BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”, “Agreement”) between TURNIUM TECHNOLOGY GROUP, INC. (“Licensor”) and you (“Licensee”, “you”, “your”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, THAT YOU PAID FOR THE SOFTWARE.

LICENSOR PROVIDES THE SOFTWARE ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENCE THE SOFTWARE TO LICENSEE AND YOU MUST NOT INSTALL OR USE THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENCE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.

CONSENT TO USE OF DATA: Licensee agrees that Licensor may collect and process technical and related Customer Data about Licensee and Licensee’s use of the Software, as described below, and may transfer such information to its affiliate companies or third-party service providers, for such purposes, from time to time. To the extent that this information constitutes Personal Information, Licensor shall be the controller and processor of such Personal Information. To the extent that it acts as a controller and processor, each party shall comply at all times with its obligations under applicable Privacy and Data Protection Requirements. If you have questions or complaints, the Turnium Privacy officer can be contacted at Privacy@ttgi.com.

LICENSEE AGREES THAT LICENSOR MAY COLLECT AND PROCESS THE FOLLOWING TYPES OF DATA:

  1. Registration Data: Licensor may collect full legal name, company name (if applicable), company personnel names and email addresses, billing address(es), business location addresses, and credit card or other payment information. This information will be used to administer Licensee’s account, for billing, verification and authentication purposes and to contact Licensee or its Authorized Users in relation to the same. This information may be disclosed to collections agencies for the purpose of collecting payment on unpaid accounts.
  2. Usage and Development Data: Licensor may collect data about electronic network activity, such as system logs, traffic, URLs, metadata, IP addresses, and statistics about use of the Software which Licensor uses for analytics including, predictive analytics. Aggregate information that does not personally identify an individual may be kept by Licensor and such aggregate statistics may be used or disclosed for purposes of product development, optimization, and marketing. Product development and optimization may involve machine learning processing of such data. Licensor may disclose industry trends related its customers, which are derived from use of the Software, that do not include any Personal Information, to the public for marketing purposes, and to third party service providers for the purpose of providing the Software and associated services.
  3. Security Data: If Licensee purchases security services from Licensor, then Licensor may collect Customer Data, communications content, and information provided through dashboards or portals associated with the security and firewall solutions, information provided in troubleshooting requests and security inquiries regarding files and systems, and may use that information for the purpose of providing firewall and other security services as requested by Licensee.
  4. Support and Compliance: Licensor may collect data about electronic network activity, such as system logs, traffic, URLs, metadata, IP addresses, and statistics about use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through the provision of maintenance and support services. Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to improving the performance of the Software or developing Updates, verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.

1. Definitions
For purposes of this Agreement, the following terms have the following meanings:

  1. AB PIPA” means the Personal Information Protection Act, R.S.A. 2003, c. P-6.5.
  2. Authorized Users” means solely those individuals authorized to use the Software by the Licensee pursuant to the licence granted under this Agreement.
  3. BC PIPA” means the Personal Information Protection Act, R.S.B.C. 2003, c. 63.
  4. Customer Data” means any and all information, data, materials, works, expressions or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of Licensee or any Authorized User for Processing by or through the Software, or (b) collected, downloaded, or otherwise received by Licensor or the Software for Licensee or any Authorized User pursuant to this Agreement or at the written request or instruction of Licensee or such Authorized User. All output, copies, reproductions, improvements, modifications, adaptations, translations, and other derivative works of, based on, derived from, or otherwise using any Customer Data are themselves also Customer Data. For the avoidance of doubt, Customer Data includes all Personal Information.
  5. Documentation” means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.
  6. End-User Location” means a Licensee’s physical place of business, which may include one or more computers or computer networks at the same location;
  7. GDPR” means the General Data Protection Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
  8. Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  9. Licensee Fees” means any fee paid or agreed to be paid by Licensee to Licensor, directly or indirectly, for the licence to use the Software;
  10. Person” means an individual, corporation, partnership, joint venture, governmental authority, unincorporated organization, trust, association or other entity.
  11. Personal Information” means any information that Licensor collects, receives or obtains, from or on behalf of Licensee or any of its Authorized Users about an identifiable individual, including where there is a serious possibility that the information may identify a person, either alone or in combination with other information, and any other information relating to an identified or identifiable individual. Personal Information includes such information of or pertaining to Licensee’s personnel, directors, officers, agents, suppliers, contractors, investors, or customers and all personal information as defined under PIPEDA, AB PIPA, BC PIPA and QB PIPA, and “Personal Data” as that term is defined in the GDPR.
  12. PIPEDA” means the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, as amended by the Digital Privacy Act, S.C. 2015, c. 32.
  13. Privacy and Data Protection Requirements” means all applicable federal and provincial and foreign laws and regulations relating to the processing, protection or privacy of the Personal Information, including, where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction. This includes, but is not limited to, PIPEDA, AB PIPA, BC PIPA, QB PIPA, and the GDPR.
  14. Processing, processes or process” means any activity that involves the use of Personal Information or that the relevant Privacy and Data Protection Requirements may otherwise include in the definition of processing, processes or process. It includes obtaining, recording or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing or destroying it. Processing also includes transferring Personal Information to third parties.
  15. QB PIPA” means An Act Respecting the Protection of Personal Information in the Private Sector, CQLR, c. P-39.1.
  16. Security Breach” means any act or omission that compromises the security, confidentiality, or integrity of Personal Information or the physical, technical, administrative or organizational safeguards put in place to protect it.
  17. Software” means the Licensor’s software and associated hardware, including any virtual instances thereof, or Updates thereto, which the Licensee had downloaded, installed, or used.
  18. Term” has the meaning set forth in Section 10.
  19. Third Party” means any Person other than Licensee, Authorized User, or Licensor.
  20. Update” has the meaning set forth in Section 7(b).

2. Licence Grant and Scope
Subject to Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable limited licence during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement. This licence grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:

  1. Install the Software in accordance with the Documentation at one End-User Location, unless expressly agreed otherwise, and permit Authorized Users to utilize the Software. In addition to the foregoing, Licensee has the right to make one (1) copy of the Software solely for archival purposes and a reasonable number of copies of the Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as any copy installed in accordance with the preceding sentence is inoperable and, provided further that Licensee de-installs and otherwise deletes such inoperable copies. All copies of the Software made by the Licensee:
    (i) will be the exclusive property of the Licensor;
    (ii) will be subject to the terms and conditions of this Agreement; and
    (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
  2. Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.
  3. Download or otherwise make one (1) copy of the Documentation per copy of the Software permitted to be installed in accordance with this Agreement and use such Documentation solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee:
    (i) will be the exclusive property of Licensor;
    (ii) will be subject to the terms and conditions of this Agreement; and
    (iii) must include all trademark, copyright, patent and other Intellectual Property Rights notices contained in the original.
  4. Transfer any copy of the Software from one computer to another, provided that:
    (i) the number of End-User Locations on which the Software is installed at any one time does not exceed the number permitted under Section 2(a); and
    (ii) Licensee notifies Licensor in writing of each such transfer, including in such notice the information required under this EULA for each computer on which the Software is installed.

3. Third Party Materials
The Software may include software, content, data or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to or different, or both, from those contained in this Agreement (“Third Party Licences”). Licensee is bound by and shall comply with all Third party Licences. Any breach by Licensee or any of its Authorized Users of any Third party Licence is also a breach of this Agreement.

4. Use Restrictions

  1. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
    (i) use (including make any copies of) the Software or Documentation beyond the scope of the licence granted under Section 2;
    (ii) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
    (iii) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
    (iv) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
    (v) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
    (vi) except as expressly set forth in Section 2(a) and Section 2(c), copy the Software or Documentation, in whole or in part;
    (vii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service (SaaS), cloud or other technology or service;
    (viii) use the Software or Documentation in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including:

    1. power generation systems;
    2. aircraft navigation or communication systems, air traffic control systems or any other transport management systems;
    3. safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and
    4. military or aerospace applications, weapons systems or environments;
      without the express written consent of Licensor;

    (ix) use the Software or Documentation in violation of any law, regulation or rule; or
    (x) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor’s commercial disadvantage.

5. Responsibility for Use of Software
Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this Agreement.

6. Compliance Measures

  1. The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 3. Licensee shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.
  2. On Licensor’s written request, Licensee shall conduct a review of its and the use of the Software by its Authorized Users and certify to Licensor in a written instrument signed by an officer of Licensee that it is in full compliance with this Agreement or, if Licensee discovers any non-compliance:
    (i) Licensee shall immediately remedy such non-compliance and provide Licensor with written notice thereof. Licensee shall provide Licensor with all access and assistance as Licensor requests to further evaluate and remedy such non-compliance.
    (ii) If Licensee’s use of the Software exceeds the number of copies or Authorized Users permitted under the licence, Licensor shall have the remedies set forth in Section 6(d).
  3. During the Term, Licensor may, in Licensor’s sole discretion, audit Licensee’s use of the Software to ensure Licensee’s compliance with this Agreement, provided that (i) any such audit shall be conducted on not less than 15 days prior notice to Licensee, and (ii) no more than three audits may be conducted in any twelve-month period except where good cause is shown. Licensor also may, in its sole discretion, audit Licensee’s systems within six months after the end of the Term to ensure Licensee has ceased use of the Software and removed all copies of the Software from such systems as required hereunder. The Licensee shall fully cooperate with Licensor’s personnel conducting such audits and provide all reasonable access requested by the Licensor to records, systems, equipment, information and personnel, including machine IDs, serial numbers and related information. Licensor shall only examine information directly related to the Licensee’s use of the Software. Licensor may conduct audits only during Licensee’s normal business hours and in a manner that does not unreasonably interfere with the Licensee’s business operations.
  4. If the audit/any of the measures taken or implemented under this Section 6 determines that the Licensee’s use of the Software exceeds or exceeded the use permitted by this Agreement, then:
    (i) Licensee shall, within 30 days following the date of such determination by Licensee or Licensor’s written notification thereof, pay to Licensor the retroactive Licence Fees for such excess use and, unless Licensor terminates this Agreement under Section 6(d)(iii), obtain and pay for a valid licence to bring Licensee’s use into compliance with this Agreement. In determining the Licensee Fee payable in accordance with the foregoing, (i) unless Licensee can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by Licensor hereunder and continued uninterrupted thereafter, and (ii) the rates for such licences shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed before its commencement (or deemed commencement).
    (ii) If the use exceeds or exceeded the use permitted by this Agreement by more than 25%, Licensee shall also pay to Licensor, within 30 days following the date of Licensor’s written request therefor, Licensor’s reasonable costs incurred in conducting the audit.
    (iii) If the use exceeds or exceeded the use permitted by this Agreement by more than 25%, Licensor shall also have the right to terminate this Agreement and the licence granted hereunder, effective immediately upon written notice to Licensee.

Licensor’s remedies set forth in this Section 6(d) are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.

7. Maintenance and Support

  1. Subject to Section 7(c), the licence granted hereunder entitles Licensee to the basic software maintenance and support services described from time to time on Licensor’s website located at https://turnium.com for the length of the Term.
  2. Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, “Updates”) as Licensor makes generally available free of charge to all Licensees of the Software then entitled to maintenance and support services. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide some or all Updates via download from a website designated by Licensor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.
  3. Licensor reserves the right to periodically perform maintenance to the Software, which maintenance activities may require service outages to the Licensee. Licensor shall make commercially reasonably efforts to notify Licensee in advance of such outages. Licensor has no obligation to provide maintenance and support services, including Updates:
    (i) for any but the most current version or release of the Software;
    (ii) for any copy of Software for which all previously issued Updates have not been installed;
    (iii) if Licensee is in breach under this Agreement; or
    (iv) for any Software that has been modified other than by or with the authorization of Licensor, or that is being used with any hardware, software, configuration or operating system not specified in the Documentation or expressly authorized by Licensor in writing.

Licensor’s remedies set forth in this Section 6(d) are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.

8. Intellectual Property Rights
Licensee acknowledges and agrees that the Software and Documentation are provided under licence, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the licence granted and subject to all terms, conditions and restrictions under this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor, at Licensor’s sole expense, in any legal action taken by Licensor to enforce its Intellectual Property Rights.

9. Personal Information

  1. Permitted Use. Licensor shall not cause or permit any Personal Information to be Processed in any manner or for any purpose other than in compliance with the obligations and restrictions set forth in this Agreement.
  2. Ownership and Treatment of Personal Information. As between the Licensee and Licensor, Licensee is and shall remain the sole and exclusive owner of all right, title, and interest in and to Personal Information. Without limiting any other representation, warranty, condition or obligation of Licensor under this Agreement, Licensor represents, warrants and covenants that:
    (i) during the Term and thereafter in perpetuity, it will not Process or otherwise undertake or refrain from any act with respect to any Personal Information in any manner, including any actual or attempted Processing thereof, except for the sole purpose of providing the Software and associated maintenance and support services and in compliance with: (i) the express terms and conditions of this Agreement or as Licensee may hereafter expressly direct in advance in writing; and (ii) Privacy and Data Protection Requirements;
    (ii) except as Licensee or an Authorized User may submit to Licensor for purposes of Licensee’s or such Authorized User’s use of the Software, or as Licensee may hereafter expressly direct in advance in writing, Licensor will not under or in connection with this Agreement or any transaction or arrangement hereunder collect any Personal Information from or in connection with Licensee’s or any Authorized User’s access to or use of the Software, or through any access Licensor may have to the Licensee systems, including through any cookies, applets, beacons, or other data-mining methods or technologies; and
    (iii) Licensor shall promptly notify Licensee in writing when Licensor becomes aware of any unauthorized access, use or other act respecting Personal Information.

10. Term and Termination

  1. This Agreement and the licence granted hereunder begins on the date the Licensee downloads, installs, or uses the Software, and continues until terminated (the “Term”).
  2. Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation.
  3. Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Licensor provides written notice thereof.
  4. Licensor may terminate this Agreement, effective immediately, if Licensee files an assignment in bankruptcy or has a bankruptcy order made against it under any bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, receiver-manager, monitor or custodian for all or a substantial part of its property.
  5. Licensor may terminate this Agreement, effective immediately, if Licensor is subject to an Intellectual Property infringement claim or injunction action by a third-party which Licensor determines, in its sole discretion, cannot be remediated.
  6. Upon termination of this Agreement, the licence granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 11(c)(ii).

11. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer

  1. Solely with respect to Software for which Licensor receives a Licence Fee, Licensor warrants that, for a period of the Term the Software will substantially contain the functionality described in the Documentation and, when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith. Licensor’s sole obligation under this warranty is to use reasonable efforts to correct or to replace any non-conforming component of the Software or, in Licensor’s sole discretion, to require return of the Software and refund to Licensee all amounts paid by Licensee hereunder with respect to the Software. The foregoing states the entire liability of Licensor and the exclusive remedy of Licensee with respect to breach of the warranty provided in this Section 11(a) The warranty in this Section 11(a) is made to and for the benefit of Licensee only and is non-transferable and non-assignable.
  2. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 11(a) does not apply to problems arising out of or relating to:
    (i) Software that is modified or damaged by Licensee or its Authorized Users;
    (ii) any operation or use of, or other activity relating to, the Software other than as specified in the Documentation, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Licensee’s use in the Documentation, unless otherwise expressly permitted by Licensor in writing;
    (iii) Licensee’s or any third party’s negligence, abuse, misapplication or misuse of the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Licensor in writing;
    (iv) Licensee’s failure to promptly install all Updates that Licensor has previously made available to Licensee;
    (v) the operation of, or access to, Licensee’s or a third party’s system or network;
    (vi) any open-source components, beta software, software that Licensor makes available for testing or demonstration purposes, temporary software modules or software for which Licensor does not receive a licence fee;
    (vii) Licensee’s material breach of any provision of this Agreement; or
    (viii) any other circumstances or causes outside of the reasonable control of Licensor (including abnormal physical or electrical stress).
  3. Disclaimer of Warranties. Except as provided in section 11(a), and subject to the exceptions provided in Section 11(b) the Software is provided “AS IS,” without warranty of any kind whatsoever. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, REGARDING THE SOFTWARE SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF LICENSOR WHATSOEVER.

12. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

  1. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR: (a) ANY: (i) USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE; (ii) LOST REVENUES OR PROFITS; (iii) DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL; (iv) LOSS OR CORRUPTION OF DATA; (v) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN; (vi) FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION; (vii) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (viii) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (ix) BREACHES IN SYSTEM SECURITY; OR (b) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, IN EACH CASE WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. LIMITATION OF LIABILITY. EXCEPT IN RESPECT OF LICENSOR’S INDEMNITY OBLIGATIONS UNDER SECTION 13, IN NO EVENT WILL LICENSOR’S AGGREGATE LIABILITY TO THE LICENSEE (INCLUDING LIABILITY TO PERSON OR PERSONS WHOSE CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY THE LICENSEE), WITH RESPECT TO ANY AND ALL CLAIMS (INCLUDING BREACH OF CONDITION OR FUNDAMENTAL TERM OR FUNDAMENTAL BREACH) AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SOFTWARE, OR USE OF OR INABILITY TO USE THE SOFTWARE IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF ANY DUTY) OR UNDER ANY OTHER LEGAL THEORY OTHERWISE EXCEED THE AMOUNT PAID BY LICENSEE TO LICENSOR, DIRECTLY OR INDIRECTLY, IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT CAUSING SUCH LIABILITY. TO EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, LICENSOR’S LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION SHALL BE LIMITED TO THE FURTHEST EXTENT PERMITTED BY LAW.
  3. THE LIMITATIONS SET FORTH IN SECTION 12(a) AND SECTION 12(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

13. Indemnity

  1. Indemnity. Each party shall indemnify and hold harmless the other party and that other party’s directors, officers, employees, contractors and agents, from any and all damages, losses, costs or liabilities (including reasonable legal fees and the cost of enforcing this Agreement) arising out of or resulting from any breach of this Agreement by such party or such party’s negligence or intentional misconduct.
  2. Licensor shall indemnify and hold the Licensee harmless from and against any claims, actions, or demands alleging that the Software, or any part thereof, infringes or misappropriates any patent, trademark, copyright, or trade secret right of any third party; provided that the Licensee promptly notifies Licensor of any such claim, allows Licensor to control the defense and provides reasonable information and assistance to Licensor (at Licensor’s expense) in the defense of the claim. The Licensee shall permit Licensor to replace or modify any affected Software or part thereof to avoid infringement, or to procure for the Licensee the right to continue to use and remarket such Software. If neither of such alternatives is reasonably possible, Licensor may require the Licensee to return the affected Software to Licensor and terminate any obligation to supply such Software to the Licensee or its Authorized Users under this Agreement, and Licensor’s sole liability in regard to such return shall be to refund an amount, the maximum of which is the license fees paid to Licensor for Software which were not delivered as a result of such infringement, on the invoice immediately preceding such claim. Licensor shall have no obligation with respect to claims, actions, or demands to the extent that they are based upon (i) the combination of the Software with any items not supplied by Licensor, including those supplied by the Licensee, (ii) any failure by the Licensee to implement modifications or replacements distributed by Licensor to address any alleged infringement, (iii) any Intellectual Property Right in which the Licensee or any affiliate of the Licensee has a proprietary interest or (iv) any infringement caused by the Licensee or its Authorized User. This Section states the entire liability of Licensor with respect to indemnification or liability for infringement of patents, copyrights or other proprietary rights by the Licensor Product or any part thereof or by its use or operation.

14. Export Regulation

The Software and Documentation may be subject to Canadian export control laws. The Licensee shall not, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Licensee shall comply with all applicable federal laws, regulations and rules and complete all required undertakings (including obtaining any necessary export licence or other governmental approval), before exporting, re-exporting, releasing or otherwise making the Software or Documentation available outside Canada.

15. Miscellaneous

  1. This Agreement is governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein. Any legal suit, action or proceeding arising out of or related to this Agreement or the licences granted hereunder shall be instituted exclusively in the courts of the province of British Columbia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding, unless otherwise agreed in writing by each party. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
  2. Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labour disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, tsunami, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Licensor’s reasonable control.
  3. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to Licensor at the address set out on their website at https://turnium.com.
  4. Except as expressly stated or as expressly amended in a signed agreement, this EULA, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
  5. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any amalgamation, arrangement or reorganization involving Licensee will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 14(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance under this Agreement without Licensee’s consent. This Agreement is binding upon and enures to the benefit of the parties hereto and their respective permitted successors and assigns.
  6. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
  7. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  8. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  9. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (ii) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. All Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. Unless otherwise stated, all dollar amounts referred to in this Agreement are stated in Canadian dollars.
  10. The parties confirm that it is their express wish that this Agreement, as well as any other documents related to this Agreement, including notices, schedules and authorizations, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté expresse que cette convention, de même que tous les documents s’y rattachant, y compris tous avis, annexes et autorisations s’y rattachant, soient rédigés en langue anglaise seulement.
  11. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

ANNEX 1

AUTHORIZED USER TERMS OF USEa

These Software Terms of Use (“Terms of Use”) govern your use of the Turnium software (the “Software”), including all user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic or other form, that describe the Software or its use or specifications (the “Documentation”) provided to you (“you” or “your”) for use pursuant to and subject to a end user licence agreement (the “Software Licence Agreement”) between Turnium Technology Group, Inc. (“Licensor”) and your employer or other person or entity who owns or otherwise lawfully controls the computer on which the Software is installed (“Licensee”).

BY USING THE SOFTWARE YOU: (i) REPRESENT THAT YOU ARE DULY AUTHORIZED BY LICENSEE TO ACCESS AND USE THE SOFTWARE; AND (ii) ACCEPT THESE AUTHORIZED USER TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT USE THE SOFTWARE AND YOU WILL HAVE NO LICENCE TO, AND MUST NOT ACCESS OR USE, THE SOFTWARE.

1. Licence Grant

Subject to your strict compliance with these Terms of Use, Licensor hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited licence to use the Software solely in accordance with the Documentation, as installed on the equipment provided by Licensee and for Licensee’s internal business purposes. The foregoing licence will terminate immediately on the earlier to occur of:

  1. the expiration or earlier termination of the Software Licence Agreement between Licensor and Licensee; or
  2. your ceasing to be authorized by Licensor to use the Software for any or no reason.

2. Use Restrictions

You shall not, directly or indirectly:

  1. use the Software or Documentation except as set forth in Section 1;
  2. copy the Software or Documentation, in whole or in part;
  3. modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof;
  4. combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
  5. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
  6. remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices included on or in the Software or Documentation, including any copy thereof;
  7. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise provide any access to or use of the Software or any features or functionality of the Software, for any reason, to any other person or entity, including any subcontractor, independent contractor, affiliate or service provider of Licensee, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
  8. use the Software or Documentation in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including:
    (i) power generation systems;
    (ii) aircraft navigation or communications systems, air traffic control systems or any other transport management systems;
    (iii) safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and
    (iv) military or aerospace applications, weapons systems or environments;
  9. use the Software or Documentation in violation of any law, regulation or rule; or
  10. use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor’s commercial disadvantage.

3. Compliance Measures

The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against use of the Software:

  1. beyond the scope of the licence granted to under Section 1;
  2. prohibited under Section 2.

You shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.

4. Collection and Use of Information

The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against use of the Software:

  1. Licensor may, directly or indirectly through the services of others, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, by means of (i) providing maintenance and support services and (ii) security measures included in the Software.
  2. You agree that the Licensor may use such information for any purpose related to any use of the Software by you, including but not limited to: (i) improving the performance of the Software or developing updates; and (ii) verifying compliance with the terms of this Agreement and enforcing Licensor’s rights, including all intellectual property rights in and to the Software.

5. Intellectual Property Rights

You acknowledge that the Software is provided under licence, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights to the Software other than to use the Software in accordance with the licence granted under this Agreement, subject to all terms, conditions and restrictions. Licensor and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, subject to the licence expressly granted to the Licensee in this Agreement. You shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.

6. Disclaimer of Liability

IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE. YOU ARE PROVIDED THE SOFTWARE UNDER THE SOFTWARE LICENCE AGREEMENT BETWEEN LICENSOR AND LICENSEE, SOLELY FOR THE BENEFIT OF LICENSEE AND AT LICENSEE’S DISCRETION. YOU ACKNOWLEDGE THAT YOU HAVE NO RIGHTS UNDER THAT AGREEMENT INCLUDING ANY RIGHTS TO ENFORCE ANY OF ITS TERMS. ANY OBLIGATION OR LIABILITY LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR LICENSORS OR SERVICE PROVIDERS, MAY HAVE WITH RESPECT TO YOUR USE OR INABILITY TO USE THE SOFTWARE SHALL BE SOLELY TO LICENSEE UNDER THAT AGREEMENT AND SUBJECT TO ALL LIMITATIONS OF LIABILITY SET FORTH THEREIN.

7. Export Regulation

The Software may be subject to Canadian export control laws. You shall not, directly or indirectly, export, re-export or release the Software to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export licence or other governmental approval), before exporting, re-exporting, releasing or otherwise making the Software available outside Canada.

8. Governing Law

These Terms of Use are governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein.