Software License Agreement
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Thank you for choosing Genetec products. This document (the “Agreement”) constitutes a binding legal agreement between Genetec Inc. (“Genetec”) and “Licensee” and defines the terms and conditions under which Genetec allows Licensee to download, install and use any Genetec Software (as defined below). Please read it carefully as it contains important information such as warranty disclaimers and limitations of liability.
This Agreement applies to Licensee from the moment that Software is installed or used for the first time by Licensee or the terms of this Agreement are accepted either by a representative of Licensee or by a representative of a third party service provider retained by Licensee to install Software for Licensee. Licensee’s (including its users') use of Software will mean that Licensee has agreed to be bound by the terms and conditions set out below.
Scope and Definitions
a. Scope. This Agreement applies to access and use of all Software by Licensee (including its Affiliates and their respective authorized users). If any additional terms apply to any given Software, they will be provided to Licensee in the form of a Software Appendix at the time of procurement of the license to such Software.
b. Definitions. For the purpose of this Agreement, the term (i) “Affiliate” means, in reference to a Party hereto, any entity that, either directly or through one or more intermediary entities, controls, is controlled by, or is under common control with that Party, where ‘control’ refers to the ownership of more than fifty percent (50%) of the voting equity of such entity or to the right to appoint the majority directors to the board of directors of such entity; (ii) “Documentation” means user manuals and any other documentation pertaining to Software or Genetec Advantage (as defined in section 2.a below) as made available by Genetec in relation to such Software; (iii) “Malicious Code” means any software, electronic, mechanical or other means, device or function (such as, a backdoor, trapdoor, virus, malware, spyware or trojan horse) designed to allow Genetec or a third party to spy or gain unauthorized access to Licensee Data or Licensee systems; provided that ‘Malicious Code’ excludes any function of Software intended to enforce license-specific limitations (such as for trial or subscription-based Software licenses) and other similar self-help mechanisms; (iv) “Party” means either Genetec or Licensee, and “Parties” means both Genetec and Licensee; (v) “Software” means any software application conceived, developed or licensed by Genetec, in whatever form, and that is licensed to Licensee under this Agreement, including all updates, upgrades and other modifications thereto that Genetec may make available to Licensee from time to time.
License Terms and Restrictions
a. Grant of License. Subject to the payment of the relevant licensing fees and Licensee’s compliance with the terms and conditions of this Agreement, Genetec hereby grants to Licensee a non-exclusive, non-transferable, non-sub-licensable enterprise-wide license to download, install and use Software in accordance with the applicable Documentation in the form made available by Genetec, up to the maximum number of installations, in the territory and during the term specified in the relevant purchase order. This license allows Licensee to grant access and permit use of Software to its Affiliates and to its and their respective employees, agents, representatives and other persons acting on Licensee’s behalf (“Permitted Users”), provided that Licensee will at all times remain responsible for its Affiliates’ and the Permitted Users’ access and use of Software in compliance with the terms of this Agreement. Licensee may make a reasonable number of copies of Software and the relevant Documentation as may be necessary for Licensee’s standard archival, disaster recovery, internal testing and regulatory compliance purposes. This license also includes all Software updates (including bug fixes and patches)that Genetec may make available to Licensee, as well as any Software upgrades (including new releases, new features and other substantial Software improvements) which Licensee is eligible to receive either as part of Licensee’s subscription to Genetec advanced support and maintenance offering known as Genetec Advantage (or its future replacement; herein referred to as “Genetec Advantage”) or otherwise.
b. Trial Licenses. In certain cases, Genetec may offer trial licenses to allow Licensee to evaluate Software. Certain Software features may be either limited or unavailable as part of trial licenses. The duration of trials may vary from one Software to another. The trial license will end upon the expiration of the trial period, unless Licensee will have procured a full license to such Software before then. The trial license may terminate sooner in accordance with this Agreement.
c. License Restrictions. Licensee warrants that it will not (and will not encourage, assist or permit any other person to): (i) translate, decompile, reverse engineer, modify or otherwise tamper with, or attempt to derive the source code or any other proprietary technology of, Software, in whole or in part; (ii) access or use Software to develop competing products or technology, or otherwise create derivative works of Software or parts thereof; (iii) remove, alter or obscure any proprietary notices that appear in Software; (iv) copy, reproduce, distribute, rent, loan, sell, transfer, grant any license, sub-license or otherwise make available Software to third parties except as expressly permitted in this Agreement, (v) use Software in combination with any system or application where such use or failure of such system or application can reasonably be expected to threaten or result in personal injury, death or catastrophic loss; and/or (vi) access or use Software for any unlawful activity or in any manner that violates the applicable law or the rights of any person (such as any rights to privacy or intellectual property). Licensee further warrants that it will use Software in an ethical and responsible manner, in compliance with the Universal Declaration of Human Rights of the United Nations and other applicable legislation combatting modern slavery practices or other violations of human rights, including those pertaining to discrimination and harassment.
d. License Control. Software may contain standard license control mechanisms to ensure that it is functional only during the period covered by the license key that Software is paired with. As such, if Licensee procures Software on a temporary or subscription basis, Licensee shall keep the license key information in Software up to date to ensure that Software functions without interruption. Depending on Software, the above may be achieved by enabling the automated license control option in Software or by manually pairing the most up to date license key with Software. Genetec will not be responsible for any interruption in Software if Licensee fails to pair the most up to date license key with Software in a timely manner.
e. Support. Unless expressly agreed to otherwise in writing, all Software support will be provided to Licensee by the third party authorized reseller from which Licensee has procured such Software and may be subject to additional terms defined by the authorized reseller. If Licensee procures a subscription to Genetec Advantage in relation to Software, Genetec will assist its authorized reseller in its provision of support to Licensee with respect to Software and will use commercially reasonable efforts to resolve all issues experienced by Licensee within the scope of the Genetec Advantage plan procured by Licensee as described in the applicable Documentation during the term of Licensee’s subscription to Genetec Advantage.
f. Malicious Code Control. Genetec will not intentionally introduce any Malicious Code and will use commercially reasonable efforts to ensure that no Malicious Code is introduced into Software. If Genetec becomes aware of any Malicious Code within Software, Genetec will promptly notify Licensee of such event and will provide reasonable assistance to Licensee to prevent or mitigate the impact of such Malicious Code.
Confidentiality and Licensee Data
a. Confidential Information. In relation to your use of our Software, either Party may disclose certain Confidential Information to the other Party. For the purpose of this section, “Confidential Information” means any non- public information that is either marked or otherwise identified as proprietary or confidential, or otherwise, due to its nature or under the circumstances surrounding its disclosure ought to be treated as proprietary and confidential by a reasonable person receiving such information; provided that “Confidential Information” excludes (a) information which is or becomes known to the public without breach of this Agreement; (b) information developed independently by the “Receiving Party” without use of Confidential Information of the “Disclosing Party”, as the Receiving Party may reasonably demonstrate; and (c) information which is rightfully received by the Receiving Party from a third party without restriction on disclosure and without breach of the Agreement. All Confidential Information disclosed under this Agreement shall (i) remain the property of the Disclosing Party; (ii) only be used by the Receiving Party to the extent required to fulfil its obligations under this Agreement; (iii)be protected by the Receiving Party from unauthorized use and disclosure through appropriate technical, operational and other safeguards that the recipient uses to protect its own Confidential Information of similar nature, and in any case using, at the minimum, a reasonable degree of care; and (iv) be returned or destroyed upon request of the Disclosing Party and in all cases upon the termination of this Agreement. The foregoing shall not, however, prevent a Party from preserving such records as may be required to ensure its compliance with the applicable law, provided that such Party shall remain bound by these confidentiality obligations for as long as it retains a copy of the other Party’s Confidential Information. The Parties agree to hold each other's Confidential Information in confidence during the term of this Agreement and for five (5) years after its termination, save for any information that constitutes a trade secret, which, to the extent permitted under the applicable law, will remain confidential until it ceases to qualify as a trade secret under the applicable law.
Intellectual Property Rights
a. Ownership of Rights. Software is protected by law, including all associated intellectual property rights in Canada, the United States, and other countries. Genetec (together with our Affiliates, licensors and partners, as applicable), remains the sole owner of all rights (including intellectual property rights), title and interest in and to Software (including all improvements, translations and other modifications and derivative works), as well as any goodwill associated with it. Regardless of any use of the words ‘purchase’, ‘sale’ or the like in this Agreement, any websites, documentation or purchase orders, Software is licensed, not sold, and no title or ownership of any rights in or to Software is being transferred or assigned under this Agreement.
b. Acknowledgements. Certain Software includes certain software programs or code developed and/or licensed to Genetec by third parties, under the licensing terms of which Genetec undertook to acknowledge their respective developers’ or owners’ intellectual property rights in these components. The list of third party components included in Software is available at www.genetec.com/legal/tpslist and may be updated from time to time by Genetec, as it makes available modifications to Software.
c. Third-Party Products. Certain Software may allow Licensee to connect (through an integration or otherwise), access and use certain plugins and other third-party products or services (each a “Third-Party Product”) in association with Software. Licensee acknowledges and agrees that any such connection or accesses to any Third-Party Product in association with Software is made available to Licensee for convenience only. Genetec does not endorse any such Third-Party Product, and Genetec makes no representations and provides no warranties whatsoever with respect to any such Third-Party Product. Third Party Products are not part of Software, and are provided under such terms and conditions under which their respective manufacturers or owners make them available to Licensee, and Licensee alone is responsible for ensuring that Licensee procures all appropriate rights to access and use any such Third Party Products and complies with the terms and conditions applicable to their use.
Remedies. Licensee acknowledges that Software contains valuable Confidential Information of Genetec, which may include trade secrets, and its unauthorized disclosure or use may cause significant and irreparable harm to Genetec. As such, Licensee agrees that, in addition to all other remedies available at law or equity, Genetec shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for Licensee’s breach of this Agreement. Furthermore, if Genetec has reasonable grounds to believe that Licensee uses Software in violation of the terms of this Agreement, subject to a reasonable prior written notice to Licensee, Genetec shall have the right to designate, at Genetec’s own expense, an independent third party auditor, reasonably acceptable to Licensee, to assess Licensee’s compliance with the terms of this Agreement, provided that any such audit must be conducted without undue interruption of Licensee’s operations, during regular business hours, and be subject to Licensee’s standard security and confidentiality procedures applicable to its premises.
Term and Termination
a. Term. This Agreement will become effective as of the earlier of the date of first installation or use of Software or Licensee’s acceptance of these terms (whether in writing, through click-wrap or other supported means), and will remain in force and effect between Licensee and Genetec for the duration of the Software license (including its renewals, as the case may be), unless terminated earlier in accordance with its terms.
b. Termination for Cause. Without restricting any of Genetec’s other rights and remedies, Genetec may terminate this Agreement (and the license granted herein)if Licensee breaches any of its material obligations under this Agreement (including, without limitation those set out in sections 2.a, 2.c, 4.a, 6.d, 7.a or 7.f) and fails to remedy its breach within fifteen (15) calendar days from Licensee’s receipt of a written notice from Genetec advising Licensee of such breach, provided that if any such breach is not capable of remedy, then the Agreement shall terminate immediately upon Genetec’s delivery of such written notice to Licensee. Licensee understand that by doing so, Genetec will not be liable for any inconvenience, loss or damage whatsoever.
c. Effect of Termination. Immediately upon the termination of this Agreement for any reason, all licenses granted under this Agreement will automatically terminate and Licensee shall (i) immediately cease (and cause its users to cease) using Software; (ii) uninstall all instances of Software from devices; and (ii) destroy all copies of the Software and the accompanying Genetec Documentation. However, Licensee may keep a reasonable number of copies of Software and the relevant Documentation as may be necessary for Licensee’s standard archival, disaster recovery, internal testing and regulatory compliance purposes as permitted under section 2.a above. The termination of this Agreement will not impact the Parties’ respective rights and liabilities accrued during the its term of this Agreement.
d. Survival. Regardless of any termination, the sections which by their nature shall survive the termination of this Agreement will survive its termination, including without limitation sections 2.d, 3, 5.c, 5.d, 4.a, 4.d, 5 and 7.
Warranties, Indemnities and Limitations of Liability
a. Software Warranty. Genetec warrants that, for a period of one (1) year from the date of delivery of Software to Licensee (or such other period covered by Licensee’s subscription to Genetec Advantage, as applicable), Software will perform in all material respects in accordance with the accompanying Documentation under normal use in infrastructure on which Software was first installed. Genetec does not cover, and hereby disclaims, all warranty claims arising out of or relating to: (i) use of Software with hardware or software other that those required in the Documentation; (ii) modifications to Software made by anyone other than by Genetec; or (iii) defects in Software due to improper use. Genetec does not warrant that the functions contained in Software will meet Licensee’s requirements, or that Software will be error free or operate without interruptions. If Software does not comply with the warranty above, then, to the maximum extent permitted by law, Genetec shall, at its sole option, and as Licensee’s sole remedy under this warranty, either: (i)repair or replace the parts of Software that do not comply with the warranty above; or (ii) refund the price paid for the Software license that does not comply with this warranty.
b. Disclaimer of Other Warranties. Except for the warranties described in section 6.a above, to the maximum extent permitted by law, Genetec makes no representations and provides no warranties with regards to Software, including without limitation with regards to its performance, availability, coverage, uninterrupted availability, security, operation, or those of any software, hardware, services, connections, networks or Third Party Services used or provided in association with Software. Except as expressly stated above, Software and all Documentation are provided “as is” and “as available”, without any representations or warranties whatsoever, including, without limitation, warranties of title, non-infringement, merchantability, quality, availability or fitness for a particular purpose.
c. Indemnification by Genetec. Genetec agrees to defend Licensee against, or settle, any demands, claims, causes of action, suits and proceedings (“Claims”) against Licensee brought by a third party alleging that Software, to the extent used in accordance with Documentation, infringes or misappropriates such third party’s intellectual property rights in the territory and during the term specified in the relevant purchase order for such Software, and Genetec agrees to indemnify and hold harmless Licensee from any damages, legal costs and reasonable expenses finally awarded against Licensee, or the amounts payable by Licensee under a settlement, as a result of such Claim against Licensee; provided that Licensee promptly gives Genetec a written notice of such Claim, gives Genetec sole control of the defense, and provides Genetec with reasonable and timely assistance at Genetec’s expense. Upon becoming aware of any such Claim, Genetec may, at its option and expense, either: (i) obtain for Licensee the right to continue to use Software; (ii) replace or modify Software so it becomes non infringing; or (iii) if Genetec determines that the resolutions described in items (i) and (ii) are not commercially practicable, then terminate this Agreement and the licenses granted hereunder with prior written notice to Licensee and refund to Licensee the price paid for its Software license; provided that if the Software license was procured on a subscription basis, then Genetec shall solely refund to Licensee any prepaid but not used subscription fees. This section sets out Genetec’s entire liability and Licensee’s sole remedy with respect to any Claims concerning infringement or misappropriation of third-party intellectual property rights.
d. Indemnification by Licensee. Licensee agrees to defend Genetec against, or settle, any Claims against Genetec brought by a third party and that arises from (i) Licensee’s breach of section 2.c and/or 7.a of this Agreement; and Licensee agrees to indemnify and hold harmless Genetec from any damages, legal costs and reasonable expenses finally awarded against Genetec, or the amounts payable by Genetec under a settlement, as a result of such Claim against Genetec, provided that Genetec promptly gives Licensee a written notice of such Claim, gives Licensee sole control of the defense, and provides Licensee with reasonable and timely assistance at Licensee’s expense.
e. Limitation of Liability. To the maximum extent permitted by law, Genetec will not be liable for any damages or other liabilities incurred by Licensee (or any of its users) to the extent arising from use of Software: (i) in violation of any provision of this Agreement; (ii) in a manner not covered in the Documentation or misaligned with Genetec’s instructions or the primary purpose of such Software; (iii) in combination with any product, software, service, equipment or infrastructure not designated by Genetec in the applicable Documentation or in the list available at www.genetec.com/sdl as being compatible with Software; (iv)following any alteration or repair of Software made by anyone other than Genetec, unless done with Genetec’s prior written approval and in full compliance with Genetec’s written directives; (v) during any period not covered by a duly obtained and paid-for license; and/or (vi) in any abnormal working conditions, such as, in high temperatures, high pressure, and the like. In no event shall Genetec be liable to Licensee for any special, exemplary, indirect, incidental, consequential or punitive damages, regardless of the theory of action, even if Genetec has been advised of the possibility of such damages, including, without limitation, lost profits, lost business revenue, lost goodwill, business interruption, other economic loss or any loss of recorded data. Except for Genetec’s indemnity obligations hereunder, in no event Genetec’s total aggregate liability under this Agreement and in association with Software licensed hereunder shall exceed the amount paid by Licensee for the relevant Software license.
a. Compliance with Laws. Licensee understand and agree that Licensee’s access and use of Software must be in compliance with all applicable laws, rules and regulations, including, without limitation, those pertaining to privacy, intellectual property, export controls and trade sanctions. Licensee is responsible for determining if and how Licensee needs to comply with the applicable laws and if Licensee needs to obtain any permits before Licensee installs, accesses and uses Software.
b. Contact Information. To contact Genetec for matters related to this Agreement, Licensee shall write to Genetec, 2280 Alfred-Nobel Blvd., Montreal, QC, H4S2A4, Canada, c/o Legal Department, or to [email protected]. If Genetec needs to contact Licensee for matters related to this Agreement, Genetec will use the contact information that Licensee or its authorized reseller will have provided to Genetec as part of Licensee’s procurement of its license to Software. Licensee shall promptly advise Genetec of any changes to its contact information. All notices will be deemed delivered on the date shown on the postal receipt or on the confirmation of delivery for courier, facsimile or electronic mail.
c. Force Majeure. Licensee hereby acknowledge that circumstances outside of Genetec’s reasonable control (such as, without limitation, internet or power outages, fires, floods, sabotage, large scale outbreaks of computer virus, malware or other malicious code, strikes, riots, wars or the like) may cause delays in its ability to perform services related to our Software. As such, Genetec shall have no liability whatsoever to Licensee for any damages whatsoever resulting from such delays or any incapacity to perform such services in a timely manner.
d. Waiver. Failure by a Party to fully enforce its rights under this Agreement shall not prevent that Party from exercising such right at any time thereafter; nor shall any failure or delay by a Party to enforce any right or privilege under this Agreement be interpreted as a waiver of such right or privilege by that Party.
e. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, unenforceable or otherwise contrary to law, such provision shall be changed and interpreted to best accomplish the objectives of the original provision to the fullest extent permitted by law. Nonetheless, such provision shall continue to apply in full force and effect in all other jurisdictions, as the case may be. Moreover, the remaining provisions of this Agreement shall remain in full force and effect.
f. Assignment. Neither Party may assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any person or entity (including any licenses granted herein), in whole or in part, without the other Party's prior written consent. Notwithstanding the above, Licensee may assign Licensee’s Software license to an Affiliate, upon at least a thirty (30) days’ prior written notice to Genetec, as part of a merger, corporate reorganization, or the sale or transfer of all or substantially all of Licensee’s assets to such Affiliate, provided that (i) such assignment occurs solely as part of Licensee’s assignment and physical transfer of the hardware on which such Software was originally licensed for, installed and used by Licensee prior to such assignment; (ii) such assignment will not result in the Licensee’s Software license key being used by the assignee Affiliate on any different hardware, which would normally require the assignee Affiliate to procure (and pay for) a separate Software license; and (iii) Genetec may, at its sole discretion, require the assignee Affiliate to enter into a separate license agreement with Genetec (on terms substantially similar to those in this Agreement) for the license of Software. In all cases, the assignee Affiliate will be responsible for procuring additional Software licenses and any ancillary services from an authorized reseller of such Affiliates’ choosing.
g. Applicable Law and Forum. For the purpose of this section, if the country of incorporation of the Licensee is (i) Canada, then the term “Governing Laws” shall mean "the laws of the Province of Ontario, Canada", and the term "Forum" shall mean "Ottawa, ON, Canada"; (ii) the United States of America or any country in Latin America or the Caribbean, then the term "Governing Laws" shall mean "the laws of the Commonwealth of Massachusetts, USA", and the term "Forum" shall mean "Boston, MA, USA"; or (iii) any other country, then the term "Governing Laws" shall mean "the laws of England and Wales, UK", and the term "Forum" shall mean "London, UK". The Parties hereby agree that the Governing Laws, except for any conflict of laws principles, will apply to interpret this Agreement, as well as to resolve any disputes related to them or any Software provided hereunder. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Each party hereby irrevocably and unconditionally waives the right to a trial by jury. All such disputes must be brought exclusively before the courts based in the Forum. However, the foregoing does not prohibit either Party from seeking injunctive or other equitable relief in any other jurisdiction in case of any violation, breach or infringement of its rights related to intellectual property or confidentiality in such jurisdiction.
h. U.S. Government Users. If Licensee is an entity of the U.S. Government, or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), the Defense Federal Acquisition Regulations (DFARS) or similar regulatory regimes, Licensee acknowledges that Software and any Documentation are “commercial items” in accordance with the applicable regulations.
i. Entire Agreement. This Agreement constitutes the entire understanding between the Parties with regards to the subject matter hereof and supersedes any other prior and contemporaneous communications and agreements.
This Agreement has been last updated on November 5, 2020. The latest version of this Agreement may be found at www.genetec.com/legal/license. We invite you to subscribe to the legal notifications in our Email Subscription Center to, among other things, be notified of any major changes to this document.