NOTICE TO USER: THIS LICENSE AGREEMENT GOVERNS INSTALLATION AND USE OF THE EMBOTICS SOFTWARE DESCRIBED HEREIN. CUSTOMER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER. BY CLICKING TO ACKNOWLEDGE AGREEMENT TO BE BOUND TO THIS LICENSE, OR DOWNLOADING, COPYING, INSTALLING OR USING THE SOFTWARE, CUSTOMER ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT INSTALLS OR USES THE SOFTWARE AND ANY PERSON OR ENTITY (E.G., SYSTEM INTEGRATOR, CONSULTANT OR CONTRACTOR) THAT INSTALLS OR USES THE SOFTWARE ON ANOTHER PERSON’S OR ENTITY’S BEHALF. YOU MAY HAVE ANOTHER WRITTEN AGREEMENT WITH EMBOTICS THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.

  1. Definitions
  2. Scope of License
  3. Documentation
  4. Outsourcing
  5. Restrictions
  6. Ownership
  7. Open Source Programs
  8. Verifications
  9. Indemnification
  10. Warranties
  11. Limitations of Liability
  12. Term and Termination
  13. Miscellaneous
 

1. Definitions


“Authorized Users” means employees and individual contractors (i.e., temporary employees) of Customer.

“Computer” means a hardware device (including a Server) containing one or more CPU Sockets that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.

“CPU Socket” means an integrated circuit within one or more central processing units in a Computer.

“Customer” means any individual or entity that uses, downloads, copies, installs or otherwise makes use of the Software.

“Documentation” means the user manuals and/or technical publications as applicable, supplied in connection with validly licensed Software relating to the installation, use and administration of the Software.

“Internal Network” means Customer’s private, proprietary network resource accessible only by Authorized Users.

“Internal Network” specifically excludes the Internet or any other network community open to the public, including membership or subscription driven groups, associations or similar organizations. Connection by secure links such as VPN or dial up to Customer’s Internal Network for the purpose of allowing Authorized Users to use the Software is deemed use over an Internal Network.

“License Metric(s)” means each of the per-unit metrics specified by Embotics in connection with the licensed quantities described herein or identified in a separate writing (i.e. a purchase order) to describe the scope of Customer’s right to use the Software. The License Metrics are incorporated by reference into this Agreement. One or more of the following License Metrics (or another License Metric as provided in a separate writing) applies to each software application as further provided herein: (a) Per-CPU socket (the total number of CPU Sockets on the Computers that are being managed by or with the Software for Customer’s Private Cloud); or (b) Per-Virtual Machine (the total number of Virtual Machines which the Software is managing for the Customer in the Public Cloud).

“Server” means a Computer designed or configured for access by multiple users through a network.

“Private Cloud” means cloud infrastructure operated solely for the Customer, whether hosted internally or externally on or off premises.

“Public Cloud” means cloud infrastructure where: (i) the host Servers are made available to the general public or a large industry group; (ii) the host Servers are owned by a third party organization selling cloud services; and (iii) the Customer has access to Virtual Machines but does not have access to the host Servers.

“Software” means (a) the object code version of the validly licensed Embotics vCommander™ software package accompanying this document, including all related Documentation and other materials provided by Embotics, and modified versions, copies of, and upgrades, updates and additions to such vCommander software and materials provided by Embotics at any time.

“Virtual Machine” means a technical environment that contains the components necessary to operate multiple instances of software installed on a single Computer as if any instance of such software was separately installed on a separate Computer.


2. Scope of License


Subject to the terms and conditions of this Agreement, Embotics grants to Customer a non-exclusive, non-transferable right and license to permit Authorized Users to install and use the Software delivered hereunder according to the terms and conditions of this Agreement within Customer’s Internal Network in the manner and for the purposes described in the Documentation based on the License Metrics specified in a separate written document, and as further set forth below. For purposes of this License Metric for a Customer’s Private Cloud, all CPU Sockets on a Computer which the Software is managing shall be deemed to use the Software. In the event that Customer desires to license the Software for use on Virtual Machines for the Public Cloud, then the number of licenses required shall be the total number of Virtual Machines which the Software is managing. Customer may make one additional copy of the Software for backup or archival purposes provided that the License Metrics are not exceeded. If Customer would like to change the level of License Metrics, Customer will need to pay the applicable fees to Embotics.


3. Documentation


Customer may make and distribute copies of the Documentation for use by Authorized Users in connection with use of the Software in accordance with this Agreement, but no more than the amount reasonably necessary. Any permitted copy of the Documentation that Customer makes must contain the same copyright and other proprietary notices that appear on or in the Documentation.


4. Outsourcing


Customer may sub-license use of the Software to a third party facilities management contractor to operate the Software on Customer’s behalf, provided that: (a) Customer provides Embotics with prior written notice; (b) Customer is responsible for ensuring that any such contractor agrees to abide by and fully complies with the terms of this Agreement as they relate to the use of the Software on the same basis as applies to Customer; (c) such use is only in relation to Customer’s direct beneficial business purposes as restricted herein; (d) such use does not represent or constitute an increase in the scope or number of licenses provided hereunder; and (e) Customer shall remain fully liable for any and all acts or omissions by the contractor related to this Agreement.


5. Restrictions


a. Reverse Engineering. Customer shall not modify, port, adapt or translate the Software. Customer shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of Customer’s jurisdiction give Customer the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that Customer must first request such information from Embotics and Embotics may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the source code to ensure that Embotics’ and its suppliers’ proprietary rights in the source code for the Software are protected.

b. No Unbundling. The Software may include various applications, utilities and components, may support multiple platforms and languages or may be provided to Customer on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to Customer as a single product to be used as a single product on Computers and platforms as permitted herein. Customer is not required to use all component parts of the Software, but Customer shall not unbundle the component parts of the Software for use on different Computers except as otherwise permitted under this Agreement. Customer shall not unbundle or repackage the Software for distribution, transfer or other disposition.

c. No Transfer. Customer shall not sublicense, assign or transfer the Software or Customer’s rights in the Software, or authorize any portion of the Software to be copied onto or accessed from another individual’s or entity’s Computer except as may be explicitly provided in this Agreement. Notwithstanding anything to the contrary in this Section 5.c, Customer may transfer copies of the Software installed on one of Customer’s Computers to another one of Customer’s Computers provided that the resulting installation and use of the Software is in accordance with the terms of this Agreement and does not cause Customer to exceed Customer’s right to use the Software under this Agreement.

d. Export Rules. Customer agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software is identified as an export controlled item under the Export Laws, Customer represents and warrants that Customer is not a citizen of, or located within, an embargoed or otherwise restricted nation (including Iran, Syria, Sudan, Cuba and North Korea) and that Customer is not otherwise prohibited under the Export Laws from receiving the Software. All rights to install and use the Software are granted on condition that such rights are forfeited if Customer fails to comply with the terms of this Agreement.

e. Compliance. In the event that Customer fails to comply with this Agreement, Embotics may terminate the license and Customer must destroy all copies of the Software (with all other rights of both parties and all other provisions of this Agreement surviving any such termination).


6. Ownership


Embotics and its licensors retain all right, title and interest in and to the Software and any modifications and enhancements to the Software and all Upgrades, including all intellectual property rights that are not expressly granted in this Agreement.


7. Open Source Programs


The Software may be distributed with open source software programs as described in the licenses directory of the Software. These open source programs are distributed under and are subject to the terms of their respective open source licenses and not this Agreement.


8. Verification


Customer will provide Embotics with applicable documentation concerning transactions related to the Software within thirty (30) days after written request. In addition, upon at least thirty (30) days prior written notice, Embotics or its designated agent may inspect and review Customer’s facilities and records in order to verify Customer’s compliance with this Agreement. If Customer is found not to be in compliance with the License Metrics, Customer will immediately pay all applicable fees to Embotics.


9. Indemnification


If a claim is brought against Customer during the time Customer has purchased a subscription for the Software claiming that Software licensed by Embotics to Customer under this Agreement infringes any U.S. or Canadian intellectual property right of any third party (“Claim”): (a) Embotics will defend the Claim; and (b) if Customer’s use of the Software hereunder is enjoined due to the type of claim specified in this section, then Embotics will, at its sole option and expense: (i) procure for Customer the right to continue using the Software under the terms of this Agreement; (ii) replace or modify the Software so that it is non-infringing; or (iii) replace the infringing components with non-infringing components; and (c) if the Software is found to infringe any valid US or Canadian intellectual property right of a third party and any damages are awarded as a result of such infringement, Embotics will pay such damages up to the amount paid under this Agreement during the twelve (12) month period preceding the date of the Claim. Embotics’ obligations under this Section 9 are contingent upon: (a) Customer giving prompt written notice to Embotics of any such claim; (b) Customer allowing Embotics to control the defense and any related settlement of any such claim; and (c) Customer furnishing Embotics with reasonable assistance in the defense of any such claim. Embotics will have no obligation to indemnify Customer with respect to any claims relating to Open Source Programs. The foregoing indemnity obligations will not apply to claims arising from: the combination of the Software with products or services not provided by Embotics; the modification of the Software pursuant to specifications of Client; the modification of the Software other than as directed by Embotics; or use of the Software in a manner not permitted or contemplated hereunder.


10. Warranties


a. Limited Warranty. Embotics warrants that when Software is used in an operating environment meeting the minimum specified requirements as set out in the documentation will substantially conform to its published specifications. If Software does not function as warranted during the warranty period, Embotics will provide a suitable fix or workaround or will replace the Software. The warranty period for Software shall be thirty (30) days from ship date. In the event Embotics determines that repair or replacement as set forth in this Section 10.a cannot be made using commercially reasonable efforts, Embotics will give Customer a credit equal to Customer’s net book value for the Product calculated pursuant to generally-accepted accounting principles.

b. Disclaimer of Warranties. EMBOTICS PROVIDES THE SOFTWARE TO YOU “AS IS”. OTHER THAN THOSE EXPRESS WARRANTIES SPECIFICALLY PROVIDED HEREIN, EMBOTICS DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.


11. Limitations of Liability


Notwithstanding any other clause in this Agreement, in no event will Embotics be liable for any special, indirect, incidental, punitive or consequential damages (including, without limitation, any failure to realize savings or other benefits; any loss of use; or any claims made by or any payments made to any third person), any loss of revenue or profits, any loss and/or damage arising from or in connection with a virus, or any loss of data and/or damage arising there from or relating thereto, in each case arising from or in connection with this Agreement or the use or performance of any Software whether in an action based on contract, tort (INCLUDING NEGLIGENCE) or any other legal theory, whether or not Embotics has been notified of the possibility thereof. Notwithstanding any other clause in this Agreement, in no event will Embotics’s total aggregate liability for any damages arising from or in connection with this Agreement or the use or performance of any Software whether in actions based on contract, tort or any other legal theory, and whether or not Embotics has been notified of the possibility thereof, exceed the greater of five hundred dollars (US $500) or the amount paid under this Agreement during the twelve (12) month period preceding the date of the claim. The foregoing limitations, exclusions and disclaimers are an allocation of the risk between the parties and will apply to the maximum extent permitted by applicable law, even if any remedy fails in its essential purpose.


12. Terms and Termination


This Agreement is effective as of the date this Agreement is accepted by Customer and will continue until terminated by either party by giving written notice to the other. In the event of a termination of this Agreement, Customer must de-install all Software and cease all use of the Software. Sections 2, 5, 6, 7, 8, 9, 10, 11 and 13.d and 13.i will survive the termination of this Agreement. In addition, Customer will pay Embotics all monies that become due prior to the date of termination.


13 Miscellaneous


a. Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Customer to place orders or otherwise effect transactions hereunder. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter of this Agreement. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties.

b. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable provided, however, that if Sections 6 and 7 cannot be modified to be valid and enforceable, this Agreement will be deemed invalid in its entirety.

c. Force Majeure. Neither party will be liable or deemed to be in breach for any delay or failure in performance of this Agreement (except for the payment of money) or interruption of services resulting directly or indirectly from acts of God, civil or military authority, war, riots, civil disturbances, accidents, fire, earthquake, floods, strikes, lock-outs, labor disturbances, foreign or governmental order, or any other cause beyond the reasonable control of such party.

d. Governing Law and Venue. This Agreement will be governed by the laws of Ontario without regard for its choice of law provisions. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the courts of Ontario, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue. The United Nations Convention for the International Sale of Goods (and any legislation implementing such Convention) is expressly excluded and shall not apply to this Agreement.

e. Export Regulations. Customer will comply fully with all export control laws and regulations of the Canada, the United States and all other applicable jurisdictions (including its own country of residence and any country where the Software is used).

f. Assignment. Neither party may assign this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld, provided that no consent will be necessary if this Agreement is being assigned by a party to an acquirer of all or substantially all of the party’s assets (or the assets of the party’s applicable business unit), whether by merger, sale or exchange of stock, sale of assets or otherwise and in this case, the party may assign this Agreement by providing written notice to the other party.

g. Marketing. Embotics may use Customer’s name and company logo on its customer list and web site, and link to Customer’s web site.

h. Independent Contractor. The relationship of the parties is that of independent contractors. Neither party will be deemed to be the legal representative of the other nor will it have any right to bind the other party to any contract or commitment. This Agreement does not, and will not, be construed to create an employer-employee, agency, joint venture or partnership relationship between the parties. Each party agrees to assume complete responsibility for its own employees, including employers’ liability and tax withholding, worker’s compensation, social security, unemployment insurance requirements.

i. Notice. All notices and other communications herein permitted or required under this Agreement will be sent by postage prepaid, via registered or certified mail or overnight courier, return receipt requested, or delivered personally to the parties at their respective addresses, or to such other address as either party will give to the other party in the manner provided herein for giving notice. Notice will be considered given upon receipt.