QUICKWIRE LABS END-USER LICENSE AGREEMENT
This QuickWire Labs End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and QuickWire Labs the QuickWire software product identified above, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("SOFTWARE"). The SOFTWARE also includes any updates and supplements to the original SOFTWARE provided to you by QuickWire Labs. Any software provided along with the SOFTWARE that is associated with a separate end-user license agreement is licensed to you under the terms of that license agreement. By installing, copying, downloading, accessing or otherwise using the SOFTWARE, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install or use the SOFTWARE; you may, however, return it to your place of purchase for a full refund.
SOFTWARE LICENSE
The SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE is licensed, not sold.
GRANT OF LICENSE. This EULA grants you the following rights:
Installation and Use.
You may install, use, access, display, run, or otherwise interact with ("RUN") one copy of the SOFTWARE, or any prior version for the same operating system, on a single computer, workstation, terminal, handheld PC, pager, "smart phone," or other digital electronic device ("COMPUTER"), which may be connected at any point in time to an unlimited number of workstations or computers operating on one or more networks. You may also have the right to make additional copies of the SOFTWARE equal to the number of validly licensed copies of Microsoft Office which you have, and you may use each copy in the manner specified above.
Reservation of Rights.
All rights not expressly granted are reserved by QuickWire Labs.
DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
Limitations on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, or disassemble the SOFTWARE, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
Trademarks. This EULA does not grant you any rights in connection with any trademarks or service marks of QuickWire Labs.
Rental. You may not rent, lease, or lend the SOFTWARE.
Support Services.
QuickWire Labs may provide you with support services related to the SOFTWARE ("Support Services"). Use of Support Services is governed by the QuickWire Labs policies and programs described in the user manual, in "online" documentation, and/or in other QuickWire Labs-provided materials. Any supplemental software code provided to you as part of the Support Services shall be considered part of the SOFTWARE and subject to the terms and conditions of this EULA. With respect to technical information you provide to QuickWire Labs as part of the Support Services, QuickWire Labs may use such information for its business purposes, including for product support and development. QuickWire Labs will not utilize such technical information in a form that personally identifies you.
Software Transfer. The initial licensee of the SOFTWARE may make a one-time permanent transfer of this EULA and SOFTWARE only directly to an end user. This transfer must include all of the SOFTWARE (including all component parts, the media and printed materials, any upgrades, this EULA, and, if applicable, the Certificate of Authenticity). Such transfer may not be by way of consignment or any other indirect transfer. The transferee of such one-time transfer must agree to comply with the terms of this EULA, including the obligation not to further transfer this EULA and SOFTWARE.
Termination. Without prejudice to any other rights, QuickWire Labs may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the SOFTWARE and all of its component parts.
COPYRIGHT
All title and copyrights in and to the SOFTWARE (including but not limited to any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the SOFTWARE), the accompanying printed materials, and any copies of the SOFTWARE are owned by QuickWire Labs or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the SOFTWARE is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content. If this SOFTWARE contains documentation which is provided only in electronic form, you may print one copy of such electronic documentation. You may not copy the printed materials accompanying the SOFTWARE.
In consideration of the mutual covenants and obligations in the Agreement and the fees paid by Customer to QuickWire Labs and subject to the terms and conditions herein, QuickWire Labs grants to Customer a non-exclusive, non-transferable, personal, license to use the Licensed Software.
1. DEFINITIONS
In this Agreement:
Agreement means this agreement entitled "Postmedia Information Technology Group Software License Agreement" including any Supplements and Schedules attached hereto;
Licensed Materials means the User Guide and such other documentation as may be provided by QuickWire Labs to Customer for use with the Licensed Software;
Licensed Software means the set of computer programs, including any data, in object code format, and any updates, changes, enhancements or modifications thereto that may be provided by QuickWire Labs to Customer which set of computer programs are owned or marketed by QuickWire Labs and are specified on the face of this Agreement; and
User Guide means a written description functions of the Licensed Software provided to Customer by QuickWire Labs.
2. GRANT OF LICENSE
A . General Grant Subject to the terms and conditions of this Agreement, QuickWire Labs grants to Customer, through its employees only, a non-exclusive, non-transferable, personal, license to use the Licensed Software at the location specified on the face hereof.
B. Effective Date. Once accepted by QuickWire Labs this Agreement shall be effective from the date of signing by Customer.
C. Use and Reproduction. The license granted is restricted to the use of the Licensed Software by Customer, through its employees only, and solely for its own internal operations. Customer may make one additional copy of the Licensed Software for archive or backup purposes.
D. Number of workstations. Customer is authorized to use the Licensed Software simultaneously on the number of workstations as specified on the face hereof. If Customer requires use by more users then it will need a further license.
E. Sublicense or Transfer. Customer shall have no right to sublicense the use of the Licensed Software and Customer shall not transfer or assign its license to use the Licensed Software and Licensed Materials, and shall not attempt to transfer title to, or transfer possession of, any copy of the Licensed Software and Licensed Materials, whether voluntarily or by the operation of law or otherwise, without the prior written approval of QuickWire Labs.
F. Modification or Merger. Customer shall not modify the Licensed Software or merge it with other software other than as may be directed by the User Guide.
3. OTHER SOFTWARE LICENSES REQUIRED
Customer acknowledges that the Licensed Software is designed to be used with other programs and Customer agrees that it is solely responsible for obtaining and complying with all licenses to use such other programs from the relevant owners or licensors thereof. Customer shall be fully liable for any claims arising as a result of its failure to obtain or comply with such licenses.
4. FEES
A. Acceptance. Acceptance of the Licensed Software and Licensed Materials shall be deemed to have occurred upon delivery and installation of same to Customer’s site.
B. Payment Date. The fee specified on the face of this Agreement and other applicable fees shall be due and payable by Customer without deduction upon delivery of the Licensed Software, as applicable, unless specified otherwise on the face hereof.
C. Taxes. All fees and other charges hereunder do not include any sales, use, goods and services or withholding taxes, or any other taxes or duties whether presently in force or imposed in the future, and such taxes or duties shall be assumed and paid by Customer without deduction from fees and charges hereunder
D. Interest. Any amounts not paid when due shall bear interest at the rate of 1.5% per month (which is equivalent to 18% per annum), calculated from the date the payment was due until receipt by QuickWire Labs of such payment, in full, plus applicable interest.
5. WARRANTY
QuickWire Labs warrants to Customer that it has the right to provide the Licensed Software and Licensed Materials to Customer and that for a period of 90 days following the delivery of the Licensed Software to Customer, the Licensed Software shall perform in substantial compliance with the User Guide, subject to use of the Licensed Software with the software programs specified in Section 3 hereof, and at the location specified on the face of this Agreement. During such 90 day period QuickWire Labs will use reasonable efforts to correct, via remote telephone communication or otherwise at its option, failures of the Licensed Software to perform as specified hereunder, that are brought to its attention by Customer and reproducible by QuickWire Labs. All warranties hereunder are void if Customer or any third party changes or modifies the Licensed Software.
The liability of QuickWire Labs under the above warranty is limited to the use by QuickWire Labs of reasonable efforts to correct any above-specified noncompliance or defect and shall not include liability to Customer or any third party for loss of data or profits, failure to realize expected savings, loss of computer time, any direct damages or any special, indirect or consequential damages, whether foreseeable or not. The warranty only extends to those failures to perform or defects communicated to QuickWire Labs in writing within ninety (90) days following delivery of the Licensed Software.
6. INFRINGEMENT
QuickWire Labs shall, at its own expense, defend or settle any action brought against Customer based on a claim that the Licensed Software infringes any United States or Canadian patent or United States or Canadian copyright and will pay all costs and damages finally awarded against Customer in any such action which are directly attributable to such claim; provided Customer promptly notifies QuickWire Labs when it receives any notice of such claim or allegation of infringement, and provided further that QuickWire Labs has the sole control of the defense or settlement of any such claim.
QuickWire Labs shall not be liable for any infringement or claim thereof based upon the use of the Licensed Software or any element of it in combination with programs orhardware not supplied by QuickWire Labs, or upon any modifications to the Licensed Software or Licensed Materials made by Customer or any entity not authorized by QuickWire Labs to make such modifications.
The foregoing paragraphs of this section 6 state the entire liability of QuickWire Labs for any loss and damage whatsoever as a result of the infringement of any intellectual property rights.
7. LIMITATION OF REMEDIES
QuickWire Labs liability for damages to Customer for any cause whatsoever, and regardless of the form or cause of action, whether in contract or in tort, including negligence, shall be limited to Customer’s direct damages and shall not, in the aggregate, exceed the License Fee paid by Customer to QuickWire Labs for the Licensed Software.
In no event will QuickWire Labs be liable for nor Customer have a remedy for the recovery of any special, indirect or consequential damages, whether foreseeable or not, even if QuickWire Labs has been advised of the possibility thereof.
8. OWNERSHIP OF LICENSED SOFTWARE AND CONFIDENTIALITY
A. Ownership. Customer acknowledges that the Licensed Software and Licensed Materials are the property of
QuickWire Labs and that the only right which Customer obtains to the Licensed Software and Licensed Materials is the right of use in accordance with and subject to the term of this Agreement.
B. Notices. Customer will ensure that all copyright, patent, proprietary and trade secret notices of QuickWire Labs will remain on the Licensed Software in any form, and on all Licensed Materials. The use of a copyright notice on the Licensed Software and Licensed Materials shall not be taken to indicate that they have been published.
C. Confidential Information. Customer acknowledges that the Licensed Software and Licensed Materials contain proprietary and confidential information of QuickWire Labs. Customer will take the same care to safeguard the Licensed Software and Licensed Materials as it takes to safeguard its own most confidential information and such care shall not be any less than would be taken by a reasonable company to safeguard such information. Employees having access to the program shall be specifically advised by Customer of the confidentiality of Licensed Software and Licensed Materials. The Licensed Materials shall prominently bear a legend stating that they are the property of QuickWire Labs and that they contain confidential information and operators shall not be permitted take them from the computer specified the face hereof.
E. Reverse Engineering. Customer shall not derive or attempt to duplicate, or permit or help others to derive or duplicate, the source code relating to the Licensed Software. Customer shall not, nor assist any third party in any attempt to, disassemble or decompile any of the Licensed Software or undertake any attempt to reverse engineer any of the processes embodied in the Licensed Software. QuickWire Labs will make available to Customer, at Customer’s expense, information which it is entitled by law to receive for interoperability purposes, and which could otherwise only be obtained by decompiling or disassembling the Licensed Software.
F. Source Code escrow. QuickWire Labs will deliver all Software including source code, to Postmedia’s Corporate lawyers and it will be held in escrow. The Customer will be permitted access to this source code in the following circumstances:
- if QuickWire Labs fails to maintain or support the system for any reason other than the Customer’s failure to pay any amount due to QuickWire Labs hereunder, and such failure is not remedied within seven (7) days after written notice thereof from The Customer, or
- QuickWire Labs becomes insolvent or bankrupt or seeks protection from its creditors under any law for the relief of debtors ; or any creditor ,receiver takes possession of a substantial portion of The QuickWire Labs’s assets ; or proceedings are commenced for its winding up or liquidation.
9. TERM AND TERMINATION
A. Term. The term of this Agreement shall continue indefinitely, unless terminated as provided hereunder.
B. Default. Failure of QuickWire Labs or Customer to comply with any term or condition of this Agreement shall entitle the other party to give the party in default written notice requiring it to make good such default.
C. Termination. If the default complained has not been cured within thirty (30) days following receipt of such notice, the notifying party shall be entitled, in addition to any other rights it may have under this Agreement or otherwise at law, to terminate this Agreement by giving notice to the other to take effect immediately.
D. Confidential Information. It is recognized by the parties that confidentiality of Licensed Software Licensed Materials is of great and central importance to the business of QuickWire Labs. The parties therefore agree, that if Customer shall breach any term of Section 8 of this Agreement entitled "Ownership of Licensed Software and Confidentiality", then QuickWire Labs shall have the right, at its election, to terminate this Agreement forthwith without notice.
E. Equitable Remedies. Customer further acknowledges that disclosure or use of the confidential information in the Licensed Software or Licensed Materials contrary to this Agreement will cause QuickWire Labs irreparable harm, for which damages may not be an adequate remedy and further acknowledges that, in addition to remedies that may be available to QuickWire Labs at law, QuickWire Labs may apply for all available equitable relief, including injunctive relief.
F. Bankruptcy
This Agreement shall terminate immediately and automatically if Customer is declared insolvent or bankrupt, or if any assignment of its property shall be made for the benefit of creditors or otherwise, or if a petition is filed in any court to declare bankruptcy or for re-organization under any bankruptcy or insolvency law or similar statute and is not dismissed in ninety (90) days, or if a trustee in bankruptcy or similar officer or a receiver is appointed for Customer.
10. PROCEDURE ON TERMINATION
A. Return Materials. Upon any termination of this Agreement, Customer shall return the Licensed Software and Licensed Materials and any full or partial copies thereof to QuickWire Labs and shall certify, under the hand of a duly authorized officer of Customer, that the original and all copies of the Licensed Software and Licensed Materials have been given up to QuickWire Labs, all records or copies of the Licensed Software or Licensed Materials in computer memory have been destroyed, and that no copies of any part of the Licensed Materials, in any form, remain in the possession or control of Customer.
B. Rights of Action Termination of this Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to such termination taking effect
11. GENERAL
A. Force Majeure. Neither party shall be liable for delay or failure in performance resulting from acts beyond the control of such party, including, but not limited to Acts of God, acts of war, fire, flood, or other disaster, act of government, strike, lockout, communication line or power failures, failure, inoperability or destruction of the computer listed on the face of this Agreement or failure or inoperability of any software other than the Licensed Software.
B. Laws. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada.
C. Assignment. Customer shall have no right to assign or transfer this Agreement without the express written permission of QuickWire Labs.
D. Notices. Any notice required or permitted to be sent under this Agreement shall be sent to the addresses specified on the face hereof by hand, or prepaid registered mail return receipt requested. Notice sent by hand shall be effective when delivered, and notice sent by registered mail when received and signed for.
E. Complete Agreement. This Agreement and any Supplement or Schedule attached hereto is the entire agreement between the parties with respect to the subject matter hereof. This agreement may not be changed or terminated orally, but only in writing signed by the parties against whom such claimed termination is sought to be enforced, and that no waiver shall be effective unless similarly acknowledged in writing by a duly authorized representative of the party. No oral or written representation that is not expressly contained in this Agreement is binding on QuickWire Labs.
F. Severability. If any provision of this Agreement is declared by a Court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from the Agreement and the other provisions shall remain in full force and effect.
G. Amendment. No provision of this Agreement shall be amended, altered or waived except by a further written agreement between the parties. No waiver of a provision of this Agreement shall operate as a waiver of any provision or as a waiver of the same provision on another occasion.
H. Survival. In the event of the termination of provisions of this Agreement, the provisions of Section 5, 7, 8, 9, and 10 shall remain in full force and effect, until such time as the parties mutually agree to the release of the terms thereof.
I. Language. The parties have requested that this Agreement and all documents contemplated hereby be drawn up in English.
Les parties aux presentes ont exige que cette entente et tous autres documents envisages par les presentes soient rediges en anglais.
