Software License Agreement
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evolutionQ Software License Agreement
This SOFTWARE LICENSE AGREEMENT is made as of [●] (the "Effective Date") between evolutionQ Inc., a corporation located at 180 Columbia Street West, Waterloo, Ontario, Canada, N2L 3L3 (“evolutionQ”), and [NTD: Counterparty: select legal entity - corporation/ limited liability company /partnership] located at [●] (“Licensee”, and together with evolutionQ, the “Parties”, and each, a “Party”). [NTD: Insert counterparty address]
In consideration of the mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows:
1. DEFINITIONS
“Agreement” means this agreement, including any exhibits and schedules and all Orders hereunder.
“Applicable Law” means all federal, provincial, municipal, and local laws, ordinances, regulations, rules, by-laws, and orders that are applicable to this Agreement.
“Claim” means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand.
“Confidential Information” has the meaning ascribed to it in Section 11.
“Documentation” means any manuals, instructions, technical documentation and other documents and materials that evolutionQ provides or makes available to Licensee in any form or medium which describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Endpoint” means any physical or virtual device, such as, a computer, server, laptop, desktop computer, mobile, cellular, container or virtual machine image.
“End User” means any individual or entity that is permitted by the Licensee to use the Software in accordance with this Agreement.
"End User License Agreement" means the end user license agreement which the Licensee will require any and all End Users to sign prior to granting such End Users access to the Software, the details of which are set out in Sections 4.1 and 4.2 and Schedule A of this Agreement;
“evolutionQ Competitor” means a person or entity in the business of developing, distributing, or commercializing Internet security products or services substantially similar to or competitive with evolutionQ’s products or services.
“evolutionQ Data” means the data generated by the Software, including but not limited to, any correlative contextual data, and/or detections. For the avoidance of doubt, evolutionQ Data does not include Licensee Data. Any access to or use of evolutionQ Data through the Software is expressly limited to Licensee’s Internal Use.
“Metric Data” means any machine-generated data, such as metadata derived from tasks, file execution, commands, resources, network telemetry, executable binary files, macros, scripts, and processes, that: (a) Licensee provides to evolutionQ or (b) is collected or discovered through or during the use of the Software, excluding, in both (a) and (b) above, any such information or data that identifies Licensee.
“Expenses” means any expenses approved in writing in advance by Licensee.
“Fees” means the fees expressly set out in an Order.
“Intellectual Property” means any and all works fixed in any medium (including software and databases), embodied inventions, trade-secrets, Confidential Information, know-how, marks and logos, designs and all Intellectual Property Rights associated with same.
“Intellectual Property Rights” means any and all proprietary rights, on a world-wide basis, provided under: (a) patent law; (b) copyright law; (c) trademark law (including goodwill); (d) industrial design law; (e) any other statutory provision or common law principle applicable to this Agreement, including trade secret law, which may provide a right in any Intellectual Property or the expression or use thereof; and (f) any and all applications, registrations, licenses and agreements in relation to the foregoing.
“Internal Use” means access or use solely for Licensee’s own internal information security purposes. By way of example and without limitation, Internal Use does not include access or use: (a) for the benefit of any person or entity other than Licensee, or (b) in any event, for the development of any product or service. Internal Use is limited to access and use by Licensee’s employees or Third Party Providers for Licensee’s internal business purposes.
“Losses” means any and all damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments), costs and expenses (including interest, court costs, reasonable fees and expenses of lawyers, accountants and other experts and professionals and other reasonable fees and expenses of litigation, other proceedings, any Claim, default or assessment).
“Order” an order or proposal issued by evolutionQ for Software pursuant to and governed by this Agreement.
“Representatives” means, with respect to a Party, that Party’s and its affiliates’ employees, officers, directors, consultants, agents, independent contractors, subcontractors, service providers, advisors, or other representatives, including legal counsel, accountants, or financial advisors.
“Software” means software licensed by evolutionQ to Licensee pursuant to an Order that Licensee or a Third Party Provider have installed or used on Licensee’s Endpoints, including any updates thereto and related Documentation that may be made available from time to time by evolutionQ. evolutionQ Software may commonly be referred to as the “BasejumpQDN”.
“Taxes” means all federal, state, provincial, territorial, county, municipal, local or foreign taxes, charges, fees, levies, imposts and other assessments.
“Threat Actor Data” means any malware, spyware, virus, worm, Trojan horse, or other potentially malicious or harmful code or files, URLs, DNS data, network telemetry, commands, processes or techniques, metadata, or other information or data, in each case that is potentially related to unauthorized third parties associated therewith and that: (a) Licensee provides to evolutionQ, or (b) is collected or discovered through or during the use of the Software, excluding any such information or data that identifies Licensee.
“Third Party Provider” means any individual or entity (other than a evolutionQ Competitor) that: (a) has access or use of the Software: (i) under this Agreement solely on behalf of and for Licensee’s Internal Use, or (ii) under a separate valid agreement with evolutionQ, (b) has an agreement to provide Licensee (or its affiliates) services, and (c) is subject to confidentiality obligations covering evolutionQ’s Confidential Information. A non-exhaustive list of examples of Third Party Providers are managed services providers, consultants or consulting firms providing incident response services.
“Licensee Data” means the data generated by the Licensee’s Endpoint and collected by the Software, but excluding Threat Actor Data or Metric Data. For the avoidance of doubt, Licensee Data does not include evolutionQ Data.
2. LICENCE AND RESTRICTIONS
2.1 Licence
Subject to the terms and conditions of this Agreement, and conditional on Licensee’s compliance therewith, evolutionQ hereby grants to Licensee a non-exclusive, non-sublicensable, revocable and non-transferable limited licence to use the Software and Documentation solely for the Licensee’s Internal Use during the Term up to the validly licensed quantity.
2.2 Restrictions
The rights set forth in 2.1 above do not include any rights to, and Licensee shall not: (i) employ or authorize a evolutionQ Competitor to use the Software or the Documentation, or to provide management, hosting, or support for Software; (ii) alter, publicly display, translate, create derivative works of or otherwise modify the Software; (iii) sublicense, distribute or otherwise transfer the Software to any third party; (iv) allow third parties to access or use the Software; (v) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software (except to the extent that such prohibition is expressly precluded by Applicable Law), circumvent its functions, or attempt to gain unauthorized access to evolutionQ’s hosted software or its related systems or networks; (vi) use the Software to circumvent the security of another party’s network or information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; (vii) remove or alter any notice of proprietary right appearing on the Software; (viii) conduct any stress tests, competitive benchmarking or analysis on, or publish any performance data of, the Software; (ix) bypass or breach any security device or protection used for or contained in the Software or Documentation; or (x) cause, allow, encourage or assist any third party to do any of the foregoing. evolutionQ Competitors or any other party with interests or intentions adverse to evolutionQ may not access, install or use the Software, evolutionQ Data or evolutionQ Confidential Information.
2.3 Third Party Software
evolutionQ uses certain third party software in its Software, including what is commonly referred to as open source software. Any use of the open source software by Licensee shall be governed by, and subject to, the terms and conditions of the applicable open source licenses. Under some of these third party licenses, evolutionQ is required to provide Licensee with notice of the licence terms and attribution to the third party. The licensing terms and attributions for such third party software that evolutionQ uses will be as set out in the applicable end user agreement.
3. LICENSEE OBLIGATIONS AND THIRD PARTY PROVIDERS
3.1 Licensee Obligations
Licensee represents and warrants that: (i) it owns or has a right of use from a third party, and controls, directly or indirectly, all of the software, hardware and computer systems (collectively, “Systems”) where the Software will be installed, (ii) to the extent required under Applicable Law, it has authorized evolutionQ to access the Systems and process and transmit data through the Software and any other evolutionQ offerings in accordance with this Agreement and as necessary to provide the Software and other services, (iii) it has a lawful basis in having the Software operate on the Systems, and collect and process the Licensee Data; (iv) that it is and will at all relevant times remain duly and effectively authorized to instruct evolutionQ to carry out the services related to the Software, and (v) it has made all necessary disclosures, obtained all necessary consents, rights and any government authorizations required under Applicable Law to permit the processing and transfer of Licensee Data from Licensee to evolutionQ to the extent Licensee does transfer or make such Licensee Data available to evolutionQ for processing.
3.2 Third Party Providers
Licensee is solely responsible for: (i) independently testing and validating any Third Party Provider products and services and the Software before deploying it or them in a test or production environment, (ii) evaluating whether using any Third Party Provider products or services are lawful under the laws that apply to Licensee or are permitted in Licensee’s jurisdiction, and (iii) paying for the Third Party Provider products and services and any claims that arise out of Licensee’s use of their products and services. Any breach by a Third Party Provider of this Agreement is a breach by Licensee. evolutionQ is not responsible or liable for any loss, costs or damages arising out of Third Party Provider’s actions or inactions in any manner, including but not limited to, for any disclosure, transfer, modification or deletion of Licensee Data. Whether or not a Third Party Provider is designated by evolutionQ as such, or otherwise claims to be “certified,” “authorized,” or similarly labeled, evolutionQ does not control, monitor, maintain or provide support for, Third Party Providers or their services or products. evolutionQ disclaims all warranties of any kind, and all indemnities, obligations, and other liabilities in connection with the Third Party Provider’s services and products, and any Third Party Provider interface or integration with evolutionQ’s products or services (including the Software).
4. END USER LICENSE AGREEMENT
4.1 End Users
The rights granted to the Licensee under this Agreement with respect to authorizing and sublicensing End Users to use the Software are subject to the Licensee requiring all End Users to be bound by the terms and conditions of the End User License Agreement prior to any End User being given any access to the Software. The Licensee hereby covenants and agrees that no End User will be granted access to the Software until it has agreed to be bound by the terms of the End User License Agreement. Licensee acknowledges and agrees that the End User License Agreement shall flow down to any End User the specific rights and obligations in favour of evolutionQ under this Agreement set out in Schedule A.
4.2 Enforcement of End User License Agreement
The Licensee shall diligently enforce the terms and conditions of each End User License Agreement that it enters to the fullest extent of the law. The Licensee shall promptly notify evolutionQ of any breach of this Agreement or an End User License Agreement that comes to the Licensee's attention.
5. EVOLUTIONQ USE OF DATA
5.1 Data Use
The Software uses evolutionQ Data, Threat Actor Data and Metric Data for the benefit of all users, to help users protect themselves against suspicious and potentially destructive activities. evolutionQ uses such data to: (i) analyze, characterize, attribute, warn of, and/or respond to threats against Licensee and other users, (ii) analyze trends and performance, (iii) improve the functionality of, and develop, evolutionQ’s products and services, and enhance cybersecurity; provided, however, that in all of the foregoing use cases, in a way that does not identify Licensee to other evolutionQ users (other than Licensee’s Third Party Providers). Neither Metric Data nor Threat Actor Data are Licensee’s Confidential Information or Licensee’s Intellectual Property. For greater certainty, Licensee Data is not required by evolutionQ in order to provide the license to the Software under this Agreement and License is not obligated to provide Licensee Data to evolutionQ.
6. FEES AND PAYMENT
6.1 Fees, Expenses and Other Charges
Licensee will pay the Fees set out in the applicable Order to evolutionQ in accordance with the other provisions of this Section 6.1. evolutionQ may increase the Fees annually upon prior written notice prior to the end of the Initial Term or then current Renewal Term.
6.2 Taxes
Each Party will be responsible for complying with their respective obligations, under Applicable Law, for the collection and payment of Taxes. Licensee is responsible for paying all sales, goods and services, harmonized sales and value-added Taxes incurred on the Fees. Licensee is not responsible for paying, collecting or withholding any employment, workers’ compensation, unemployment or social security taxes or contributions, franchise taxes, or taxes assessed on evolutionQ’s income or property.
6.3 Invoices and Payment.
evolutionQ will issue invoices to Licensee for the Software licensed to Licensee pursuant to each Order. Licensee shall pay all Fees and Expenses on each invoice within 30 days of receipt of invoice. If Licensee fails to make any payment when due, then, in addition to all other remedies that may be available, any amounts not paid within 30 days of the due date shall bear interest at a rate of 12% per annum.
7. NO WARRANTY
7.1 Disclaimer
THE SOFTWARE AND ALL OTHER EVOLUTIONQ OFFERINGS ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND. EVOLUTIONQ DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EVOLUTIONQ AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND ALL OTHER EVOLUTIONQ OFFERINGS. THERE IS NO WARRANTY THAT THE SOFTWARE OR ANY OTHER EVOLUTIONQ OFFERINGS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF LICENSEE’S PARTICULAR PURPOSES OR NEEDS. THE SOFTWARE AND ALL OTHER EVOLUTIONQ OFFERINGS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. NEITHER THE SOFTWARE OR ANY OTHER EVOLUTIONQ OFFERINGS ARE FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE. LICENSEE AGREES THAT IT IS LICENSEE’S RESPONSIBILITY TO ENSURE SAFE USE OF SOFTWARE AND ANY OTHER EVOLUTIONQ OFFERING IN SUCH APPLICATIONS AND INSTALLATIONS. EVOLUTIONQ DOES NOT PROVIDE ANY WARRANTIES RELATING TO ANY THIRD PARTY PRODUCTS OR SERVICES.
7.2 No Guarantee
LICENSEE ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT EVOLUTIONQ DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, DISCOVER, PREVENT OR WARN OF, ALL OF LICENSEE’S OR ITS AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, AND LICENSEE AND ITS AFFILIATES WILL NOT HOLD EVOLUTIONQ RESPONSIBLE THEREFOR.
8. LIMITATION OF LIABILITY
8.1 evolutionQ’s liability for all losses, damages or claims under this Agreement will be limited to the total Fees paid by Licensee in the previous twelve (12) month period.
8.2 Neither Party will be liable to the other Party for Losses attributable to special, indirect or consequential damages.
8.3 Sections 8.1 and 8.2 will not apply to limit: (a) the indemnity obligations of Licensee in Section 9.1; (b) the indemnity obligations of evolutionQ in Section 9.2; (c) the Licensee’s obligation to pay evolutionQ any amount owing under this Agreement; and (d) the liability of a party as a result of the gross negligence, willful misconduct, or fraud of such Party or those persons acting on its behalf.
9. INDEMNIFICATION
9.1 Indemnification by Licensee
Licensee shall indemnify, defend and hold harmless evolutionQ and its affiliates, and their respective directors, officers, employees, agents, representatives, shareholders, contractors, successors, and permitted assigns (collectively, the "evolutionQ Indemnitees") from and against any and all Losses sustained or incurred by evolutionQ Indemnitees arising out of or relating to any breach by Licensee of any of the provisions of this Agreement.
9.2 Intellectual Property Indemnification by evolutionQ
(1) Subject to the terms herein, evolutionQ will indemnify, defend and hold harmless Licensee, its affiliates and their respective directors, officers, employees, contractors and agents (collectively, the “Licensee Indemnitees”) from and against any and all Losses sustained or incurred by Licensee Indemnitees arising out of, or as a result of, or relating in any manner whatsoever to Claims of infringement or violation or misappropriation of Intellectual Property Rights of a third party arising from or relating to the use of the Software by a Licensee Indemnitee.
(2) If the use of the Software by any Licensee Indemnitees becomes subject to a Claim and the continued use of the Software by any of the Licensee Indemnitees is or is threatened to be enjoined, then evolutionQ will have the right, at its option and expense (subject to the conditions set forth herein):
(a) to substitute a materially equivalent product for the allegedly infringing portion of the Software, as applicable;
(b) to modify the allegedly infringing portion of the Software, as applicable, to make it non-infringing without any material loss of functionality or performance;
(c) to obtain the right for the Licensee to continue using the allegedly infringing portion of the Software, as applicable
(d) if none of the options set forth above can be completed by evolutionQ, in its sole discretion, then evolutionQ or Licensee may terminate the use of the infringing portion of the Software.
(3) The obligations of evolutionQ set out in Sections 9.2(1) and 9.2(2) will not apply to the extent that a Claim is: (i) based on the use by Licensee of the Software in a manner not permitted by this Agreement; (ii) for any Software that was developed in compliance with detailed technical specifications provided by Licensee; (iii) based on the modification of the Software by or on behalf of Licensee; (iv) based on the use of the Software in combination with any third party software or third party product where such combination was not authorized by evolutionQ.
9.3 Conditions for Indemnification
A Party seeking indemnification under this Section 9 shall (a) promptly notify the other Party of the Claim, (b) give the other Party sole control of the defense and settlement of the claim, and (c) provide, at the other Party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other Party in the defense and settlement of the Claim.
10. INTELLECTUAL PROPERTY
10.1 Intellectual Property Ownership
(1) Ownership. Licensee acknowledges and agrees that:
(a) the Software and Documentation are licensed, not sold, to Licensee by evolutionQ. Other than the limited license right granted to Licensee in Section 2.1 of this Agreement, Licensee does not and will not have or acquire under or in connection with this Agreement any interest, title or rights in the Software, Documentation, Metric Data or Threat Actor Data, or in any Intellectual Property Rights of evolutionQ;
(b) evolutionQ and its licensors are and will remain the sole and exclusive owners of all right, title, and interest in and to the Software, Documentation, Metric Data and Threat Actor Data, including all Intellectual Property Rights relating thereto, subject only to the limited Other than the limited license right granted to Licensee in Section 2.1 of this Agreement;
(c) except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Software, Documentation, Metric Data or Threat Actor Data; and
(d) any feedback or suggestions that Licensee provides to evolutionQ regarding the Software, Documentation or any evolutionQ products or services is non-confidential and may be used by evolutionQ for any purpose without acknowledgement or compensation.
(2) Licensee Data. As between Licensee and evolutionQ, Licensee is and will remain the sole and exclusive owner of all right, title and interest in and to all Licensee Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.1(2).
11. CONFIDENTIALITY
11.1 Confidentiality
(1) “Confidential Information” means any non-public or proprietary information of a Party (the “Disclosing Party”), regardless of form (oral, written, database or electronic), whether or not it is marked “confidential”, that is disclosed or made available to, or comes into the possession of, the other Party (the “Receiving Party”), either directly or indirectly, through any means of communication or by observation. Without limiting the generality of the foregoing, the Software and Documentation are the Confidential Information of evolutionQ. Confidential Information does not include: (i) information that is, or becomes, generally available to the public other than as a result of breach of this Agreement; (ii) information in the possession of the Receiving Party on a non-confidential basis prior to access or disclosure under this Agreement, as confirmed by documentary evidence; (iii) information independently developed by the Receiving Party without any use of, or reference to, the Confidential Information, as confirmed by documentary evidence; or (iv) information acquired in good faith from a third party, if such third party is not reasonably known by the Receiving Party to be prohibited from disclosing such information due to any obligation of confidence of any kind.
(2) Protection of Confidential Information. The Receiving Party will keep the Confidential Information confidential and not use, reproduce, disclose or allow access to, transfer or make available, any of the Confidential Information for any purpose other than as expressly permitted under Section 11.1(3) and 11.1(4) or as otherwise agreed to by the Disclosing Party in writing in advance. The Receiving Party will safeguard, protect and maintain the confidentiality and security of all Confidential Information using at least the degree of care it uses to protect its similarly sensitive confidential information and in no event less than a commercially reasonable degree of care. The Receiving Party will promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use its best efforts and cooperate with Disclosing Party to prevent further unauthorized use or disclosure.
(3) Permitted Disclosure. The Receiving Party may disclose Confidential Information to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 11; (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 11.1; and (iv) are not an evolutionQ Competitor.
(4) Compelled Disclosure. The Receiving Party may disclose Confidential Information to any person to the extent required by Applicable Law or compelled to do so by court order or other judicial process. Such disclosure will be subject to the restrictions of any applicable protective order and the Receiving Party shall, to the extent permitted by Applicable Law, do the following: (i) promptly give the Disclosing Party prior written notice of such disclosure; and (ii) use commercially reasonable efforts to provide the Disclosing Party with an opportunity to take action, if it desires, to challenge or contest such disclosure or seek a protective order.
12. COMPLIANCE WITH LAWS
12.1 Compliance with Laws
Licensee agrees to at all times comply with and use the Software in accordance with all Applicable Law. Without limiting the generality of the foregoing, Licensee shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licences, consents, and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement and comply with all police, fire, sanitary, health, insurance, and privacy orders and regulations imposed by any governmental, supervisory, or other relevant authority.
12.2 Compliance or Restrictions Breach
evolutionQ may, without any liability to Licensee, immediately terminate the this Agreement, or suspend evolutionQ’s performance hereunder, if: (a) evolutionQ has reason to believe that Licensee has breached Section 12.1,Section 2.1 or Section 2.2, or that a breach may occur, or (b) Licensee refuses to provide information requested by evolutionQ to confirm Licensee’s compliance with Section 12.1, Section 2.1 or Section 2.2.
12.3 Compliance Indemnity
Licensee agrees to indemnify, defend and hold harmless evolutionQ and its affiliates (and their respective officers, directors, employees, agents, subcontractors, successors, and assigns) from and against any Losses incurred by evolutionQ arising out of or relating to Licensee’s breach of Section 12.1.
13. TERM AND TERMINATION
13.1 Initial Term
The initial term of this Agreement commences as of the Effective Date and will continue in effect until one (1) year from such date unless terminated earlier under any of the Agreement’s express provisions (the “Initial Term”).
13.2 Renewal Term
This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated under any of the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 60 days before the expiration of the then-current term (each, a “Renewal Term” and together with the Initial Term, the “Term”).
13.3 Suspension for Non-Payment
evolutionQ may immediately suspend Licensee’s access to, or use of, the Software if Licensee fails to timely pay any amounts due to evolutionQ under this Agreement, but only after evolutionQ notifies Licensee of such failure and such failure continues for 15 days. Suspension of Licensee’s access to, or use of, the Software shall not release Licensee of its payment obligations under this Agreement. Licensee agrees that evolutionQ shall not be liable to Licensee or to any third party for any liabilities, claims or expenses arising from or relating to suspension of access or use of the Software resulting from Licensee’s nonpayment or for any other suspension as contemplated in Section 12.2.
13.4 Termination
This Agreement may be terminated at any time:
(1) by evolutionQ, effective on written notice to Licensee, if Licensee fails to pay any amount when due under this Agreement, where such failure continues for more than 30 days after evolutionQ’s delivery of written notice thereof;
(2) by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach;
(3) by either Party, effective on written notice to the other Party, if the other Party: (i) is dissolved, liquidated, or wound-up or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any federal or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver, receiver-manager, or custodian for all or a substantial part of its property; or
13.5 Effect of Termination
Upon any termination of this Agreement: (a) any schedules(s), Orders or amendment(s) to this Agreement shall automatically terminate, (b) all rights, licences and authorizations granted to Licensee hereunder shall immediately terminate, (c) Licensee shall cease all use of and other activities with respect to the Software and Documentation, (d) Licensee shall promptly destroy all Software, Documentation, and Confidential Information received from evolutionQ in a secure manner, and (e) all amounts payable under this Agreement are immediately payable and due no later than 10 days after the termination of this Agreement.
13.6 Survival
Sections 7, 8, 9, 10, 11, 13.5, 13.6, 14, and any other right, obligation, or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement. [NTD: To be updated once this Agreement is finalized.]
14. GENERAL
14.1 Entire Agreement
Unless Licensee has another valid written agreement with evolutionQ for the use of this Software, this Agreement constitute the entire agreement between Licensee and evolutionQ concerning the Software. It is expressly agreed that as between Licensee and evolutionQ and regarding the Software, this Agreement shall supersede any other terms Licensee has on its procurement Internet portal, purchase order or any other agreement with any reseller, prime contractor or service provider. evolutionQ is not bound to a Third Party Provider’s, or any reseller’s, prime contractor’s or other service provider’s agreement with Licensee unless an officer of evolutionQ executes the agreement. This Agreement shall not be construed for or against any Party to this Agreement because that Party or that Party’s legal representative drafted any of its provisions.
14.2 Assignment
Licensee may not assign this Agreement, by merger, operation of law or otherwise, without the prior written approval of evolutionQ. evolutionQ may assign this Agreement at any time and may delegate aspects of its performance under these Agreement to any of its affiliates.
14.3 Headings
The headings in this Agreement are inserted for convenience or reference only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision of this Agreement.
14.4 Notices
All legal notices will be given in writing to: (i) evolutionQ at: Attention: Chief Executive Officer, 180 Columbia Street West, Waterloo, Ontario, Canada, N2L 3L3, and (ii) Licensee at: []. [NTD: Counterparty to confirm notice information.] Notices will be effective: (i) when personally delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (iii) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, orders, purchase orders, confirmations, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with each Party’s standard ordering procedures.
14.5 Waiver
The waiver by either Party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself.
14.6 Severability
Wherever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under Applicable Law. If any portion of this Agreement is declared invalid for any reason, such declaration will have no effect upon the remaining portions of this Agreement, which will continue in full force and effect as if this Agreement had been executed with the invalid portions thereof deleted; provided, however, if such severability will negate in any material respect the terms of this Agreement, then the Parties will negotiate in good faith to amend the invalid terms in a manner so that such terms will not be invalid.
14.7 Amendment and Modification
This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto.
14.8 Governing Law; Venue
This Agreement will be governed by and will be construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. For the purpose of all legal proceedings, this Agreement will be deemed to have been made and performed in the Province of Ontario and the courts of the Province of Ontario will have exclusive jurisdiction to entertain any action arising under this Agreement. The Parties each hereby attorns to the exclusive jurisdiction of the courts of the Province of Ontario.
14.9 Order of Precedence
In the event of any conflict between the terms and provisions of the main body of this Agreement and those of any schedule to this Agreement, or Order under this Agreement, the terms of the main body of this Agreement shall control unless expressly set forth otherwise in the applicable schedule or Order. No proposal, order or other document provided by Licensee will apply and are expressly excluded from this Agreement.
14.10 Force Majeure
Neither Party shall be liable for, nor shall either Party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented with reasonable care. The Party experiencing a force majeure event, shall use commercially reasonable efforts to provide notice of such to the other Party.
14.11 Choice of Language
The Parties confirm that it is their wish that this Agreement, as well as all other documents relating hereto, including all notices, be drawn up in the English language only. Les Parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s'y rattachent, soient rédigés en langue anglaise.
14.12 Currency
All references in this Agreement to "dollars" or "$" are to United States dollars, unless otherwise stated.
14.13 Execution
This Agreement may be executed by the Parties in counterparts and may be executed and delivered by any electronic means, including email, portable document format (PDF) and DocuSign, which when so executed and delivered shall be an original, and all such counterparts together constitute one and the same agreement.
