This Agreement is a legal agreement between you (“Licensee”) and ISARA Corporation, an Ontario corporation (“ISARA”) stating the terms and conditions that govern your use of the Online Trial of the Licensed Programs. If you are entering into this Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the term “Licensee” shall refer to such entity. [By clicking “I Accept” or by using the Online Trial, you are agreeing to all of the terms and conditions stated herein. If you do not agree to these terms, do not click “I Accept” and do not use the Online Trial.]
A. ISARA is a developer, owner and distributor of various programs which enable licensees to add security functionality to their products;
B. ISARA is making the Licensed Programs generally available to the public, without restriction on eligibility, free of charge via Online Trial accessed directly by Licensee without installation or implementation support from ISARA;
C. ISARA is providing the Licensed Programs “as is” and “as available” and shall not provide any technical support or any other support services;
D. Licensee desires to use the Licenced Programs on a trial basis, without modification, adjustment or customization, solely on the terms and conditions set out herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, ISARA and Licensee agree as follows:
In this Agreement in addition to terms defined, the following terms have the following meanings elsewhere in this Agreement:
“Affiliate” means an affiliate as that term is defined in the Business Corporations Act (Ontario).
“Agreement” means this agreement, including any Schedules and Exhibits, as it may be confirmed, amended, modified, supplemented or restated by written agreement between the Parties.
“Applicable Law” means, at any time, with respect to any person, entity, Governmental Authority, property, transaction or event, all applicable laws, statutes, regulations, treaties, judgments and decrees and (whether or not having the force of law) all applicable official directives, rules, consents, approvals, by-laws, permits, authorizations, guidelines, orders and policies of any Governmental Authority having authority over that person, entity, Governmental Authority, property, transaction or event.
“Documentation” means any documentation and written information and instructions provided by ISARA for the Licensed Programs.
“Government Authority(ies)” means: (a) any federal, provincial, state, local, municipal, regional, territorial, aboriginal, or other government, governmental or public department, branch, ministry, or court, domestic or foreign, including any district, agency, commission, board, arbitration panel or authority and any subdivision of any of them exercising or entitled to exercise any administrative, executive, judicial, ministerial, prerogative, legislative, regulatory, or taxing authority or power of any nature; and (b) any quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of them, and any subdivision of any of them.
“Integrated Product” means any product, software or program which Licensee embeds or combines with the Licensed Programs.
“Intellectual Property” means all trade secrets, patents and patent applications, trade marks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, business names, internet domain names, e-mail address names, copyrights (including rights in computer software), moral rights, database rights, design rights, rights in Confidential Information (as defined below), rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Intellectual Property Rights” means: (a) any common law principle or statutory provision which may provide a right in Intellectual Property, including all: (i) common law rights and registrations, pending applications for registration and rights to file applications for the trade-marks, including all rights of priority; (ii) patents, pending patent applications and rights to file applications for the Inventions, including all rights of priority and rights in continuations, continuations-in-part, divisions, reissues, renewals, re-examinations, exclusions and other derivative applications and patents; (iii) copyrights in works and all registrations, pending applications for registration and rights to file applications for works and all moral rights and benefits of waivers of moral rights in works; (iv) registrations, pending applications for registration and rights to file applications for registration of domain names and all other common law and statutory rights in domain names; and (v) industrial design rights, design patents, design registrations, pending patent and design applications and rights to file applications for designs, including all rights of priority and rights in continuations, continuations-in-part, divisions, re-examinations, reissues and other derivative applications; (b) all rights in licences, sub-licences, franchise agreements, waivers and other contractual rights in any of the items listed in (a); and (c) all rights to enforce the rights and obtain remedies for a violation of any of the rights listed in (a) and (b).
“Licensed Programs” means (a) the programs and software specified in Schedule “A”, (b) library components of the foregoing in object code form, (c) all changes, enhancements or modifications to, or new developments with respect to, and all Updates and upgrades to the foregoing that may be provided to Licensee by ISARA in accordance with the terms and conditions herein, as applicable and any Intellectual Property Rights therein with respect to the foregoing, and (d) means any written product descriptions, user manuals, technical and product specifications and training materials related to the Licensed Programs which are provided by ISARA to Licensee through the Secure Portal.
“Loss” means any loss, liability, damage, cost, expense, charge, fine, penalty or assessment including the costs and expenses of any action, suit, proceedings, demand, assessment, Judgment, settlement or compromise and all interest, fines, penalties and reasonable professional fees and disbursements, including all costs associated with the enforcement of this Agreement.
“Online Trial” means the provision of the Licensed Programs that ISARA makes available through the Secure Portal, including any software (including ISARA programs), technology platform, and other Documentation and materials that ISARA makes available for Licensee’s access and use with the Online Trial.
“Party” and “Parties” means ISARA and/or Licensee, as the context dictates.
“Reverse Engineer” includes, without limitation, any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing (including any aspect of “dumping of RAM/ROM or persistent storage”, “cable or wireless link sniffing”, or “black box” reverse engineering) data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code), service, or hardware or any method or process of obtaining or converting any information, data or software from one form into a human-readable form.
“Secure Portal” means the Secure Download Portal of ISARA accessed via a link provided by ISARA.
“Territory” means worldwide.
2. TRIAL PEROD
2.1 This Agreement is effective upon Licensee’s acceptance of this Agreement and will continue in effect until terminated in accordance with this Agreement (the “Trial Period”). ISARA reserves the right to make changes or updates to the Licensed Products and Online Trial at any time without notice.
3. DELIVERY OF LICENSED PROGRAMS
3.1 Delivery: The terms of delivery for the Licensed Programs and Documentation shall be by download over the Secure Portal. To use the Online Trial, Licensee must access and submit a submission form through the Internet. Upon receiving a personalized link with passcode from ISARA, Licensee can use this link and passcode to access the Secure Portal to obtain the Online Trial. Access to and use of passcode protected areas of the Secure Portal is restricted to authorized users only. Licensee may not share its link or passcode or access to the Online Trial.
4.1 Support Services. The Online Trial is provided on a no-fee, trial basis to Licensee and Licensee agrees that ISARA is not obligated to provide any technical support, phone support, updates or upgrades for the Licensed Programs or any other ISARA program accessed or used within the Online Trial.
4.2 Updates. ISARA may from time to time, at its discretion, make available to Licensee revisions to the Licensed Programs (“Updates”). All Updates, if any, will be governed by the terms and conditions in this Agreement.
5. FEES AND TAXES
5.2 Taxes: Licensee shall be responsible for and shall pay any and all taxes, duties, fees, premiums, assessments, imposts, levies, rates, withholdings, government contributions and other charges of any kind, whether direct or indirect, together with any interest, penalties, fines, additions to or any other amounts imposed by any Governmental Authority and in relation to this Agreement, if any.
6. GRANTS AND RESTRICTIONS
6.1 License Grant: Subject to the terms and conditions of this Agreement, ISARA hereby grants Licensee a personal, revocable, non-exclusive, non-transferable, royalty-free right, limited right to use the Licensed Programs and related Documentation in the Territory during the Trial Period, solely for internal purposes and not for any production or commercial purposes.
6.2 Compliance with Applicable Laws:
6.2.1 Authorizations: Licensee shall comply with all Applicable Laws in relation to its activities under this Agreement, and without limiting the generality of the foregoing, shall obtain, at its own expense, all authorizations, permits, certifications and licenses required by any Governmental Authority (collectively, the “Authorizations”) in the jurisdictions where Licensee uses the Licensed Products and necessary for the conduct of its business operations and performance of its obligations pursuant to this Agreement and upon request shall provide copies thereof to ISARA.
6.2.2 Trade Controls: Licensee acknowledges that the Licensed Programs include encryption technology that may be subject to import/export controls and sanctions/embargos (“Trade Controls”) under Applicable Law including but not limited to Trade Controls imposed by Canada, the United States of America, the EU or the United Kingdom. Licensee represents and warrants that neither it nor its Affiliates, employers, owners, shareholders, members or partners are listed on, or owned 50% or more, collectively or individually, by any person or entity listed on any restricted party list issued by Canada, the United States of America, the EU, the United Kingdom or another jurisdiction or Governmental Authority having jurisdiction over the Licensee (Restricted Party List). Licensee is solely responsible for compliance with Trade Controls. Licensee specifically represents and warrants that it will: (i) obtain all permits, licenses or other authorizations required by Trade Controls; (ii) not export or re-export the Licensed Programs to anyone in a country, territory or region that is subject to Canada’s Area Control List or comprehensive Canadian economic sanctions including North Korea, Syria or the Crimean Region of Ukraine or to any destination subject to applicable U.S., EU or United Kingdom economic sanctions/embargos; (iii) not export or re-export the Licensed Programs to any person or entity on any applicable Restricted Party List maintained by Canada, the U.S. the EU or the United Kingdom; (iv) not export or re-export the Licensed Programs for end-use or to an end-user involved in the development, production, handling, operation, maintenance, storage, detection, identification, or dissemination of chemical, nuclear or biological weapons, nuclear explosive or radiological dispersal devices, or their missile delivery systems, or in support of, exploration for or production of oil or gas in Russian deepwater (greater than 500 feet), Artic offshore locations or shale formations in Russia or in maritime areas claimed by Russia and extending from its territory. Licensee further represents that it is eligible to receive the Licensed Programs under Applicable Laws. Notwithstanding any confidentiality obligation, ISARA may provide this Section to any Government Authority responsible for Trade Controls. Licensee agrees to defend and indemnify ISARA for any and all claims and expenses arising out of Licensee’s failure to comply with this Section. In addition to any other remedy it may have, ISARA may block, suspend and/or cancel the delivery of the Licensed Programs if ISARA believes that such delivery may violate any Trade Controls.
6.3 Additional Terms and Restrictions:
6.3.1 Restrictions: Licensee shall not, and shall not cause or permit others to: (a) remove or modify any program or services markings or any notice of ISARA’s or its licensors’ proprietary rights, (b) make the Licensed Programs available in any manner to a third party, (c) modify, make derivative works of, disassemble, Reverse Engineer, reproduce, distribute, republish or download any part of the Licensed Programs, or access or use the Online Trial or any part thereof in order to build or support, and/or assist a third party in building or supporting, products or services competitive to ISARA, (d) perform or disclose any of the following security testing of the Licensed Programs, or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing, (e) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make available the Licensed Programs, (f) modify or change the cryptographic functionality of the Licensed Programs, or (g) use the Licensed Programs in any manner other than in a non-productive, non-hazardous environment that does not require fail safe controls, as authorized herein, and in accordance with all applicable laws.
6.3.2 Distribution as a Product: Notwithstanding the generality of the foregoing, Licensee shall not distribute or otherwise make available the Licensed Programs, or any part thereof, as part of an Integrated Product.
7.1 ISARA Ownership: Licensee acknowledges and agrees that ISARA or its suppliers own and shall continue to own all right, title and interest, including the Intellectual Property Rights, in and to the Licensed Programs and nothing in this Agreement passes any ownership interest in the Licenced Programs or any Intellectual Property Rights therein to the Licensee. To the extent that Licensee obtains ownership to any of ISARA’s Intellectual Property Rights in or to the Licensed Programs, Licensee hereby irrevocably transfers, conveys and assigns to ISARA, all of its right, title and interest therein. Licensee shall execute and shall ensure that Licensee personnel execute such documents, render such assistance, and take sure other action as ISARA may reasonably request, to give effect to this provision, to apply for, register, perfect, confirm and substantiate the ISARA’s rights under this Section 7.1 despite termination or expiration of this Agreement for any reason.
7.2 Feedback: Licensee may identify problems or suggest improvements or other changes to the Licensed Programs (“Feedback”) in the performance of this Agreement. ISARA is under no obligation to incorporate any such Feedback into the Licenced Programs. ISARA shall own all Intellectual Property Rights in and to any changes, improvements, upgrades, Updates and modifications made to the Licensed Programs as a result of such Feedback. The use of the Feedback will not impose any confidentiality or other obligations on ISARA.
7.3 Trademarks: Each Party acknowledges and agrees that nothing in this Agreement will transfer to the other Party any right, title or interest in or to any trade dress, logo, trade-mark, trade name, company name, service mark, domain name or other proprietary name or identifier (collectively “Identifiers”) used in association with the other Party’s products, including as it relates to ISARA, the Licensed Programs, or the advertisement thereof or by a third party licensed to do so by such Party. Each Party shall not use any identifier that is confusingly similar with an Identifier of the other Party and shall not register, either directly or indirectly, any Identifier that is identical or confusingly similar to any Identifier used by the other Party; where such Party knows or reasonably ought to know that the other Party uses or authorizes others to use that Identifier in the course of its business.
8.1 Confidentiality. By virtue of this Agreement, Licensee may have access to information that is confidential to ISARA, including but not limited to the Licensed Programs and any information related thereto (“Confidential Information”). Confidential Information shall not include information which (a) is or becomes a part of the public domain through no act or omission of Licensee, (b) was in Licensee’s possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from Licensee, (c) is lawfully disclosed to Licensee by a third party without restriction on disclosure, or (d) is independently developed by Licensee. Licensee agrees to hold Confidential Information in confidence and not to make Confidential Information available in any form to any unauthorized third parties. Licensee agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement.
9. REPRESENTATIONS AND WARRANTIES
9.1 No Warranties: THE LICENSED PROGRAMS PROVIDED PURSUANT TO THE ONLINE TRIAL ARE PROVIDED TO LICENSEE ON AN “AS IS” AND “AS AVAILABLE” BASIS. ISARA DOES NOT GUARANTEE THAT: (A) THE LICENSED PROGRAMS WILL BE PROVIDED ERROR-FREE OR UNINTERRUPTED, OR THAT ISARA WILL CORRECT ANY ERRORS, (B) THE LICENSED PROGRAMS WILL OPERATE IN COMBINATION WITH LICENSEE’S CONTENT OR APPLICATIONS, OR WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEMS OR DATA, (C) LICENSEE’S CONTENT AND APPLICATIONS WILL BE SECURED OR NOT OTHERWISE DAMAGED, AND (D) THE LICENSED PROGRAMS WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS.
9.2 Disclaimer: EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT ISARA DOES NOT MAKE ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE AND TO THE EXTENT LEGALLY PERMISSIVE, HEREBY EXPRESSLY DISCLAIMS ALL SUCH OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY CONDITIONS, WARRANTIES OR OTHER TERMS AS TO THE CONDITION, QUALITY, NON-INFRINGEMENT, DURABILITY, MERCHANTABILITY, PERFORMANCE OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE LICENSED PROGRAMS, DOCUMENTATION AND ANY WARRANTY WITH RESPECT TO COMPLIANCE WITH APPLICABLE LAWS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ISARA SPECIFICALLY DISCLAIMS THE SUITABILITY OF THE LICENSED PROGRAMS FOR USE WITH OR AS PART OF AN INTERGRATED PRODUCT WHICH IS RELATED TO MISSION CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIONMENTS REQUIRING FAIL SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL AND LIFE SUPPORT OR WEAPONS SYSTEMS.
10.1 Licensee Indemnity: Licensee agrees to defend, indemnify and hold harmless ISARA and its and its Affiliates, and each of their directors, officers, employees, shareholders, agents and advisors against any Loss arising from any third party claim, demand, action, cause of action, suit, arbitration, investigation, proceeding, complaint, grievance, charge, prosecution, assessment or reassessment, including any appeal or application for review, arising out of or in connection with: (A) the use or distribution of any Integrated Product or any non-ISARA content, application or software; (B) any breach by the Licensee of this Agreement; (C) the infringement, violation or misappropriation of any Intellectual Property Rights by Licensee or any Integrated Product; of (D) injury or death of a person caused by the negligent or intentional acts of Licensee in relation to this Agreement.
11.1 In no event shall ISARA be liable for any indirect, special, incidental, exemplary, punitive or consequential Loss (including, without limitation, lost profits, loss of business profits or revenues, business interruption, loss of data, damages caused by delays, or a failure to realize expected savings or damages caused by delays, cost of substitute goods, facilities or services, cost of capital, or other pecuniary loss) arising out of or in connection with this Agreement, the Licensed Program, or the Online Trial, including without limitation the use of or inability to use the Licensed Programs or any portion thereof, whether or not such Loss could reasonably be foreseen or their likelihood has been disclosed. In no event shall ISARA have any liability to Licensee under this Agreement for damages exceeding the amount of one hundred Canadian dollars ($100.00).
12. END OF AGREEMENT
12.1 Termination: ISARA may terminate this Agreement and Licensee’s access to the Online Trial and access to or use of the Licensed Programs and Documentation at any time and for any reason without notice. Licensee may discontinue use of the Online Trial and Licensed Programs at any time. At the end of the Trial Period, all rights to access or use granted to Licensee under this Agreement shall end.
13.1 Entire Agreement: This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and there are no provisions, representations, warranties, undertakings, or other agreements between the Parties other than as set out in this Agreement. This Agreement supersedes any prior or contemporaneous understandings, communications, representations, warranties, undertakings or other agreements and agreements between the Parties, whether oral or written, with respect to the subject matter hereof, and no Party has relied on any of the foregoing in agreeing to enter into this Agreement.
13.2 Enurement: This Agreement enures to the benefit of and shall be binding upon the Parties hereto and their respective successors and permitted assigns.
13.3 Waiver and Amendment: No amendment, discharge, modification, restatement, supplement, termination or waiver of this Agreement or any Section of this Agreement is binding unless it is in writing and executed or accepted online by the Parties to be bound. Notwithstanding the foregoing, ISARA may make changes to the Online Trial, the Licensed Programs and this Agreement, and Licensee agrees that Licensee’s continued use of the Licensed Programs pursuant to the Online Trial constitutes acceptance of, and agreement to, such changes. No waiver of, failure to exercise, or delay in exercising, any Section of this Agreement constitutes a waiver of any other Section (whether or not similar) nor does any waiver constitute a continuing waiver unless otherwise expressly provided.
13.4 Severability: Each Section of this Agreement is distinct and severable. If any Section of this Agreement, in whole or in part, is or becomes illegal, invalid, void, voidable or unenforceable in any jurisdiction by any court of competent jurisdiction, the illegality, invalidity or unenforceability of that Section, in whole or in part, will not affect the legality, validity or enforceability of the remaining Sections of this Agreement, in whole or in part; or the legality, validity or enforceability of that Section, in whole or in part, in any other jurisdiction.
13.5 Governing Law: This Agreement shall be governed by and construed under the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each Party irrevocably and unconditionally submits and attorns to the exclusive jurisdiction of the Courts of the Province of Ontario to determine all issues, whether at law or in equity, arising from this Agreement. To the extent permitted by Applicable Law, each of the Parties irrevocably waives any objection including any claim of inconvenient forum, that it may now or in the future have to the venue of any legal proceeding arising out of or relating to this Agreement in the courts of that Province, or that the subject matter of this Agreement may not be enforced in those courts. In construing, interpreting and enforcing this Agreement, choice of law principles shall not apply. The United Nations Convention on Contracts for the International Sale of Goods will not be applicable to this Agreement or the transactions contemplated by this Agreement.
13.6 Injunctive Relief: The Licensee agrees that a material breach of this Agreement may cause irreparable harm to ISARA, for which a remedy at law may be inadequate. Accordingly, in addition to any remedies at law, subject to any express limitations under this Agreement, ISARA may seek injunctive relief without posting any security.
13.7 Independent Contractors: Nothing in this Agreement will be deemed to create a joint venture, partnership, or agency relationship between the Parties or empower one Party to assume or create any obligation on behalf of the other. It is understood and agreed that Licensee and ISARA are, and at all times, shall remain independent contractors. At no time shall either Party represent to any third party that it is the agent of the other for any reason whatsoever.
13.8 Survival: The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof shall so survive the completion of performance, expiration or termination of this Agreement.
13.9 Headings and Construction: The division of this Agreement into Articles and Sections and the insertion of recitals and headings are for convenience of reference only and shall not affect the construction or interpretation hereof.
13.10 Extended Meanings: Wherever in this Agreement the context so requires, the singular number shall include the plural number and vice versa. The terms “hereof”, “herein”, “hereunder” and similar expressions refer to this Agreement and not to any particular Section or other portion hereof and include any agreement supplemental hereto. The term “includes” in this Agreement shall be construed as meaning “includes without limitation” and “including without limitation”.