TERMS & CONDITIONS |

TERMS & CONDITIONS

Looking for those documents that your legal team wants? Look no further, below is the terms and conditions of sale for both our products and our software.

STANDARD TERMS AND CONDITIONS OF SALE

TERMS AND CONDITIONS OF SALE - MDT CANADA

Mobile Data Technologies

Sales Order Standard Terms & Conditions

THESE TERMS AND CONDITIONS APPLY TO ALL SALES OF GOODS BY MOBILE DATA TECHNOLOGIES LTD. (“SELLER”). SELLER’S ACCEPTANCE OF BUYER’S ORDER IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THE TERMS AND CONDITIONS OF THE QUOTATION PROVIDED BY SELLER, IF ANY, THESE TERMS AND CONDITIONS, AND ANY SPECIFICATIONS OR OTHER TERMS ATTACHED HERETO, IF ANY (COLLECTIVELY, THIS “CONTRACT”). IF BUYER DOES NOT ASSENT TO THE TERMS OF THIS CONTRACT, PLEASE CANCEL THIS ORDER IMMEDIATELY SO THAT SELLER DOES NOT PROCESS THIS ORDER. NOTWITHSTANDING ANY ORAL OR WRITTEN STATEMENT MADE BY BUYER, SELLER’S ACCEPTANCE OF BUYER’S ORDER DOES NOT IN ANY WAY WHATSOEVER CONSTITUTE ACCEPTANCE OF BUYER’S TERMS AND CONDITIONS, AND BUYER’S TERMS AND CONDITIONS ARE NOT A PART OF THE CONTRACT BETWEEN BUYER AND SELLER UNLESS AN AUTHORIZED OFFICIAL OF SELLER EXPRESSLY AGREES IN WRITING TO ACCEPT SUCH TERMS AND CONDITIONS OR ANY PART THEREOF.

1. ACCEPTANCE OF ORDERS:

All orders submitted by BUYER (each an “Order”) are subject to SELLER’s prior credit approval. No Order shall be binding on SELLER until accepted in writing by an authorized official of SELLER. SELLER is under no obligation to accept any Order from BUYER.

2. TAXES:

Prices do not include sales, use, excise, value -added, or other similar taxes, duties, charges, or fees (or any related fines, penalties, or interest) (collectively, “Taxes”), now or thereafter enacted, applicable to the goods sold or this transaction; any such Taxes will be added by SELLER to the sales price where SELLER is required by law to collect the same, and will be paid by BUYER unless BUYER provides SELLER with a proper tax- exemption certificate.

3. TITLE AND DELIVERY:

Unless otherwise specified on the Order, goods are delivered EX WORKS (INCOTERMS 2010) SELLER’s plant. Title and risk of loss pass to BUYER on delivery. Notwithstanding the foregoing, SELLER grants only a license (pursuant to the terms of the attached Software License Terms and Conditions), and does not pass title, for any software provided by SELLER under this Contract. SELLER may deliver the goods in installments. Shipping dates are approximate only. Claims for shortages must be made in writing within ten (10) days of BUYER’s receipt of shipment, or BUYER is deemed to have waived such claims.

4. TERMS AND METHOD OF PAYMENT:

Where SELLER has extended credit to BUYER, terms of payment shall be Net 30 days or as stated on quotation, from the date of invoice. The amount of creditor terms of payment maybe changed or credit withdrawn by SELLER at any time. If the goods are delivered in installments, BUYER shall pay for each installment in accordance with the terms of payment hereof. Payment shall be made for the goods without regard to whether BUYER has made or may make any inspection of the goods. If shipments are delayed by BUYER, payments are due from the date when SELLER is prepared to make delivery. Goods held for BUYER, shall be held at BUYER’s sole risk and expense. Unless otherwise agreed in writing by an authorized official of SELLER, if BUYER delays shipment of any standard good by more than ten (10) days, SELLER may cancel the Order and assess BUYER a ten percent (10%) restocking charge. Goods held for more than thirty (30) days may incur reasonable storage charges. All amounts due shall be paid in US Dollars directly to SELLER as directed by SELLER on its invoice or otherwise as specified in a written notice. In the event of a bonafide dispute of SELLER’s invoice amount, BUYER shall deduct the disputed portion and remit the balance with a detailed written explanation of such dispute. Delinquent invoices are subject to a monthly service charge of the lower of 18% per annum or highest % allowed by law, which shall be added to the invoice amount. Not withstanding anything herein to the contrary, if BUYER fails to fulfill the terms of payment, SELLER may defer further shipments, or may, at its option, cancel the unshipped balance. SELLER reserves the right, prior to making any shipment, to require from BUYER satisfactory security for performance of BUYER’s obligations.

5. CANCELLATION OR RESCHEDULING:

BUYER may request changes, including rescheduling or canceling, of all or a portion of an Order for a standard good. SELLER reserves the right to reject any change or cancellation to an Order for a standard good requested by BUYER or to accept such and assess a fifteen percent (15%) restocking fee. Changes, rescheduling, or cancellation of custom Orders must be submitted in writing at least twenty (20) days prior to the ship date and must be preapproved in writing by an authorized official of SELLER. SELLER reserves the right to reject any change or cancellation of a custom Order. Any change or cancellation of a custom Order accepted by SELLER will be subject to a change or cancellation fee equal to the estimated cost and loss, including SELLER’s time and materials, to SELLER associated with such custom Order.

6. CONTINGENCIES:

SELLER shall be excused from performance and shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond its reasonable control, including, but not limited to, war (whether an actual declaration thereof is made or not); sabotage; insurrection; riot or other act of civil disobedience; act of public enemy; failure or delay in transportation; act of government or any agency or subdivision thereof affecting the terms of this Contract, prohibiting or penalizing SELLER’s performance, or otherwise; judicial action; labor dispute; accident; fire; explosion; flood; storm or other acts of God; shortage of labor, fuel, raw material or machinery; or technical or yield failure. If any such contingencies occur, SELLER may equitably allocate production and deliveries among SELLER’s customers.

7. SUBSTITUTIONS AND MODIFICATIONS OF GOODS:

SELLER may modify the specifications of goods designed by SELLER and substitute goods manufactured to such modified specifications for those specified herein provided such goods conform to this Contract.

8. WARRANTIES:

SELLER, except as otherwise hereinafter provided, warrants goods manufactured by SELLER (other than experimental or developmental goods) will be free from material defects in workmanship and materials and that such goods will conform to SELLER’s specifications for standard goods and to mutually agreed upon written specifications, drawings, and other descriptions for customized goods for a period of one (1) year from date of shipment. SELLER also warrants that at the time of delivery, SELLER has title to the goods free and clear of any and all liens and encumbrances. SELLER makes no warranty as to: (i) experimental or developmental goods; (ii) goods not manufactured by SELLER, provided that to the extent permitted by SELLER’s contract with its supplier, SELLER shall assign to BUYER any rights SELLER may have under any warranty of the supplier thereof; (iii) SELLER’s rendering of technical advice or service in connection with BUYER’S order of the goods furnished hereunder; (iv) goods manufactured by SELLER based on BUYER’S designs; or (v) misuse, improper handling, use outside the proper performance parameters for the Goods.

EXCEPT AS PROVIDED ABOVE, SELLER MAKES NO WARRANTIES, TERMS OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, ABOUT THE GOODS, THE SERVICES OR THE SUITABILITY, LEGALITY OR ACCURACY OF INFORMATION, OR GOODS AND SERVICES PROVIDED BY SELLER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, TERMS OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THESE WARRANTIES ARE THE ONLY WARRANTIES MADE BY SELLER AND CAN BE AMENDED ONLY BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER.

9. PATENT AND COPYRIGHT INDEMNITY:

A. SELLER shall defend any suit or proceeding brought against BUYER which is based on a claim that any goods manufactured by SELLER and supplied here under constitute infringement of any U.S. or Canadian patent, copyright or trade secret of a third party, and SELLER shall pay all damages and loss, finally awarded against BUYER associated with such infringement provided that SELLER is promptly informed of and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given authority, information, and assistance (at SELLER’s expense) necessary to defend or settle said suit or proceeding. SELLER shall not be obligated to defend or be liable for loss or damage if the infringement arises out of (i) compliance with BUYER’s designs or specifications; (ii) goods that are modified without SELLER’s prior written authorization; or (iii) use of goods manufactured or supplied by SELLER in combination with other goods.

B. If SELLER determines or believes that any good manufactured and supplied by SELLER to BUYER may be subject to any claim that it infringes any US or Canadian patent, copyright, or trade secret, SELLER will, at its option and at its expense, (I) procure for BUYER the right to use such good, or (II) to replace such good with a non-infringing substitute otherwise complying substantially with the specifications, or (III) refund the purchase price and the transportation costs of such good.

C. If the infringement by BUYER is alleged prior to completion of delivery of the goods under this Contract, SELLER may decline to make further shipments without being in breach of this Contract, and provided SELLER has not been enjoined from selling said goods to BUYER, SELLER may, at its option, agree to supply said goods to BUYER at BUYER’s request, whereupon BUYER shall release and shall indemnify, and hold harmless SELLER and its directors, officers, employees, contractors (of any tier), agents and representatives, successors and assigns (collectively, “SELLER Group”) from and against any and all actions, claims, costs (including without limitation, costs of investigation, litigation, and court costs), damages, demands, fines, interest, judgments, liabilities, losses, penalties, proceedings, suits (including appeal), and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Claims”) brought by or on behalf of any person or entity arising out of or in connection with any allegation, in whole or in part, that the goods or technical data associated therewith infringe the third party’s patent, copyright or trade secrets.

D. The sale by SELLER of the goods ordered hereunder does not grant to, convey, nor confer upon BUYER or BUYER’s customers, nor upon anyone claiming under BUYER, a license, express or implied, under any patent or other intellectual property rights of SELLER covering or relating to any combination, machine, or process in which said items might be or are used. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES HERETO FOR PATENT, COPYRIGHT, OR TRADE SECRET INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.

10. REMEDIES AND DAMAGES:

A. If SELLER breaches its warranties ascontained in paragraph 8 herein, SELLER’s sole and exclusive liability shall be (at SELLER’s option) to replace or credit BUYER’s account for any such goods which are returned by BUYER during the applicable warranty period provided that (I) SELLER is promptly notified in writing upon discovery by BUYER that such goods failed to conform to the warranty standards described in Section 8 with a detailed explanation of any alleged deficiencies, (II) such goods are returned to SELLER, FOB SELLER’s plant from which goods were shipped, and (III) SELLER’S EXAMINATION OF SUCH GOODS SHALL DISCLOSE THAT SUCH ALLEGED DEFICIENCIES ACTUALLY EXIST AND WERE NOT CAUSED BY ACCIDENT, MISUSE, NEGLECT, ALTERATION, IMPROPER HANDLING AND IMPROPER STORAGE: If such goods fail to conform to the warranty, SELLER shall reimburse BUYER for the transportation charges paid by BUYER for such goods. If SELLER elects to replace such goods, SELLER shall have a reasonable time to replace such goods. WRITTEN AUTHORIZATION (an “RMA”) MUST BE OBTAINED FROM SELLER PRIOR TO THE RETURN OF ANY MATERIAL FOR ANY REASON WHATSOEVER. Goods returned to SELLER without an RMA number will be returned to BUYER at BUYER’s cost and expense.

B.BUYER AGREES THAT REGARDLESS OF THE CLAIM OR OTHER FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT BY BUYER AGAINST SELLER GROUP THAT NO MEMBER OF THE SELLER GROUP SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, PROMOTIONAL EXPENSES, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS. BUYER’s recovery from SELLER Group or any of them for any claim in any way arising from or related to the goods or this Contract shall not in the aggregate exceed the lesser of (i) the quoted Sales Price for the goods or (ii) the amount actually paid to SELLER by BUYER for the goods irrespective of the nature of the claim, whether in contract, tort, warranty, strict liability, product liability or otherwise and whether arising in whole or in part from the negligence of the SELLER Group.

11. INDEMNIFICATION:

BUYER HEREBY ASSUMES AND AGREES TO INDEMNIFY, DEFEND, PROTECT, SAVE, KEEP, AND HOLD HARMLESS SELLER GROUP FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, INJURIES, CLAIMS, CAUSES OF ACTION, LIABILITIES, DEMANDS AND EXPENSES (INCLUDING ATTORNEY FEES AND OTHER LEGAL EXPENSES) OF WHATSOEVER KIND AND NATURE, FOR INJURY TO, OR ILLNESS OR DEATH OF ANY PERSON AND FOR ALL DAMAGE TO, LOSS OR DESTRUCTION OF PROPERTY (COLLECTIVELY “LOSSES”), RELATING TO, CONNECTED WITH IN ANYWAY, ARISING OUT OF, OR ON ACCOUNT OF THE GOODS OR SERVICES PURCHASED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY SUCH LOSSES CAUSED OR OCCASIONED BY ANY NEGLIGENT ACT OR OMISSION OF ANY MEMBER OF THE SELLER GROUP. The foregoing indemnity is a material part of this transaction, supported by and in consideration of a reduction in the purchase price and is intended to apply not withstanding the joint or concurrent negligence of any member of the Seller Group.

12. TERMINATION AND CANCELLATION:

Unless otherwise agreed in writing, if in the SELLER’s judgment, BUYER’s financial condition does not justify the terms of payment specified herein, SELLER may cancel this Contract unless BUYER shall immediately pay for all goods which have been delivered and pay in advance for all goods to be delivered.

13. NON-WAIVER OF DEFAULT; ENFORCEABILITY:

In the event of any default by BUYER, SELLER may decline to make further shipments. If SELLER elects to continue to make shipments, SELLER’s action shall not constitute a waiver of any future default by BUYER or in any way affect SELLER’s legal remedies for any such default. If any provision of this Contract is held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of this Contract, and this Contract shall be construed as if such invalid or unenforceable provision were omitted.

14. APPLICABLE LAW:

The validity, performance, and construction of this Contract shall be governed by the laws of the Province of Alberta and the federal laws of Canada (excluding its conflict of laws rules which would refer to and apply the substantive laws of another jurisdiction). Any suit or proceeding hereunder shall be brought exclusively in the courts of the Province of Alberta. Each party consents to the personal jurisdiction of the courts of said Province and waives any objection that such courts are an inconvenient forum. The 1980 U.N. Convention on Contracts for the International Sale of Goods shall not govern the rights and obligations of the Parties under this Contract.

15. TECHNICAL DATA:

Unless otherwise agreed to, BUYER shall not obtain any rights in SELLER’s technical data, including without limitation all detailed part drawings and manufacturing processes.

16. CONFIDENTIALITY:

Except as otherwise provided in this Contract, BUYER agrees that any andall information associated with the goods (including but not limited to SELLER’s technical data) or the SELLER that is not otherwise publicly available (“Confidential Information”) that is disclosed to or received by BUYER (i) shall be treated as SELLER’s confidential, proprietary, and trade secret information (with SELLER reserving all rights to its Confidential Information); (ii) shall be held by BUYER in strict confidence, (iii) shall be used by BUYER only for purposes of this Contract, and (iv) that no Confidential Information, including without limitation the provisions of this Contract, shall be disclosed by BUYER without the prior written consent of SELLER. BUYER shall safeguard Confidential Information with at least the same degree of care (which shall always be at least a reasonable amount of care) that it uses to safeguard its own confidential, proprietary, and trade secret information.

17. ASSIGNMENT:

This Contract shall be binding upon and inure to the benefit of the parties and the successors and assigns of the entire business and goodwill of either SELLER or BUYER or of that part of the business of either used in the performance of this Contract, but shall not be otherwise assignable. Any assignment made by either party in contravention of this Section shall be null and void for all purposes. There are no third party beneficiaries to this Contract.

18.INDEPENDENT CONTRACTOR:

SELLER, in providing the goods hereunder, is acting as an independent contractor and does not undertake by any Order or otherwise to perform any obligation of BUYER, or to assume any liability for BUYER’s business or operations.

19. MODIFICATION:

This Contract constitutes the entire agreement between the parties relating to the sale of goods described on the Order and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof, and no representations or statements of any kind made by any representative of SELLER, which are not stated herein, or upon the Order shall be binding upon SELLER unless made in writing and signed by a duly authorized representative of SELLER. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in this Contract.

20. SOFTWARE:

If Seller provides any software to Buyer, the Software License Terms and Conditions shall apply. If there is any conflict between this Contract and the terms of the Software License Terms and Conditions, the terms of the Software License Terms and Conditions shall take precedence with respect to the applicable scope.

SOFTWARE LICENSE TERMS AND CONDITIONS

SOFTWARE TERMS AND CONDITIONS -MDT CANADA

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SCHEDULE A

Software License Terms & Conditions

THIS LICENSE AGREEMENT BY AND BETWEEN MOBILE DATA TECHNOLOGIES LTD. (“LICENSOR”) AND THE CUSTOMER IDENTIFIED IN THE ORDER CONFIRMATION (“LICENSEE”), TOGETHER WITH THE ORDER CONFIRMATION, FORMS THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER SET FORTH HEREIN (THE “AGREEMENT”). FOR THE AVOIDANCE OF DOUBT, LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSEE IS ONLY BEING GRANTED A LICENSE TO USE THE SOFTWARE AND THE DOCUMENTATION SPECIFIED IN THE ORDER CONFIRMATION IN ACCORDANCE WITH THE LIMITATIONS SPECIFIED THEREIN AND THAT, FOR GREATER CERTAINTY, SUCH LICENSE SHALL NOT BE CONSTRUED AS TO GRANT TO LICENSEE THE RIGHT TO USE ANY OTHER SOFTWARE, SERVICES OR DOCUMENTATION OF LICENSOR OR ITS SUPPLIERS, OR TOUSE OR EXPLOIT THE SOFTWARE OR THE DOCUMENTATION IN ANY MANNER OTHER THAN AS EXPRESSLY PERMITTED BY THIS AGREEMENT AND SPECIFIED IN THE ORDER CONFIRMATION. CAPITALIZED TERMS NOT DEFINED IN THESE TERM AND CONDITIONS WILL HAVE THE MEANINGS SET FORTH IN THE ORDER CONFIRMATION, AND VICE-VERSA.

1. Definitions.

The following terms are applicable to both the singular and plural and shall mean: “Authorized Users” means Licensee’s Personnel who are authorized by Licensee to use the Software, from time to time, during the Term. “Derivative Works” includes but is not limited to (a) any work based upon one or more pre-existing works, such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, extension or any other form in which such pre-existing works may be published, recast, transformed, or adapted, and that if prepared without the authorization of the owner of the copyright to such pre-existing works, would constitute a copyright infringement, and/or (b) any compilation that incorporates such pre-existing works. For Software, Documentation, and Third Party Software (as defined below), Derivative Works also includes any and all corrections, bug fixes, and updates to the (a) Software, (b) Documentation, and (c) Derivative Works. “Documentation” means any documentation and other related materials, or any portion thereof, regardless of its form or medium, pertaining to the Software provided or made available by or on behalf Licensor to Licensee in conjunction with this Agreement, and shall include any abridgement or condensed form of such documentation, and any other work derived therefrom. “Error” means any material error, defect or non-conformity of the Software that are identified by Licensor or that are identified by Licensee and are verifiable by Licensor. “License Fees” are the license fees described in the Order Confirmation to be paid for the License. “Order Confirmation” means the accepted Order Confirmation attached hereto applicable to Licensee’s use of the Software as described therein, along with any other accepted Order Confirmations that may be incorporated by reference to this Agreement from time to time. “Personnel” means a party’s directors, officers, employees, consultants, contractors, agents, and representatives. “Software” means Licensor’s proprietary software identified in the Order Confirmation.

2. License Grant.

A. Subject to the terms of this Agreement, Licensor hereby grants to Licensee a non-transferrable, nonexclusive, personal license during the Term (as hereinafter defined) to: (i) install and subsequently use a copy of the Software on the number of computer workstations specified in the Order Confirmation for Licensee’s; and (ii) use the Documentation in connection with, and during Licensee’s authorized use of the Software. All use of the Software and Documentation by Licensee shall be for Licensee’s internal business purposes only.

B. Licensee may (subject to, and only to the extent of, the license rights granted to Licensee in Section 2(A) above) permit its Authorized Users to use the Software. Licensee shall be fully responsible for its Authorized Users’ compliance with this Agreement in such use.

C. Except as provided herein, Licensee shall not permit the Software or Documentation to be subject to any timesharing, service bureau, subscription service or rental activities.

D. The Software and Documentation shall be considered accepted by Licensee upon receipt.

3. Restrictions on Use.

A.Unless expressly provided herein, Licensee shall not: (i) sublicense, lend or lease the Software or Documentation, or otherwise make the Software or Documentationavailable, to any third party; (ii) permit the Software or Documentation to be subject to any timesharing, service bureau, subscription service or rental activities; (iii) share information about the Software with any third party without the written consent of Licensor; (iii) remove or alter any patent, trade- mark, copyright or confidential information notices, or any other indicia of Licensor’s or its suppliers’ ownership of, or rights in, the Software; (iv) pledge Software as collateral or otherwise, or encumber such Software with any lien or security interest; modify, change, alter or adapt the Software, or any portion thereof, or create or attempt to create any derivative works thereof, or do anything or permit anything to be done, so as to reverse engineer, disassemble, decompile, or otherwise attempt to derive, learn or access any source code, confidential information or trade secrets inherent in the Software; (vi) copy, use or disclose the Software in any manner or for any reason whatsoever other than for the purpose(s) expressly permitted by this Agreement; and (vii) Licensee shall comply with all applicable laws when using the Software (including, but not limited to export/import laws, as the Software may include encryption technologies that are subject to US export controls and Licensee may not export the Software out of the United States of America or Canada without Licensor’s prior written consent).

B.Licensee may make one (1) copy of the Software, and Documentation for backup purposes only. Licensee must reproduce and include all proprietary rights and copyright notices on any backup copies.

4.Third Party Software.

A.Licensee acknowledges that: (i) the Software operates in, connects to and/or interfaces with certain third party operating systems, applications and other software; (ii) Licensee is responsible for obtaining, installing, supporting and maintaining such software; and (iii) Licensor shall not, unless otherwise agreed to by the parties, be responsible for obtaining, installing, supporting or maintaining any such software.

B.Licensee further acknowledges that certain third party software may be incorporated into the Software (the “Third Party Software”) and that any such software is licensed to Licensee as part of the Software and may be subject to additional terms as more particularly set out in the Documentation, and that this Agreement does not grant Licensee the right the use the Third Party Software in any manner other than in connection with Licensee’s authorized use of the Software in the manner provided herein and in compliance with the applicable additional terms as more particularly set out in the Documentation.

5. Registration of Software.

Licensor has designed the Software to prevent unlicensed use or copying of the Software. Licensee agrees that Licensor may do so. In particular, use of the Software may require that Licensee activates each instance of the Software by use of the installation key. Licensee shall tr eat the installation key(s) as the confidential information of Licensor and shall only use same for the sole purpose of installing and activating the Software to enable Licensee and its Authorized Users to make use of the Software in the manner authorized herein. Licensee shall not disclose the installation key(s) to any third party.

6. Support Services; Upgrades.

This Agreement does not obligate Licensor to provide maintenance and support on the Software licensed hereunder. Such services are available under separate agreement. If Software is an upgrade of a previous version (provided such upgrade was obtained under a separate support services agreement with Licensor or a Licensor authorized distributor), Licensee may use such Software only in accordance with this Agreement.

7. Payment.

A.Licensee shall pay Licensor the License Fees at the times described in the Order Confirmation, but in any event, no later than the Effective Date.

B.The Fees and charges payable hereunder do not include any applicable sales, use, excise, GST, HST, value-added or other taxes or duties; Licensee is responsible for paying same. All License Fees paid to Licensor hereunder shall be non-refundable.

C. A twelve (12%) percent per annum fee (accrued and billable monthly) will apply to any License Fees owed to Licensor hereunder which are not paid on time.

8. Verification.

During the term of this Agreement and for three (3) years thereafter, Licensor may upon reasonable notice require that an independent audit of the use of Software be conducted during Licensee’s normal business hours. Upon such notice, Licensee shall provide Licensor’s independent auditor site access and the right to inspect relevant portions of Licensee’s computer system on which Software resides. Licensee agrees to pay promptly: (a) all underpaid License Fees and (b) if the

underpayment is more than 5% of the License Fees paid before audit, all audit costs and expenses.

9. Term and Termination.

This Agreement commences upon the acceptance of the Order Confirmation by Licensor and continues until it is terminated in accordance with the terms of this Section (the “Term”). Licensor may terminate this Agreement immediately if Licensee fails to comply with any of the terms and conditions herein. The license for any Software provided with leased equipment shall terminate concurrently with termination of the lease. Upon termination, Licensee shall (a) cease using the Software and Documentation, and (b) certify to Licensor within one (1) month of the termination that Licensee has, at Licensor’s election, destroyed or returned to Licensor the Software, Documentation, and all copies thereof.

10. Ownership.

A.All Software and Documentation are licensed and not sold. Licensee agrees that Licensor or its suppliers own all proprietary rights, including, but not limited to any patent, copyright, trade secret, trademark, and other proprietary rights, in and to Software (including all source code) and Documentation, including any Derivative Works thereof, regardless of the source of development. Licensor reserves all rights to the Software and Documentation that are not expressly granted in this Agreement.

B.Though Licensee is not authorized hereunder, to the extent that any DerivativeWorks of the Software are developed by or for Licensee, Licensee hereby: (i) agrees that the intellectual property rights to such Derivative Works are automatically vested in Licensor (or its affiliates, in Licensor’s sole discretion); (ii) irrevocably transfers and assigns to Licensor all intellectual property rights, moral rights, title, and interest throughout the world in and to any such Derivative Works, including, but not limited to, all rights in and to any inventions and designs embodied in such Derivative Works or its associated technology; (iii) agrees and forever waives any right to assert any claim contrary to (i) and (i) in this Section 10(B), and any moral rights associated therewith; and (iv) agrees to take all steps necessary to fulfill the requirements as set forth in this Section 10(B) for any such Derivative Works whether developed by Licensee or by any third party under Licensee’s direction. If by operation of law such rights are not automatically transferred and assigne d as provided above, Licensee shall timely execute and deliver such instruments and take such other action as may be requested by Licensor to perfect and protect Licensor’s (or Third Party Software owner’s) rights in any Derivative Works and to carry out t he assignments effected by this Section 10(B) at no cost to Licensor.

11.Limited Warranties.

A.Licensor warrants, for Licensee’s benefit alone, that under normal use, the media in which Software is embedded shall be free from defects in material and workmanship, fora period of ninety (90) days from the date of delivery of the original Software (the”Warranty Period”).

B.Subject to Section 11(F), Licensor warrants, for Licensee’s benefit alone, that during the Warranty Period, the Software will perform substantially in accordance with the Documentation. If, during the Warranty Period, an Error occurs, Licensor will use commercially reasonable efforts to correct such Error, provided Licensee furnishes Licensor with the following: (a) written notice of the Error, including a description of the failure to perform in accordance with Documentation and a specific description of the operating conditions (including the specific software/hardware configuration) under which

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the Error occurred, and

(b) to the extent feasible, a representative sample of inputs for repeating and analyzing the Error. If Licensor is unable, after commercially reasonable efforts, to correct the Error, Licensee’s sole remedy shall be termination of this Agreement and Licensor shall refund the License Fees allocable to the specific nonconforming Software that have been paid by Licensee to Licensor hereunder.

C. EXCEPT AS EXPRESSLY SET OUT HEREIN, LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS CONCERNING THE SOFTWARE AND/OR DOCUMENTATION, INCLUDING ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF DESIGN, QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OR PERFORMANCE AND ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS THAT MIGHT OTHERWISE ARISE DURING THECOURSE OF DEALING, USAGE OR TRADE AND THOSE WHICH MAY BE IMPLIED BY LAW.

D. WITHOUT LIMITING THE FOREGOING, LICENSEE ACKNOWLEDGES THAT THE SOFTWARE IS NOT DESIGNED OR LICENSED FOR USE IN OR IN CONNECTION WITH ANY APPLICATIONS OR SYSTEMS THAT ARE CRITICAL, HIGH RISK, OR REQUIRE STABLE OPERATION AND COULD RESULT INSIGNIFICANT RISK OF LOSS OR ACTUAL LOSS AS A RESULT OF APPLICATION FAILURE OR SHUTDOWN OR OTHER ERRORS OR COMPLICATIONS ARISING FROM TECHNICAL OR HUMAN ERROR, INCLUDING WITHOUT LIMITATION, NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, SURGICAL IMPLANTS, LIFE SUPPORT SYSTEMS, OR WEAPON SYSTEMS IN WHICH THE FAILURE OF (OR INABILITY TO ACCESS) THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. LICENSOR SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATION, WARRANTY OR CONDITION OF FITNESS FOR SUCH PURPOSES.

E. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS WARRANTY SHALL BE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED. THIS SECTION SETS FORTH LICENSEE’S SOLE REMEDY AND LICENSOR’S SOLE LIABILITY IN RESPECT OF THE SOFTWARE.

F.Except as expressly authorized by Licensor in writing, certain Third Party Software shall only carry the warranties provided by the owners of such Software and Licensor gives no warranties for such third party software.

12. SOFTWARE INDEMNIFICATION.

A.Licensor shall (i) indemnify, defend and hold Licensee harmless in respect of any claim, suit or proceeding brought against Licensee based solely on a claim that the Software infringes any enforceable copyright or trademark right in Canada or the United States of America of any third party or the use thereof for its permitted use, constitutes an infringement of any claim of any Canadian and United States patent (a “Claim”), provided Licensee notifies Licensor promptly of such Claim in writing and Licensor is given the right to control the defense of such Claim.

B.Licensor shall have complete control over any such suit or proceeding including,without limitation, the right to settle same on Licensee’s behalf on any terms Licensor deems desirable (in the sole exercise of its discretion) so long as it is at no cost to Licensee. Licensee shall have the right to be independently represented by counsel of Licensee’s own choice and at Licensee’s own cost. Subject to the limitations of liability contained herein, Licensor agrees to pay such damages and costs finally awarded against Licensee or payable pursuant to a settlement agreement (approved of by Licensor) in connection with such suit or proceeding.

C. If the use of any of the Software may be enjoined as a result of any Claim or other action, Licensor may, at its sole option and expense: (i) obtain for Licensee the right to continue using the Software; or modify the Software so that it no longer infringes; or (ii) provide Licensee with reasonable alternate Software, as applicable, providing substantially similar features, functions and capability; or (iii) refund to Licensee the License Fees paid by Licensee for the Software in the one (1) year period preceding the event giving rise to such action and Licensee shall cease using the Software.

D. Licensor shall have no liability hereunder for infringement claims based upon modifications by Licensee, or on Licensee’s behalf, to the Software, the combination of the Software with any other software, equipment, system or process or use of the Software other than as described in the Documentation and authorized hereunder.

E.The foregoing sets out the entire liability of Licensor and the sole obligations of Licensor to Licensee in respect of any claim that the Software infringes any third party rights.

13. LIMITS OF LIABILITY.

A.LICENSOR SHALL NOT BE LIABLE HEREUNDER FOR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBILITY OR EXISTENCE.

B.IN NO EVENT SHALL THE TOTAL AND CUMULATIVE LIABILITY OF LICENSOR UNDER THIS AGREEMENT EXCEED THE LICENSE FEES PAID BY LICENSEE TO LICENSOR IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FINAL EVENT GIVING RISE TO SUCH LIABILITY.

14. Proprietary Information; Equitable Relief.

A.All information concerning or embedded in Software (including but not limited to source code, object code, and training materials), and Documentation is confidential and the property of Licensor (or its suppliers) and shall be considered Licensor’s (or its suppliers’) proprietary information (“Proprietary Information”) whether or not the information is marked as “confidential information”. Proprietary Information includes commercially valuable, substantial trade secrets, the design and development of which reflect the effort of skilled development experts and investment of considerable amountsof time and money.

B.Licensee acknowledges: (a) any use of Software or Documentation in a manner inconsistent with this Agreement or (b) any other misuse of Proprietary Information of Licensor (or its suppliers), will cause immediate irreparable harm to Licensor (or its suppliers) for which there is no adequate remedy at law. Licensee agrees that Licensor (or its suppliers) shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such misuse or threatened misuse by Licensee. The parties agree and stipulate that Licensor shall be entitled to such injunctive relief without posting of a bond or other security; provided, however, that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in an amount equivalent to $1,000 CAD shall be sufficient. Nothing contained herein shall limit Licensor’s right to any remedies at law, including the recovery of damages from Licensee for breach of this Agreement.

C. Upon request, Licensee agrees to provide Licensor with a signed copy of this Agreement.

15. Export Regulations.

Licensee is licensed to use the Software in the country where it was delivered to Licensee. Because of the country(ies) of origin of the Software, the exportation of the Software to certain countries that are subject to Canadian, United States, United Nations, European Union or other similar trade sanctions may be prohibited. Licensee is responsible for complying with all applicable trade control regulations with respect to the Software. Licensee’s export, transfer, assignment or other movement of the Software in violation of applicable trade control regulations will result in the automatic termination of this Agreement and all rights to use the Software.

16. General.

A.Licensee may not assign this Agreement, nor any aspect of the Software, nor delegate any of Licensee’s duties, in whole or in part, without the prior written consent of Licensor.

B.Article, section and paragraph numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular Section of this Agreement shall be deemed to include reference to any and all subsections thereof. Despite the possibility that one party or its representatives may have prepared the initial draft of this Agreement or any provision thereof or played a greater role in the preparation of subsequent drafts, the parties agree that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement, no provision hereof shall be construed in favor of one party on the ground that such provision was drafted by the other.

C. This Agreement constitutes the complete and exclusive statement of the agreement between Licensee and Licensor with respect to the subject matter hereof and supersedes all prior proposals, understandings, and agreements, whether oral or written, between the parties with respect to the subject matter hereof.

D. Except as otherwise expressly provided herein, this Agreement may not be modified, amended, or in any way altered except by a written agreement signed by the parties hereto that states it is an amendment to this Agreement. It is expressly agreed that the terms and conditions of these Terms and Conditions shall supersede the terms or conditions in any concurrently or subsequently provided Order Confirmation or other document, unless such terms or conditions expressly amend or supplement this Agreement and such amendment or supplement is expressly agreed to in writing by Licensor.

E. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws in force in the Province of Alberta, Canada (without reference to conflicts of laws principles). The competent courts in Calgary, Alberta, Canada shall each have non- exclusive jurisdiction over all disputes relating to this Agreement. Each of the parties hereto irrevocably attorns and consents to the jurisdiction of such courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement and that in no event shall this Agreement be governed by the conflict of laws rules of any jurisdiction.

F.Licensor may use Licensee’s name and logo in connection with any marketing, advertising, or other publicity of the Software.

G. If any provision of this Agreement or its applications to particular circumstances is determined by a court of competent jurisdiction to be invalid or unenforceable, that provision (or its application to those circumstances) shall be deemed stricken and the remainder of this Agreement (and the application of that provision to other circumstances) shall continue in full force and effect insofar as it remains a workable instrument to accomplish the intent and purposes of the parties; the parties shall replace the severed provision with the provision that will come closest to reflecting the intention of the parties underlying the severed provision but that will be valid, legal, and enforceable.

H. No purported waiver by any party of any default by any other party of any term or provision contained herein (whether by omission, delay or otherwise) shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein.

I. Sections 8, 10, 11(C) -(E), 13, 14, 16(C), and 16(E) – (I) shall survive the expiration or termination of this Agreement by either party for any reason.