STECS” or “SynMatrix Technical Enhancements and Customer Support” means the services described in Schedule 1; and

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

2.       Term

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

2.2     This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 11 or any other provision of this Agreement.

3.       Supply of Software

3.1     The Licensor shall deliver [1] copy of the Software to the Licensee within the period of 15 Business Days following the Effective Date.

3.2     Licensor will provide Licensee access to the Program(s) via Licence Key, which will permit use of the Program(s) on one (1) such computer at a time. Licence Keys may limit the Program use and require Licensee to obtain new Licence Keys from time to time. For periods in which Licensee is entitled to receive STECS for a Program, Licensor may charge an additional fee if Licensor agrees to provide replacement Licence Keys during STECS period or during periods in which Licensee is not entitled to receive STECS.

4.       Licence

4.1     Upon execution of the Licence Form, subject to the terms and conditions therein and in this Agreement, The Licensor hereby grants to the Licensee from the date of supply of the Software to the Licensee a perpetual, worldwide, non-exclusive licence to:

(a)      install a single instance of the Software;

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

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

(d)      fix, patch, improve, integrate, update and upgrade the Software, and create new versions of the Software,

          subject to the limitations and prohibitions set out and referred to in this Clause 4.

4.2     The Licensee may not sub-license and must not purport to sub-license any rights granted under Clause 4.1 without the prior written consent of the Licensor.

4.4     The Software may only be used by the officers and employees of the Licensee.

4.5     Save to the extent expressly permitted by this Agreement or required by applicable law on a non-excludable basis, any licence granted under this Clause 4 shall be subject to the following prohibitions:

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

(b)      the Licensee must not alter, edit or adapt the Software or Licence Key; and

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

4.6     The Licensee shall be responsible for the security of the Licence Key and copies of the Software supplied to the Licensee under this Agreement and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies and Licence Key is restricted to persons authorised to use them under this Agreement.

5.       No assignment of Intellectual Property Rights

5.1     Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the Licensee, or from the Licensee to the Licensor.

6.       Charges

6.1     The Licensee shall pay the Charges to the Licensor in accordance with this Agreement.

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

7.       Payments

7.1     The Licensor shall issue invoices for the Charges to the Licensee on the Effective Date.

7.2     The Licensee must pay the Charges to the Licensor within the period of 30 days following the issue of an invoice in accordance with this Clause 7.

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

7.4     If the Licensee does not pay any amount properly due to the Licensor under this Agreement, the Licensor may charge the Licensee interest on the overdue amount at the rate of 2% 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).

8.       Warranties

8.1     The Licensor warrants to the Licensee that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

8.2     The Licensor warrants to the Licensee that:

(a)      the Software as provided will conform in all material respects with the Software Specification;

(b)      the Software will be supplied free from Software Defects and will remain free from Software Defects for the longer of ninety (90) days following the supply of the Software, or for the period during which Licensee has purchased STECS for the Software.

8.3     The Licensor warrants to the Licensee that the Software, when used by the Licensee in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under Canadian law.

8.4     The Licensor warrants to the Licensee that the Software, when used by the Licensee in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

8.5     If the Licensor reasonably determines, or any third party alleges, that the use of the Software by the Licensee in accordance with this Agreement infringes any person's Intellectual Property Rights, the Licensor may acting reasonably at its own cost and expense:

(a)      modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification; or

(b)      procure for the Licensee the right to use the Software in accordance with this Agreement.

8.6     The Licensee warrants to the Licensor that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

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

9.       Acknowledgements and warranty limitations

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

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

9.3     The Licensee 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.

10.     Limitations and exclusions of liability

10.1   Nothing in this Agreement 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.

10.2   The limitations and exclusions of liability set out in this Clause 10 and elsewhere in this Agreement:

(a)      are subject to Clause 10.1; and

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

10.5   Neither party shall be liable to the other party in respect of any loss of use or production.

10.6   Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

10.8   Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

10.9  The liability of each party to the other party under this Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Licensee to the Licensor under this Agreement in the 12 month period preceding the commencement of the event or events.

10.10 The aggregate liability of each party to the other party under this Agreement shall not exceed the total amount paid and payable by the Licensee to the Licensor under this Agreement.

11.     Termination

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

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

(b)      the other party commits a material breach of this Agreement, 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 Agreement (irrespective of whether such breaches collectively constitute a material breach).

11.4   Either party may terminate this Agreement 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;

11.5   The Licensor may terminate this Agreement immediately by giving written notice to the Licensee if:

(a)      any amount due to be paid by the Licensee to the Licensor under this Agreement 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 Licensee at least 30 days written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 11.5.

12.     Effects of termination

12.1   Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 7.2, 7.4, 10, 12, 13 and 14.

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

12.3   Within 10 Business Days following the termination of this Agreement, the Licensee shall:

(a)      return to the Licensor or dispose of as the Licensor may instruct all media and devices in its possession or control containing the Software; and

(b)      irrevocably delete from all computer systems in its possession or control all copies of the Software,

          and if the Licensor so requests the Licensee shall procure to the Licensor, in a written document signed by that person and provided to the Licensor within 5 Business Days following the receipt of the Licensor's request, that the Licensee has fully complied with the requirements of this Clause 12.3.

13.     General

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

13.2   If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

13.3   This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

13.4   Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.

13.5   This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

13.6   Subject to Clause 10.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

13.7   This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada.

13.8   The courts of Ontario, Canada shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

14.     Interpretation

14.1   In this Agreement, 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.

14.2   The Clause headings do not affect the interpretation of this Agreement.

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

14.4   In this Agreement, 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.

SCHEDULE 1 – SYnMatrix Technical Enhancements Customer Support (STECS)

STECS will consist of (i) reasonable telephone, e-mail or web-based support respecting the use of the Program(s) ("Customer Support"); and (ii) Program releases or corrections provided by Licensor without additional charge to STECS customers generally ("Technical Enhancements"). Customer Support will be provided by Licensor, its Affiliate or Channel Partner (as applicable). Technical Enhancements will be provided by Licensor at such times as determined solely by Licensor.

Installation support will be provided without charge for thirty (30) days from the Effective Date of Program. Licensor or Channel Partner will provide STECS. Except as set forth below, at the end of the then-current STECS period, STECS will automatically renew at the prior year’s STECS rate plus an increase consistent with the increase in the price of the associated Program(s) for a renewal term of a like duration. STECS will not renew if Licensee, Channel Partner, or Licensor gives prior notice of its intent to not renew. Licensee shall be deemed to have provided notice not to renew if Licensee does not issue a purchase order to Licensor or the Channel Partner for STECS prior to the expiration of the then-current STECS period. Licensor and Channel Partner shall be deemed to have provided notice not to renew if Licensor or Channel Partner does not provide a renewal Quotation for STECS prior to the expiration of the then-current STECS period. STECS that does not automatically renew but that is purchased in the same configuration within three (3) months of the expiration date of the last STECS period shall not require a new License Form to be signed for such STECS as the terms of this Agreement will be deemed to continue to apply from the new start date of such STECS. Except as specifically set forth in this Agreement, if STECS is terminated prior to the end of the term, Licensee shall not be entitled to any refund for any portion of the prepaid STECS fee.

STECS only provides Customer Support for the Software specified in the Quotation. STECS does not provide Customer Support for any Ansys software or any other third-party software.

Licensor and the Channel Partner have no obligation to provide STECS: (i) for other than the two most recent commercially available releases of each Program(s); (ii) for any Program(s) that have been altered, damaged or modified by Licensee or on Licensee’s behalf; (iii) for any applications, models or other customizations provided by Licensor or Channel Partner as part of a consulting services engagement; or (iv) for any problems caused by Licensee’s negligence or use of the Program(s) other than in accordance with the Manual and this Agreement.

If STECS on a Program license is discontinued by Licensee for more than three (3) months, Licensor shall have no obligation to permit reinstatement of STECS on such Program license. Except as otherwise agreed between the parties, Licensor’s election to permit reinstatement shall be subject to Licensor’s then-current STECS reinstatement policy.

For Named User Licenses, Customer Support will be provided to Licensee and its Affiliates at their locations specified in the Quotation.