License agreement

The preamble is part of the present Agreement.

The following terms are used in this Agreement, as defined in this paragraph: 

2.1 "Licensed Software" shall mean existing, newly released and future Software products composed of InnovMetric’s computer programs in machine-readable compiled code, intermediate code, or interpreted form, and associated program updates and upgrades, add-ons, and related items, such as hardware (dongles) and software keys. 

2.2 "Licensed Materials" shall mean "online" or electronic user manuals and specifications, and any other media, printed materials, and "online" or electronic documentation, provided by InnovMetric to the Licensee for use with Licensed Software. 

2.3 "Licensed Products" shall mean existing, newly released and future Licensed Software and the Licensed Materials, purchased or free, commercialized under the tradenames PolyWorks®, including but not limited to PolyWorks|Inspector™, PolyWorks|Modeler™, PolyWorks|Reviewer™, PolyWorks|Talisman™, PolyWorks|DataLoop™, PolyWorks|PMI+Loop™, PolyWorks|ReportLoop™, and PolyWorks|AR™. 

2.4 "Error" shall mean any reproducible functional defect in the Licensed Software resulting in the Licensed Software not conforming with the Licensed Materials. 

2.5 "Internal Use" shall mean the use of Licensed Software on the Licensee's computing devices. 

2.6 "Users" shall mean the directors, officers, and employees of the Licensee or any other person using the Licensed Products. 

2.7 "Open Source Library" shall mean object code that is statically or dynamically linked to the Licensed Software and that contains, or is derived from, any computer source code licensed pursuant to a license that is identified as an open source license by the Open Source Initiative (opensource.org) or other similar licensing or distribution models for computer code offered free of charge.

3.1 Terms

InnovMetric hereby grants the Licensee a nonexclusive, non-transferable license to use the Licensed Products solely for its own internal use only and for no other purpose.  

3.1.1 For purchased or free perpetual Licenses only—excluding licenses leased for a predetermined period of time, evaluation licenses, and temporary "one-year use" licenses—the license is granted for an indefinite period. 

3.1.2 For licenses leased for a predetermined period of time, for evaluation licenses, and for temporary "one-year use" licenses, the license is granted for a period beginning at the installation date and for the duration of the lease, evaluation period, "one-year use" period, or another period as agreed between InnovMetric and Licensee. Therefore, the obligations imposed on the Licensee by this EULA in case of predetermined period of time, for evaluation licenses, and for temporary "one-year use" licenses shall be limited to the term or lease period of such license, except for the obligations listed in section 4 that shall survive the termination of this Agreement. 

3.2 Subscriptions 

For subscriptions purchased for a predetermined period of time, the license is granted for the duration of the subscriptions to the first differentiated users or devices that connect to the license server. Users are allowed the concurrent use of two different computing devices. 

3.3 License Sharing and Borrowing 

Notwithstanding section 3.1, for the duration of subscription outlined in section 3.2, InnovMetric explicitly authorizes a Licensee to share the following items with third parties with whom a Licensee has a contractual relationship ("Third Parties"). 

3.3.1 Hyperlinks that refer to downloadable versions of Licensed Products - to permit Third Parties to install the Licensed Products on their own computers. 

3.3.2 PolyWorks|DataLoop licenses - to allow Third Parties to connect to Licensee’s PolyWorks|DataLoop Core Server. 

3.3.3 PolyWorks|Inspector licenses - to allow Third Parties to start PolyWorks|Inspector on their own computers.  

3.3.4 The only authorized license-sharing method is through the PolyWorks|DataLoop Core Server, upon prior formal authorization from InnovMetric. InnovMetric reserves the right to cancel the Third Parties’ right to use the items described herein, should the Third Parties utilize them in a manner and/or for a purpose outside the scope allowed by section 3.  

3.4 It is the responsibility of the Licensee to clearly advise all Users, as described in section 2.6, of all obligations contained in this Agreement. 

4.1 Right to Use Licensed Products

Licensee acknowledges that no right, title, or interest, other than the right to use the Licensed Products, is transferred or granted by this Agreement. Licensee is prohibited from selling, renting, leasing, making available to third parties, and sublicensing the Licensed Products. Notwithstanding the foregoing sentence, the Licensee may share their PolyWorks|DataLoop and PolyWorks|Inspector licenses with Third Parties in strict compliance with, and to the extent permitted by, the provisions outlined in section 3.3. 

4.2 Open Source Libraries

The use and operation of the Licensed Software may require the concurrent use of the Open Source Libraries listed at the following hyperlink: https://downloads.polyworks.com/doc/PolyWorksThirdPartyNotices.pdf (the "List of Open Source Libraries"). Licensee acknowledges that InnovMetric shall be entitled to update the List of Open Source Libraries, as the use of Open Source Libraries varies upon each new release. InnovMetric represents and warrants that it has the right to authorize the use of such Open Source Libraries by the Licensee in conjunction with the Licensed Software, in full compliance with the licensing terms of such Open Source Libraries. Where and to the extent required pursuant to the licensing terms of such Open Source Libraries, InnovMetric will provide or make available a copy of the source code of such Open Source Libraries to the Licensee. Licensee's use of such Open Source Libraries is governed by the terms of this Agreement, not the usual licensing terms of such Open Source Libraries. InnovMetric represents and warrants that it is authorized to license the use of such Open Source Libraries as per the terms of this Agreement. Licensee releases all third-party owners or licensors of such Open Source Libraries of any and all liability flowing from representations, conditions, warranties and covenants made or provided pursuant to this Agreement that go above and beyond those representations, conditions, warranties and covenants made or provided under the usual licensing terms of such Open Source Libraries, as applicable between InnovMetric and such third-party owners or licensors. 

4.3 Confidential Information

Licensee acknowledges that the Licensed Products constitute trade secrets, are furnished by InnovMetric to Licensee in confidence, and contain proprietary and confidential information. The placement of a copyright notice on any portion of the Licensed Products will neither be construed to mean that such portion has been published, nor derogate from any claim that such portion is a trade secret or contains proprietary and confidential information. 

4.4 Nondisclosure

Licensee agrees that it will not, under any circumstances, except as expressly authorized hereby, distribute or disseminate any information contained in or disclosed by the Licensed Products, including but not limited to any technical information, design concepts, processes, procedures, formulae or algorithms, to any person except to those of its employees and/or other Users whose access is necessary for Licensee's use as set forth above. 

Licensee will take appropriate action, by agreement or otherwise, with such employees and/or other Users, to inform them of the trade secret, proprietary, and confidential nature of the Licensed Products so as to obtain their compliance with the terms of this section. In the event that the Licensee, or any of its present or former employees and/or other Users breach the confidentiality obligations of this Agreement, Licensee shall be jointly and severally liable to InnovMetric for any loss incurred by InnovMetric resulting directly or indirectly from such breach. 

4.5 Restrictions on Copying

Licensee will hold the Licensed Products in strict confidence. InnovMetric hereby grants the Licensee the right to make copies of the Licensed Products for backup purposes only. 

4.6 Reverse Engineering

Licensee is prohibited from reverse engineering, decompiling, disassembling, or creating any derivative work of the Licensed Products. Licensee shall not allow anyone to modify, disassemble, or decompile the Licensed Products, or create any derivative work in any possible way. 

4.7 Relief

Licensee acknowledges and agrees that the Licensed Products, as well as all other information in whatever medium disclosed to Licensee hereunder, are unique and commercially valuable and that any breach by Licensee of the terms of this Agreement with respect to protection against disclosure or distribution of the Licensed Products or such information would result in an irreparable and continuing injury to InnovMetric for which money damages would be inadequate. In the event of such a breach or anticipated breach by the Licensee, InnovMetric shall be entitled to immediate injunctive relief or any other recourse and to specifically enforce the terms of this Agreement, in addition to any other remedy to which InnovMetric may be entitled at law or in equity. 

4.8 Noncompetition

Licensee agrees that it shall not use the Licensed Products to assist in the development or design of a computer software program or other technology that is intended to provide functionalities, or graphical user interfaces (GUI), substantially similar or similar to the Licensed Products. 

4.9 Development of Utility

The Licensed Software shall not be used to develop, nor shall the Licensee market, any conversion utility or aid specific to the Licensed Software enabling or facilitating users to convert from the Licensed Software to alternative software not marketed by InnovMetric. 

4.10 Floating License Usage Report

The Licensee hereby acknowledges that the grant of a license to use the Licensed Products pursuant to a 'floating license' mode is subject to pricing which may vary upon the actual place of use of the Licensed Products. By purchasing a floating license, the Licensee agrees that InnovMetric may request, not more than once a year, a written usage report. In these instances, an authorized officer of the Licensee would then certify in writing the annual percentage of floating license usage per country. The Licensee shall cooperate with any reasonable requests of InnovMetric to facilitate any such audit. 

InnovMetric, its affiliates and suppliers retain all rights, titles, and interests in and to the Licensed Products. The Licensed Products are the intellectual property of InnovMetric, its affiliates, and its suppliers. The Licensed Products are protected by law, including without limitation the copyright laws of Canada, the United States and other countries, and by international treaty provisions. PolyWorks is a registered trademark of InnovMetric. InnovMetric, PolyWorks|Inspector, PolyWorks|Modeler, PolyWorks|Reviewer, PolyWorks|Talisman, PolyWorks|DataLoop, PolyWorks|PMI+Loop, PolyWorks|ReportLoop and PolyWorks|AR are trademarks of InnovMetric. All other trademarks are the property of their respective owners. Licensee may not alter any trademarks, trade names, product names, logos, copyrights or other proprietary notices, legends, symbols, or labels in the Licensed Products. Licensee acknowledges that no right, title, or interest, other than the right to use the Licensed Products as described herein is transferred by the present Agreement. 

6.1 Ownership of Copyrights

InnovMetric warrants that it has the right to grant this license to use the Licensed Products as contemplated hereunder. 

6.2 Infringement

InnovMetric will indemnify and hold harmless the Licensee from and against any action brought against Licensee alleging that the Licensed Products infringe third-party intellectual property rights, to the extent that: 
6.2.1 InnovMetric is notified promptly in writing by the Licensee of the claim; 
6.2.2 InnovMetric has sole control of the defense of the claim and all negotiations of any settlement or compromise, provided that any such settlement or compromise provides for the general release of all claims against InnovMetric; 
6.2.3 the claim is not based on the use of a Licensed Software's version other than the most recent and nonmodified version by the Licensee; 
6.2.4 the Licensee has not prejudiced InnovMetric's position in any way by, without limiting the generality of the foregoing, its admissions and/or declarations. 

InnovMetric shall have the opportunity, where a third party claims an infringement of its intellectual property, at all times, either before, during or after any proceedings, to provide the Licensee with the right to use such element of intellectual property or replace same in order to cease such infringement. 

6.3 Nonapplication of Warranty

Paragraph 6.2 of this section is not applicable if the claim is based upon: 
6.3.1the use of a release other than a current unaltered release of Licensed Software if the infringement would have been avoided by the use of a current unaltered release of Licensed Software; 
6.3.2 the combination, operation, or use of any Licensed Products with any programs or software not provided by InnovMetric, if the infringement would have been avoided by the combination, operation or use of Licensed Products with other programs, software or data; or 
6.3.3the use of Licensed Software in an operating environment other than the operating environment specified for it by InnovMetric if the infringement would have been avoided by use in the operating environment specified by InnovMetric. 

6.4 Documentation

InnovMetric warrants that the Licensed Software conforms with Licensed Materials for a period of twelve (12) months from the date of this Agreement, unless such term is otherwise renewed or extended. 

6.5 Limitation of Warranty

Except as expressly provided in this section, InnovMetric makes no warranty, express or implied, with respect to the Licensed Products. Without limiting the generality of the foregoing, InnovMetric makes no warranty or merchantability or fitness for a particular purpose or that the Licensed Products are error free or that the Licensee's use of the Licensed Products will be uninterrupted. InnovMetric will promptly correct all errors discovered within a period of ninety (90) days from delivery, upon notification by the Licensee, if the following conditions are and were always respected since the delivery date: 
6.5.1 the Licensed Software is and was properly used as set forth in the Licensed Materials; 
6.5.2 the Licensed Products were not changed nor modified by Licensee or a third party upon the Licensee's request; 
6.5.3 the Licensed Products were not used in ultrahazardous activities; 
6.5.4 the Licensed Products have not been subjected to abnormal physical or electrical stress, misuse, negligence, or accident. 

6.6 Prerelease Software Product

If the Licensed Software the Licensee has received with this Agreement is a precommercial release or beta Software ("Prerelease Software"), the Licensee acknowledges that the Prerelease Software version does not represent the final product from InnovMetric, and may contain bugs, errors, and other problems that could cause system or other failures and data loss. Consequently, the Prerelease Software is provided to the Licensee "AS-IS", and InnovMetric disclaims any warranty or liability obligations of any kind to the Licensee. 

7.1 Default

Either party may terminate this Agreement upon written notice to the other party without advance notice if the other party materially breaches the terms of this Agreement and such default continues uncorrected for a period of ten (10) days after notice in writing thereof to such other party. 

7.2 Bankruptcy or Insolvency 

The fact that one of the parties becomes insolvent or is adjudged bankrupt; makes a proposal for the benefit of its creditors; has a receiver appointed; files a petition of bankruptcy; initiates reorganization proceedings; causes or permits to occur any similar event under the laws of its domicile; or ceases to conduct its operations in the normal course of business; or is wound up will be interpreted as a default under the terms of the present Agreement. 

7.3 Effect of Termination 

7.3.1 License. Upon termination, all licenses granted pursuant to this Agreement and any Maintenance and Support Agreement executed by both parties will cease.  

7.3.2 Return and Destruction of Proprietary Information. Licensee will immediately return to InnovMetric the Licensed Products and all whole or partial copies thereof, including all backup copies, modifications, and documentation thereof and purge all copies of the Licensed Products from all computer processors or storage media on which the Licensee has installed or permitted others to install Licensed Products. Licensee will certify in writing to InnovMetric no later than thirty (30) days after termination that it has entirely complied with this requirement and that no Proprietary Information remains in its possession. 

7.3.3 Compliance with Agreement Notwithstanding Termination. Notwithstanding the termination of the present Agreement, the Licensee agrees to comply with section 4 of said Agreement. 

IN NO EVENT WILL INNOVMETRIC, ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR (1) SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR (2) ANY DAMAGES RESULTING FROM LOSS OF USE, OR LOSS OF DATA, OR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE LICENSED PRODUCTS OR ANY INFORMATION PROVIDED HEREUNDER, WHETHER IN AN ACTION BASED ON CIVIL LIABILITY, CONTRACT OR TORT, INCLUDING NEGLIGENCE. IN NO EVENT WILL INNOVMETRIC, ITS AFFILIATES OR SUPPLIERS’ TOTAL LIABILITY FOR ANY DAMAGES AWARDED IN ANY ACTION BASED ON CIVIL LIABILITY, CONTRACT OR TORT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID FOR THE PRESENT LICENSE EVEN IF INNOVMETRIC, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INNOVMETRIC WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE PRODUCTS IN ANY HIGH-RISK ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT, OR WEAPONS SYSTEMS. 

9. MISCELLANEOUS

9.1 Notice

Any notice, request, instruction, legal proceedings or other instrument to be given, served, or provided under this Agreement by either party shall be deemed given and received when in writing and delivered personally or by confirmed telefax or five (5) days after being sent by certified or registered mail, postage prepaid, to InnovMetric or Licensee at the address of each as indicated below, provided that either party may change such address, only by written notice to the other party: 

If to InnovMetric: InnovMetric Software Inc., 2014 Cyrille-Duquet, Suite 310, Quebec, Quebec, Canada, G1N 4N6, tel: (418) 688-2061, fax (418) 688-3001. 

If to Licensee: Current address of the Licensee as mentioned on the purchase order or as otherwise specified by the Licensee. 

9.2 Waiver

No delay or failure of either party in exercising any right and no partial single exercise of any right shall be deemed to constitute a waiver of that right or any other right under this Agreement. No action arising out of this Agreement, regardless of form, may be brought by either party more than one (1) year after the cause of action has accrued. 

9.3 Severability

If any provision, or portion thereof, of this Agreement is declared invalid by a Court of law or is unenforceable under any applicable statute or rule of law, it is to that extent deemed to be omitted. 

9.4 No Assignment

The rights of the Licensee under this Agreement may not be assigned, in whole or in part, and any attempted assignment of rights, duties or obligations hereunder without such consent shall be null and void. 

9.5 Waiver of the Right to Audit

InnovMetric does not permit the Licensee or any third party acting on behalf of the Licensee to have access to and/or to audit InnovMetric’s books or other financial records. Provided the Licensee’s codes of conduct or any other policy foresees the Licensee to have such right as part of the compliance process, by accepting InnovMetric’s End User License Agreement, the Licensee waives its rights to have access to and/or audit InnovMetric’s books and other financial records. 

9.6 Amendments and Modifications

This Agreement may not be amended, altered, or modified and no right hereunder may be waived except by a written agreement signed by authorized representatives of the parties. 

9.7 Entire Understanding

This Agreement sets forth the entire understanding between the parties with respect to the matters set forth herein. This Agreement shall supersede all prior representations, understandings or agreements, whether written or oral, express or implied, with respect thereto and prevail over any other party’s terms signed in the present and in the future, except where it is expressly agreed to give priority to another party’s End-User License Agreement. 

9.8 Governing Law

This Agreement is governed exclusively by the laws applicable in the Province of Quebec, Canada. Notwithstanding any other agreement or provision to the contrary, the parties acknowledge that the license was acquired in the Province of Quebec, Canada. Any other treaty, convention or contract according to international laws or the United Nations Convention do not apply. The Licensee irrevocably agrees that the courts of the Province of Quebec, Canada shall have exclusive jurisdiction in relation to any claim, dispute, or difference concerning the present Agreement and any matter arising therefrom, and irrevocably waive any right that it may have to object to an action being brought in those courts, or to claim that the action has been brought in an inconvenient forum, or that those courts do not have jurisdiction. Nothing in this clause shall limit the right of InnovMetric to take proceedings against Licensee in any other court of competent jurisdiction. 

9.9 Language

InnovMetric, and the Licensee by his acceptance below, acknowledge having requested that this document be drafted in English only. InnovMetric Logiciels Inc., et le Licencié par son acceptation des présentes, reconnaissent qu’ils ont demandé que le présent document soit rédigé en anglais seulement.