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BTI End-User Software License Agreement

The software and related documentation (collectively, the "Licensed Software", as further defined below) is offered by BTI Systems Inc. ("BTI"), having offices at 1000 Innovation Drive, Ottawa Ontario, Canada K2K 3E7 (ph: +1-613-287-1700, fax: +1-613-287-1886) for your use in accordance with the terms and conditions below.

By accepting this license in any manner described in Section 20 below, you represent that you have read, understood and agree to be bound by and comply with the terms and conditions of this End-User Software License Agreement (this "License" or “EULA”). This License defines what you may do with the Licensed Software and may contain limitations on warranties and/or remedies. If you do not agree with or accept these terms and conditions then you are not granted a license and are not authorized to access, download, install or use the Licensed Software.

TERMS AND CONDITIONS

  • 1. BACKGROUND

    BTI has developed and licenses or sublicenses:

    • (i) integrated, modular software to run on various components of its 7000 series Packet Optical Networking Systems (collectively, the “7000 Series Software”);

    • (ii) integrated, modular network management, control and design software designed to be run in connection with BTI equipment (the “ProNX Software);

    • (iii) integrated, modular software to run on various components of its 700 series Packet Optical Networking Systems (collectively, the “700 Series Software”); and

    • (iv) various third party application software solutions to run on or in conjunction with BTI equipment (“BTI Licensed Solutions”).

    You will have running on your BTI equipment some versions of the 7000 Series Software, the 700 Series Software, or both, and you may also be using on or in connection with your BTI equipment, the ProNX Software and/or BTI Licensed Solutions. Throughout this License, the term “Licensed Software” refers to all Licensed Software which you are currently using in the configuration you have purchased licenses for, together with associated documentation, unless specifically stated otherwise.

    Collectively, the 7000 Series Software, the ProNX Software, the 700 Series Software and the BTI Licensed Solutions, together with all associated Documentation are referred to as the "Licensed Software" throughout this License.

  • 2. DEFINITIONS

    • 2.1 “Application Software“ means Licensed Software other than Operating System Software.

    • 2.2 “Licensed Software“ means software in binary form that BTI has formally released and its associated documentation, reference specifications - e.g. read-me files, installation notes, and release notes that are provided in or for the software (separately referred to as “Documentation“) (or that BTI has verified as compatible, as specified in Documentation) as fully supported. For greater clarity, Licensed Software also includes Updates and Upgrades to the extent that you have purchased Upgrades or Upgrades which BTI may provide to you under any BTI maintenance and support program.

    • 2.3 “Licensee“ (or “you“) means the entity that accepted and agreed to be bound by the terms and conditions of this License.

    • 2.4 “Network Element“ means BTI networking equipment that is managed and controlled by a single instance of either 7000 Series Software or 700 Series Software.

    • 2.5 “Operating System Software“ means the 700 Series Software, the 7000 Series Software and any other software or firmware which runs on BTI equipment, the primary purpose of which is to manage hardware resources and provide common services for the efficient execution of Application Software.

    • 2.6 “Update“ means new versions of Licensed Software components that provide error corrections, and are included in BTI-issued maintenance, service pack, or patch releases to Licensed Software.

    • 2.7 “Upgrade” means new versions of Licensed Software components that provide enhanced functionality and/or performance improvements and include all major software version releases.

    • 2.8 "Use" includes to access, install, download, copy or otherwise benefit from using the functionality of the Licensed Software in accordance with the Documentation.

  • 3. LICENSE GRANT AND CONSIDERATION.

    • 3.1 Subject to your payment when due of all applicable license fees (including but not limited to renewal fees for any subscription-based licenses or services) specified on BTI’s (or its distributor’s) invoice for the Licensed Software or BTI equipment, as the case may be ("Invoice" or “Invoices”, which is hereby incorporated into this License), and subject to the terms and conditions of this License, BTI hereby grants to you the following limited, non-exclusive, personal, non-sub licensable and non-transferable (except as contemplated in Section 19 - Assignment-) license(s) to the Licensed Software:

      • (i) to Use the 7000 Series Software in such configurations and only on that BTI 7000 Series equipment corresponding with the licenses you have purchased as evidenced on one or more Invoices or as furnished to you under a separate Maintenance and Support Agreement provided by BTI;

      • (ii) to Use the ProNX Software in such configuration and only on one or more processors to manage or control that number of Network Elements shown in the applicable Invoice or as furnished to you under a separate Maintenance and Support Agreement provided by BTI;

      • (iii) to Use the 700 Series Software in such configurations and only on that BTI 700 Series equipment corresponding with the licenses you have purchased as evidenced on one or more Invoices or as furnished to you under a separate Maintenance and Support Agreement provided by BTI ; and

      • (iv) to Use the BTI Licensed Solutions in such configuration and on such BTI equipment or on such other processors in the manner and to the extent specified in the Invoice at the time the sublicense for such BTI Licensed Software is initially purchased or as furnished to you under a separate Maintenance and Support Agreement provided by BTI.

    • 3.2 You may Use the Documentation provided by BTI to assist you with the operation and use of the Licensed Software, in both paper and electronic form.

    • 3.3 You make one copy of the Licensed Software solely for archive or backup purposes.

  • 4. AUDITS OF SOFTWARE USE.

    • 4.1 You will maintain for a period of six (6) years after the end of the year to which they relate, accurate records regarding all activities relating to this License. BTI reserves the right to audit your books and records (or have an independent third party audit), upon at least twenty (20) days prior written notice and at its expense, to determine your compliance with the terms and conditions of this License. If a confidentiality agreement or non-disclosure agreement is in force between you and BTI, that agreement shall apply to the audit, and if not you may require that a mutually agreed confidentiality agreement be entered into prior to the commencement of the audit.

    • 4.2 Audits will not occur and reports will not be requested more than once each year unless discrepancies are discovered or unless BTI presents reasonable evidence (including but not limited to evidence based on the response or a non-response to the requirement set forth under Section 4.1) that you are not complying with the terms and conditions of this License. If an audit or report reveals Use of the Licensed Software by you outside the terms and conditions of this License, you agree to correct any payment errors immediately by an adjustment payment, which will include interest on the overdue amount at a rate equal to fifteen percent (15%) per annum compounded monthly or the highest rate permitted by law, whichever is lower, of the outstanding payment from the date due until the date paid. You will also reimburse BTI for all reasonable costs and expenses related to such audit or report, in addition to any other liabilities you may incur as a result of such non-compliance.

  • 5. PROHIBITED ACTIVITIES.

    You may not and will not authorize others to

    • 5.1 Decompile, disassemble, decrypt, extract, unbundle, translate, or otherwise attempt or assist others to reverse engineer any part of the Licensed Software except to the extent if any that BTI is expressly precluded by law from prohibiting these activities. The Licensed Software IS NOT OPEN SOURCE; or

    • 5.2 Alter, remove, or cover any trademark, logo, proprietary or licensing notices, labels, or marks in or on any part of the Licensed Software. You agree to exercise reasonable efforts to ensure that all whole or partial copies of the Licensed Software bear the same notices, labels, and marks contained in or on the original Licensed Software; or

    • 5.3 Directly or indirectly export, import, or transmit the Licensed Software to any country in contravention of the laws of that country, or the laws of Canada or the United States. Without restricting the foregoing, you may not download or transfer the Licensed Software to: (i) any country prohibited by United States and/or Canadian laws and regulations; (ii) any person or entity prohibited from receiving United States and/or Canadian exports (including but not limited to those involved with missile technology or nuclear, chemical or biological weapons and those on US government restricted persons/entities lists - see http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm); or (iii) any country which requires an import or use permit for encryption technology. You (Licensee) represent and warrant to BTI that you are not in or a resident of one of the restricted countries, and that you are not one of the restricted individuals or entities referred to above. You understand that the import or export of the Licensed Software may be regulated by some governments due to the Licensed Software’s encryption capabilities. You accept sole responsibility to ensure that your Use of the Licensed Software complies with the law; or

    • 5.4 Use the Licensed Software in any application in which death, personal injury, or severe physical or property damage is a foreseeable consequence of Licensed Software Use or failure (collectively, "High-Risk Applications") including but not limited to the operation of nuclear facilities, mass transit systems, aircraft navigation, flight control or communications systems, air traffic control systems, weapon systems, and life-support machines. BTI EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION OF FITNESS FOR HIGH-RISK APPLICATIONS.

    • 5.5 Grant any sublicenses to the Licensed Software other than as explicitly permitted herein.

    • 5.6 Use the Licensed Software in a standalone manner.

  • 6. PRESERVATION OF RIGHTS.

    • 6.1 You agree not to directly or indirectly grant, or purport to grant, to any third party any rights or immunities under BTI’s or its licensors’ intellectual property rights in the Licensed Software that will subject such intellectual property to an open source license or scheme in which there is or could be interpreted to be a requirement that as a condition of Use, modification and/or distribution, the Licensed Software be:

      • (i) disclosed or distributed in source code form;
      • (ii) licensed for the purpose of making derivative works; or
      • (iii) redistributable at no charge.

  • 7. THIRD PARTY SOFTWARE.

    • 7.1 The Licensed Software IS NOT OPEN SOURCE however, components of the Licensed Software contain elements of third-party software that are licensed to BTI (and are therefore provided to you) for limited purposes and under terms and conditions that differ from those of this License. Such licenses include (and may in future include) but are not limited to:

      • (i) the Eclipse Public License (“EPL”), GNU Public License (“GPL”), Lesser GNU Public License (“LGPL”), Mozilla Public License (“MPL”), Apache 2.0, and other open source licenses;

        (ii) third party licenses that impose restrictions on use, copying, authorized purposes, etc. and/or supplemental obligations.

    • Where required those third party license terms, and any notices required to be provided by those third party licensors, will be provided or made available to you. You are solely responsible for ensuring that limited-use software is not used outside of the limits stated.

  • 8. OWNERSHIP AND RESERVATION OF RIGHTS.

    • 8.1 The Licensed Software is protected by intellectual property laws including but not limited to copyright laws, both locally and internationally. The Licensed Software is licensed to you on the terms and conditions set forth in this License and is not sold. BTI and its licensors retain all rights, title and interests in and to the Licensed Software and reserve all rights in the Licensed Software not expressly licensed by this License including but not limited to copyrights and patent rights. No trademarks or service marks of BTI or its licensors are licensed by this License.

  • 9. FEEDBACK.

    • 9.1 BTI welcomes suggestions, comments or other feedback about its products (e.g., regarding their utility, reliability, or performance) and your user experience with the Licensed Software, as well as any bug fixes, features, functionality or enhancements you would like to see in future versions (collectively "Feedback"). You agree that all Feedback is and will be given entirely voluntarily and, even if designated as confidential, will not create any confidentiality obligations for BTI. You agree not to:

      • (i) provide any Feedback that you know or have reason to believe is subject to any third party intellectual property rights or would disclose third party confidential information, or

      • (ii) disclose to BTI as Feedback any of your intellectual property rights or confidential information you intend to keep or license to BTI. In the absence of a separate written agreement between the parties, and in order for BTI to incorporate Feedback that you provide, you (Licensee) hereby agree to: (A) assign (and do hereby assign) to BTI all rights, title and interests (if any) in and to any BTI-specific Improvements (as defined below) included in or derived by or on behalf of BTI from your Feedback, including but not limited to any associated intellectual property, and (B) obtain (or confirm you have obtained) written waivers of all moral rights (if any) in such BTI-specific Improvements in favor of BTI, its licensees, licensors, successor and assigns. In this Section "BTI-specific Improvements" means any work-arounds, bug-fixes, features, functionality, enhancements or other suggested improvements to the Licensed Software, or to other Licensed Software components, that you provide.

  • 10. U.S. GOVERNMENT RIGHTS.

    U.S. GOVERNMENT RIGHTS. If you are a U.S. government or quasi- government entity, then you should be aware that the Licensed Software is a "commercial item", as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 C.F.R. 12.1212 (Sept. 1995). Consistent with 48 C.F.R. 12.1212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all such customers acquire the Licensed Software with only those rights set forth herein. Use, duplication, or disclosure by the U.S. government is subject to restrictions as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii) (OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. BTI Systems Inc. is the licensor.

  • 11. SUPPORT.

    For Series 7000 Software and Series 700 Software, basic support from BTI is available for 24 months from purchase of the related system under the terms and conditions of Schedule A (ServiceLink™ standard support) and enhanced maintenance and support is available for any Licensed Software pursuant to a separate Priority Support Agreement with BTI. See www.btisystems.com/Services/Professional-Services.aspx

  • 12. LIMITED WARRANTIES.

    • 12.1 BTI warrants that the Operating System Software will perform substantially in accordance with the Documentation or other specifications published by BTI for a period of twenty-four (24) months from the date of the receipt of the Operating System Software by the Customer. BTI warrants that the Application Software will perform substantially in accordance with the Documentation or other specifications published by BTI for a period of ninety (90) days from the date of the receipt of the Application Software by the Customer. BTI does not warrant, however, that your Use of the Licensed Software will be uninterrupted, that the operation of the Licensed Software will be error-free, that the Licensed Software will meet your requirements or that all errors will be corrected. You assume the entire risk as to the results and output of the Licensed Software. If during the warranty periods, as defined above, the Licensed Software fails to perform in accordance with the warranty, BTI shall use reasonable commercial efforts to correct the failure of the Licensed Software to perform in accordance with the warranty. If BTI is unable to correct the failure within a reasonable time, BTI shall refund the purchase price of the Licensed Software. BTI also warrants that the media (if any) on which the Licensed Software is encoded will be free from defects in materials and workmanship under normal use and service for a period of twenty-four (24) months from date of receipt. BTI shall, at its option, repair or replace any defective media of which it is given notice during the twenty-four (24) month period.

    • 12.2 If (a) any modifications are made to the Licensed Software by you during the warranty period, or (b) the media is subjected to accident, abuse, or improper use, then the above warranty shall immediately be terminated. The warranty outlined in Section 12.1 above shall be null and void if the Licensed Software is used on or in conjunction with hardware or programs other than the unmodified version of the hardware and programs with which the Licensed Software is designed to be used as described in the Documentation.

    • 12.3 BTI HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

    • 12.4 ALL THIRD PARTY SOFTWARE INCLUDED IN THE LICENSED SOFTWARE IS WARRANTED BY BTI UNDER SECTION 12.1 ABOVE. YOU SHALL NOT PURSUE ANY CLAIMS RELATED TO THIRD PARTY SOFTWARE WITH THE APPLICABLE MANUFACTURER OR SUPPLIER THEREOF AND SUCH MANUFACTURERS OR SUPPLIERS SHALL NOT HAVE ANY LIABILITY WHATSOEVER TO THE CUSTOMER FOR ANY DAMAGES, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES.

    • 12.5 You are responsible for backing up any and all data or reports produced by the Licensed Software, and for providing a proper operating environment for the Licensed Software.

    • 12.6 LIMITED WARRANTY OF PROVENANCE, INDEMNITY, AND EXCLUSIONS FROM INDEMNITY. Subject to the exceptions noted below BTI warrants to you that: (i) BTI is the author of the Licensed Software (or has a license from the author) and has the right to deliver the Licensed Software to you, and (ii) as delivered, the Licensed Software is not known to infringe any third party intellectual property rights. In support of the limited warranty of this Section 12.6, BTI offers to defend you against any third party copyright or patent infringement or trade secret misappropriation claims, and to indemnify and hold you harmless from any damages finally awarded in any third party action against you for said claims, based upon your use of the Licensed Software under the terms and conditions of this License, provided that you give BTI prompt notice, as well as all authority, information, and assistance (at BTI’s expense) necessary or desirable to defend such claims. Expressly excluded from this indemnity are assertions of: (A) copyright infringement or trade secret misappropriation based upon the use, reproduction, performance or distribution of components of Licensed Software that have been modified by you without authority from BTI (B) Licensed Software that infringe patents that are essential to satisfy any published and industry recognized standards/recommendations, including but not limited to standards/recommendations of ITU, IEEE, ETSI, ISO, MPEG, CSS, DVD, JPEG, DivX, Dolby, AVC/H.264, ATM Forum, Frame Relay Forum, SMPTE, ATSE, GSM, IETF, etc, and (C) Multimedia content (Section 14).

    • 12.7 REMEDY AND LIMITATION OF DAMAGES FOR INDEMNIFIED CLAIMS. With respect to any finding of breach of the warranty in Section 12.6 (Limited Warranty of Provenance, Indemnity and Exclusions from Indemnity), or if BTI reasonably believes that one or more of the indemnified acts in Section 12.6 have occurred or may occur, BTI will, at its sole expense and option: (i) procure for you the right to continue using the infringing Licensed Software; (ii) replace the infringing Licensed Software with non-infringing software of comparable functionality; (iii) modify the infringing Licensed Software to be non-infringing; or (iv) if none of the foregoing alternatives is reasonably available to BTI, terminate your right to the Licensed Software, but only to the extent necessary to avoid or mitigate damages. You will have the right to terminate all of your rights if you determine such partial termination renders your remaining rights ineffective. Upon such full or partial termination, BTI will refund to you, pro-rata to the extent of such termination, the license fees paid by you pursuant to this License that are associated with the terminated rights. THIS SECTION 12.7 STATES YOUR EXCLUSIVE REMEDIES FOR INFRINGEMENT AND MISAPPROPRIATION BY THE LICENSED SOFTWARE.

    • 12.8 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED SOFTWARE AND ANY SERVICES PROVIDED UNDER OR IN CONNECTION WITH THIS LICENSE AGREEMENT ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SUBJECT TO THE LIMITED WARRANTY IN SECTION 12.1, BTI DOES NOT WARRANT AND NOTHING IN THIS LICENSE IMPLIES ANY WARRANTY THAT THE OPERATION OF THE LICENSED SOFTWARE OR ACCESS TO SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY ERRORS FOUND WILL BE CORRECTED.

    • 12.9 SURVIVAL.

      This Section 12 will survive termination and will apply notwithstanding the failure of essential purpose of any limited remedy.

  • 13. LIMITATION OF LIABILITY.

    • 13.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BTI, OR ITS AFFILIATES, OR THEIR OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS, OR LICENSORS (COLLECTIVELY "BTI AND ITS REPRESENTATIVES") BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, ARISING OUT OF OR RELATING TO ANY USE OR INABILITY TO USE THE LICENSED SOFTWARE OR SERVICES, EVEN IF BTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM

      TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY TO YOU OF BTI AND ITS REPRESENTATIVES FOR ANY DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES YOU HAVE PAID TO BTI FOR USE OF THE LICENSED SOFTWARE AND FOR SERVICES IN THE 12 MONTHS PRECEDING THE CLAIM. THIS SECTION 13 WILL SURVIVE TERMINATION AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

      YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS LICENSE CONSTITUTE AN ESSENTIAL ELEMENT OF THIS LICENSE IN THE ABSENCE OF WHICH: (A) THE FEES AND OTHER TERMS IN THIS LICENSE WOULD BE SUBSTANTIALLY DIFFERENT; AND (B) BTI’S ABILITY TO OFFER AND YOUR ABILITY TO PURCHASE YOUR LICENSED SOFTWARE AND SERVICES OR ANY PORTION THEREOF UNDER THIS LICENSE WOULD BE IMPAIRED.

  • 14. MULTIMEDIA CONTENT.

    • 14.1 Certain components of the Licensed Software may enable the systems on which such Licensed Software is operated to produce or reproduce (including but not limited to by ripping), copy, perform and/or display multimedia content (e.g., audio, images, video). The required intellectual property license rights necessary to use or offer devices with such capabilities will vary, depending on factors such as the intended use of the device, the types of content involved, the markets in which the device is used or sold, etc. You are solely responsible for determining all such requirements and making all of the arrangements (e.g., obtaining licenses, paying copyright collectives’ fees, limiting the device functionality in some markets, etc.) necessary to offer related services (to the extent permitted by the terms and conditions of this License), in all of your direct or indirect markets. The provisions of Section 12.6 (Limited Warranty of Provenance, Indemnity, and Exclusions from Indemnity) do not extend to infringement caused by producing, reproducing, copying, performing or displaying any multimedia content. Further, you agree to indemnify and hold BTI and its Representatives harmless from any damages, and any costs and expenses (including but not limited to reasonable attorney’s fees) incurred, in any third-party action against any one or more of BTI and its Representatives based on intellectual property infringement caused by offering related services, in any of your direct or indirect markets ("Claims"), other than Claims based solely on infringement claims for which BTI remains responsible under Section 12.6.

  • 15. TERM, SUBSCRIPTION RENEWAL & TERMINATION.

    • 15.1 TERM, SUBSCRIPTION RENEWAL. The term of this License for paid-up Licensed Software licenses will continue until terminated. The term of this License for Licensed Software subscription licenses and maintenance and support subscriptions will end when the subscription term ends. You can renew Licensed Software and maintenance and support subscriptions by issuing purchase orders to BTI for the renewal at least thirty (30) days prior to the expiry date.

    • 15.2 TERMINATION. This License will terminate immediately for subscription-based licenses upon the expiration of your subscription term or your failure to pay any optional renewal fees when due. BTI may terminate this License upon fifteen (15) days advanced written notice of a material breach of this License if the breach has not been cured within the notice period, with the exception of payment or breach of confidentiality provisions, in which case termination will be immediate. All subscription fees are non-refundable. Termination is without prejudice to any right or remedy that may have accrued or be accruing to either party prior to termination.

    • 15.3 IMPLICATIONS OF TERMINATION. Upon termination, you will immediately destroy the original and all whole or partial copies of the Licensed Software used under this License that are in your possession or control. Termination will not relieve you from your obligation to pay BTI any and all fees or other amounts due under this License at any time or for any period. Any pre-payment of Licensed Software royalties or license fees is non-refundable. The provisions of this License that are expressed or by their sense and context are intended to survive the termination of this License will survive, including but not limited to Sections 2 (Definitions), 4 (Audits of Software Use),5 (Prohibited Activities), 6 (Preservation of Rights),7 (Third Party Software), 8 (Ownership and Reservation of Rights), 9 (Feedback), 10 (US Government Rights), 12 (Limited Warranties) , 13 (Limitation of Liability), 14 (Multimedia Content), 15 (Term, Subscription Renewal & Termination), 17 (Governing Law), 18 (Arbitration), 19 (Assignment), 21 (Whole Agreement) and 22 (Interpretation. Termination is without prejudice to any right or remedy that may have accrued, or be accruing to either Party prior to termination.

  • 16. DEFENSIVE TERMINATION FOR PATENT INFRINGEMENT ACTION.

    This License will terminate as of the date you institute patent litigation (including but not limited to a cross-claim or counterclaim in a lawsuit) in any jurisdiction against any entity alleging that the Licensed Software infringes or contributes to the infringement of a patent.

  • 17. GOVERNING LAW.

    This License will be governed by and construed in accordance with the laws in force in the Province of Ontario, Canada, without regard to the conflicts of laws provisions thereof. The parties hereby irrevocably waive:

    • (i) the provisions of the United Nations Convention on Contracts for the International Sale of Goods, and

    • (ii) any right to a trial by jury regarding the resolution of any dispute between the parties hereto arising out of or in connection with this License.

  • 18. ARBITRATION.

    It is the intention of the parties to settle any dispute relating to this License; however, if the parties cannot settle any such dispute themselves, then such dispute will be arbitrated and finally settled under the provisions of the Arbitration Act of Ontario and the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration will be Ottawa, Ontario, Canada. The language of the arbitration will be English. The decision of the arbitrator will be final and binding on the parties. The prevailing party will be entitled to recover its costs and expenses from the arbitration, including but not limited to reasonable attorney's fees. All information pertaining to any dispute that relates to this License will be considered Confidential Information for the purpose of Section 12 (Confidential Information).

  • 19. ASSIGNMENT.

    Subject to the export restrictions in Section 5.3, you may assign this License Agreement to a third party who has provided BTI with prior written acknowledgement of its acceptance of the License terms and conditions (the "Assignee"). Any other attempted assignment or delegation in violation of the foregoing will be void and of no effect. This License will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

  • 20. EXECUTION AND ACCEPTANCE.

    Nothing but this License (or any other written agreement between you and BTI) authorizes you to undertake any of the activities described in this License, and doing so in contravention of these terms and conditions is breach of contract and/or copyright or patent infringement. You accept this License with respect to all Licensed Software (whether delivered to you prior to, after or at the time you accept this License. Acceptance of this License and the formation of a legally binding and mutually enforceable contract will occur:

    • (i) when you agree in writing to be bound by the license;

    • (ii) when you purchase any BTI System and the License forms part of the terms and conditions of such purchase; or

    • (iii) when you install any Licensed Software (including without limitation, any Updates, and at the time of such installation you, your agent, contractor (including BTI where it has been contracted to install the Licensed Software) or subcontractor agree to this License by clicking on the “I Accept” button at the time of installation.

  • 21. WHOLE AGREEMENT.

    This License, including the Invoice, constitutes the entire agreement between the parties pertaining to this subject matter and supersedes any prior or contemporaneous agreement, representation, statement, negotiation, undertaking dealing with the same subject matter. The provisions of this License Agreement will prevail in the event of a conflict between any of its provisions and any inconsistent or additional terms or conditions of any related purchase orders or invoices. No amendment, modification or waiver of any part of this License will be binding unless in a written document that expressly refers to this License and that is signed by both parties

  • 22. INTERPRETATION.

    The divisions and headings in this Agreement have been included for convenience only and will not affect its construction or interpretation. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

  • 23. LANGUAGE.

    This License has been drafted in the English language at the express request of the parties. Les parties conviennent que la présente convention et tous les documents s'y rattachant soient rédigés en anglais.

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