Enterprise Perpetual Software License Agreement

These Terms and Conditions (“Terms” or this “Agreement”) govern the license to the Software, the purchase and/ or rental of Hardware, and access to Services and the use of the Website by the Client and its Users (“you”, “your”, and terms of similar meaning) made available by Synerion North America Inc. (“we”, “us”, “Synerion”, or “Provider” and terms of similar meaning) and its suppliers.

By accepting this Agreement, by (a) clicking a box indicating acceptance; (b) accepting or executing an Order Form that references this Agreement; or (c) or by accessing or using the Services or the Website, you agree to be bound by these Terms, and all terms, policies and guidelines incorporated by reference in these Terms.

If the individual accepting this Agreement is accepting on behalf of a company or legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these Terms, in which case the term “Client” or “User” (as the case may be) shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these Terms, such individual must not accept this Agreement and may not use the Services or the Website.

The Order Form is automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the Order Form expressly conflict with these Terms, the conflicting provisions of the Order Form control and shall take precedence over the conflicting provisions of the Terms.

1. APPLICABILITY

Notwithstanding any provisions to the contrary that might be set forth on Sales Order, the preprinted Sales terms and conditions appearing on the face and reverse side of such Sales Order shall not apply to or become a part of the agreement covering the license and the use of the Product(s). In the event of a conflict between the terms of this Agreement and those appearing on the face of such Sales Order, the terms and conditions of this Software License Agreement shall prevail.

a. Product. The term “Product” means one or more of Synerions’ proprietary computer software programs identified in the Sales Order, all related materials, documentation, and other written information received by Licensee from Licensor.  The Sales Order may identify more than one Product or more than one copy of any product.

b. Acceptance Date. The term “Acceptance Date” means the date of occurrence of one of the following: (i) the Product(s) is installed and performing; or (ii) the Product(s) has been delivered to Licensee and installation has been delayed by Licensee more than thirty (30) days after delivery or such other time frame specified in the applicable Sales Order.

LICENSE

a. Grant of License. Licensor hereby grants to Licensee and Licensee hereby accepts from Licensor a non-exclusive, non-transferable perpetual License to use the Software Product in accordance with this Agreement.  Licensee acknowledges and agrees that the Software Product is the proprietary information of Synerion and that this Agreement grants Licensee no title or right of ownership in the Software.

b. Restriction on Use. Licensee is authorized to use the Software Product only for Licensee’s internal purposes.

c. The rights and license granted Licensee hereunder are restricted solely and exclusively to Licensee and may not be assigned, sub-leased, sub-licensed, sold, offered for sale, disposed of, encumbered or mortgaged. License is non transferable.

d. Proprietary Markings. Licensee agrees not to remove or destroy any proprietary markings or proprietary legends placed upon or contained within the Software Product or any related materials or documentation.

3. TERM

The license granted under this Agreement shall commence upon acceptance of the Product(s) and shall continue for a minimum of 1 year and renew in perpetuity until written cancellation in writing with thirty (30) days notice.

4. MAINTENANCE AND SUPPORT

a. Maintenance and Support Services. Licensor will perform ongoing maintenance and enhancements to the software.  These will be applied and released with notification.

b. Limitations on Licensor’s Obligations. Any modification or attempted modification of the Software by Licensee or any failure by Licensee to implement the Updates as supplied by Licensor shall void the obligations of Licensor under this section unless Licensee has obtained prior written authorization from Licensor permitting such modification, attempted modification or failure to implement

5. NO WARRANTY

THE PRODUCT(S) IS PROVIDED ON AN “AS IS”  BASIS AND LICENSOR MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE PRODUCT, ITS MERCHANTABILITY, OR ITS FITNESS FOR ANY PARTICULAR USE.

6. LIMITATIONS OF LIABILITY

LICENSOR SHALL NOT BE LIABLE FOR DAMAGE TO PERSONS OR PROPERTY; OR FOR INJURY TO BUSINESS EARNINGS, GOODWILL, PROFITS, OR OTHER FINANCIAL LOSS WHICH MAY BE CAUSED, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF THE PRODUCT(S) FOR ANY PURPOSE OR USE THEREOF OR BY ANY DEFECT OR DEFICIENCY THEREIN.

LICENSOR SHALL HAVE NO LIABILITY TO LICENSEE FOR INFRINGEMENT OF COPYRIGHT, PATENT AND/OR PROPRIETARY RIGHTS OF THE PRODUCT(S) OR ANY PORTION THEREOF.

No action, regardless of form, arising out of any transaction under this Agreement, may be brought by either party more than one year after the injured party has knowledge of the occurrence which gives rise to the cause of such action.

7. PAYMENT

a. Payment. All payments shall be due and payable after Licensee’s receipt of an invoice from Licensor as specified in the applicable Sales Order.

b. In the event Licensee cancels this Agreement, any unpaid amount for the Products shall become immediately due and payable by Licensee and Licensor is authorized to take possession of any or all of the Products and dispose of such property in accordance with applicable law.

8. PRIVACY AND SECURITY

Please refer to the privacy policy available at www.synerion.com/privacypolicy (the “Privacy Policy”) for information on how we or our licensors collect, use and disclose your Personal Information. By using the Services, you agree to the use, collection and disclosure of personally identifiable information in accordance with the Privacy Policy.

9. NON-DISCLOSURE

Licensee acknowledges that the Software includes proprietary trade secrets and confidential information.  Licensee agrees to hold in strict confidence and shall not, at any time, whether during or after the term of this Agreement without the prior written consent of Licensor, disclose to any third party, use, other than for the specific purpose for which it was provided, examine, decompile, disassemble, or copy in any manner the following information: (i) machine readable programs and any documentation of those programs: and (ii) manuals and other printed or written materials.

Licensee agrees that machine readable programs and related documentation will be kept continuously under Licensee’s personal control.  Licensee agrees not to create, or permit others to create or attempt to create, by reverse engineering or otherwise, the source programs or any part thereof from the object programs or from any other information made available to Licensee under this Agreement.

Title to the copyright in all Products, manuals and related documentation is and shall remain in Synerion. Licensee may use the Products, manuals and related documentation only as provided in this Agreement.  Licensee agrees not to alter or remove any copyright notices or other proprietary notices on or in the software, documentation, or other materials supplied by Licensor.

10. TERMINATION

a. Termination Bases. Licensor shall have the right without further obligation or liability to licensee: (i) to terminate the applicable Sales Order if Licensee is delinquent in making payment of any sum due under this Agreement and continues to be delinquent for a period of thirty (30) days after the payment is due; or, (ii) to terminate the applicable Sales Order or this Agreement if Licensee commits any other breach of this Agreement and fails to remedy such breach within ten (10) days after written notice by Licensor of such breach.  Licensee’s obligation to pay all accrued charges shall survive the termination of this Agreement.  Licensor’s termination of this Agreement and/or repossession of the Product(s) shall be without prejudice to any other remedies that Licensor may lawfully have.

b. Disposition of Product(s) on Termination. Upon the termination of this Agreement or an applicable Sales Order for any reason, the license and all other rights granted hereunder to Licensee shall immediately cease and Licensee shall immediately; (i) return the applicable Product(s) to Licensor together with all documentation, notes and other material respecting the Product(s); (ii) purge all copies of the applicable Product(s) or any portion thereof from all its Equipment and from any computer storage medium or device on which Licensee has placed or permitted others to place the Product(s); and (iii) give Licensor a written certification that through its best efforts and to the best of its knowledge, Licensee has complied with all its obligations under this Section 10 (B).

11. GENERAL

a. Waiver, Amendment or Modification. Any waiver, amendment or modification of any of the provisions of this Agreement or any right, power or remedy hereunder shall not be effective unless made in writing and signed by the parties.  No failure or delay by either party in exercising any right, power, or remedy with respect to any of its rights hereunder shall operate as a waiver thereof in the future.

b. Notices. Any notice or other communication required or permitted hereunder shall be given in writing to the other party at the address listed in the Sales Order and address set forth herein, or at such other address as shall be given by either party to the other in writing.  Such notice shall be deemed to have been given when delivered personally or when placed, properly addressed and postage prepaid, in the Canada/United States Post mail.  Written notices of termination by either party, if mailed, shall be sent via certified or registered mail, return receipt requested.

c. Entire Agreement. This Agreement and the applicable Sales Order constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations and/or agreements among the parties in conjunction with the subject matter hereof except as specifically set forth or referred to herein.

d. Successors and Assigns. All the terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and assigns and legal representatives.  Upon advance written notice, either party may assign this Agreement in its entirety to a parent; subsidiary or successor in interest to the line of business of the party providing such assignee is able to and does fulfill the obligations of the assignor.  This Agreement may not be otherwise assigned by either party without the advance written consent of the other.

e. Governing Law; Severability. The validity, construction and performance of this Agreement and the legal relations among the parties to this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the parties hereby irrevocably submit to the exclusive jurisdiction of the Courts of Toronto If any provision of this Agreement or the application of any such provision shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.

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