SOFTWARE LICENSE AGREEMENT

This Software License Agreement ("Agreement") is entered into and effective as of the date the User accepts this Agreement by clicking “I Agree” or creating an account on the RoBIM web application ("Effective Date"), by and between RoBIM Technologies Inc., with an address of 2100 Bell Tower, 10104-103 Avenue NW, Edmonton, AB, T5J 0H8, a corporation formed under the laws of Alberta ("RoBIM") and the individual or entity accessing and using the Software (“User”).

RECITALS

WHEREAS, RoBIM is the owner of the Software (as defined below).

AND WHEREAS, the User wishes to access and use the Software in accordance with this Agreement.

NOW THEREFORE, for good and valuable consideration, the Parties agree as follows.

  1. DEFINITIONS

 

  1. Definitions. The following terms as used in this Agreement, including the recitals, shall have the meanings indicated below, unless otherwise indicated or the context otherwise requires:

  1. “Business Day” means Monday through Friday excluding those statutory holidays for Alberta, Canada.

  1. “Confidential Information” means any information about a party, including but not limited to information about its business, products, services, suppliers, Users, or pricing that is provided or otherwise obtained pursuant to this Agreement, except that Confidential Information does not include information that: (i) was in the prior possession of the receiving party; (ii) was received by the receiving party from a third party without obligations of confidentiality; (iii) is in the public domain; or (iv) is developed independently by a party without use of or reference to the information of the other party. The Software shall be deemed to be the Confidential Information of RoBIM.

  1. “Content” means information or output provided by or for User or generated by User in using the Software.

  1. “Derivative Work” means a work that is based upon one or more pre-existing works, such as a revision, modification, translation (including compilation or recapitulation by computer), abridgement, condensation, expansion, or any other form in which such a pre-existing work may be recast, transformed, or adapted, and that, if prepared without authorization by the owner of the pre-existing work, would constitute a copyright infringement.

  1. “Initial Term” has the meaning set out in Section 7.

  1. “Intellectual Property Rights” means: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighbouring rights, moral rights, and mask works, and all Derivative Works thereof; (ii) trade design and industrial design rights; (iii) integrated circuit topography rights; (iv) trade-mark and trade name rights and similar rights; (v) trade secret rights and rights in confidential information; (vi) patents, designs, algorithms and other industrial property rights, (vii) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (viii) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

  1. “Renewal Term” has the meaning set out in Section 7.

  1. “Services” means the technical support services described in Schedule “A” and as otherwise agreed in writing by the Parties.

  1. “Software” means the [software] provided by RoBIM to be installed only on a Server owned by User.

  1. “Term” means the Initial Term, and any Renewal Terms, if applicable.

  1. LICENSE GRANT/RESTRICTIONS

 

  1. License to User. RoBIM hereby grants User a non-exclusive, non-transferable, non-assignable, worldwide limited license during the Term to: (i) use, reproduce, perform, display, modify and create Derivative Works of the Software solely for User’s own internal business purposes, and (ii) use and distribute the content or output generated from the use of the Software.
  2. Restrictions. User is not licensed or permitted under this Agreement to do any of the following and shall not allow any User personnel or others for whom User is responsible to do any of the following: (i) access or attempt to access any other RoBIM software systems, programs or data that are not made available for public or specifically licensed to the User under this Agreement; (ii) reproduce, rent, sell, lease, lend, redistribute or sublicense the Software or permit any third party to benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, or other arrangement; (iii) use the Software on any server that User does not own or control; (iv) copy, modify, or create Derivative Works of the Software or Services for use other for the User’s internal business purposes; (v) work around any technical limitations in the Software or use any tool to enable features or functionalities that are otherwise disabled in the Software s; or (vi) otherwise use the Software except as expressly allowed under this Agreement. User may not release to any third party the results of any evaluation of the Software performed by or on behalf of User for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of RoBIM.
  3. Services. RoBIM agrees to provide Services in accordance with this Agreement.

 

  1. PAYMENTS

 

  1. License Fees. Some features of the Software may require a paid subscription. Fees, where applicable, are listed on the platform.

 

  1. License Price Changes. There shall be no increase in the fees or price unless RoBIM provides User with at least 60 days advance notice of any changes of the License Fee prior to each anniversary of the Effective Date. No annual increase shall exceed 3% of the prices payable in the preceding year of this Agreement.

  1. Taxes. License Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and User shall be responsible for payment of all such taxes, levies, or duties. If RoBIM has the legal obligation to pay or collect taxes for which User is responsible, the appropriate amount shall be invoiced to and paid by User unless User provides RoBIM with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

  1. Interest. Interest will be payable on any overdue amounts under this Agreement at the lesser of 12 percent per annum or the highest amount permitted by law.

  1. REPRESENTATIONS AND WARRANTIES

 

  1. Capacity. Each party represents and warrants to the other that it has the full power and authority to enter into this Agreement and to carry out its obligations under this Agreement.

 

  1. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE AND SERVICES ARE PROVIDED “AS-IS” AND ROBIM DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. ROBIM SHALL HAVE NO LIABILITY FOR ANY USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, OR FOR ANY ERROR, INACCURACY OR OMISSION IN THE SOFTWARE AND SERVICES CAUSED BY ANY INCOMPLETENESS OR INACCURACY OF USER DATA, OR ANY UNAVAILABILITY, INTERRUPTION OR DEGRADATION OF INTERNET SERVICE.

  1. Indemnification. User represents and warrants that any content used or supplied by User in accessing and using the Software, and the use thereof, will not infringe or misappropriate any third party’s Intellectual Property Rights. User shall defend, indemnify and hold harmless RoBIM from any and all claims, damages and expenses arising from any allegation that the content used or supplied by User in accessing and using the Software or use thereof, infringes or misappropriates a third party’s Intellectual Property Rights. RoBIM shall defend, indemnify and hold harmless User from any and all claims, damages and expenses arising from any allegation that the Software, or use thereof in accordance with this Agreement, infringes or misappropriates a third party’s Intellectual Property Rights, except where such infringement rises in whole or in part from any modification to the Software made by or for User from any combination of the Software with any content, data, hardware, software, technology or intellectual property not provided by RoBIM.

  1. TERM AND TERMINATION

 

  1. Term. This Agreement shall commence on the Effective Date and run for an initial term of [years] years from the effective date (the “Initial Term”) and shall automatically renew for successive terms of on year (each a “Renewal Term”) unless either party provides at least thirty (30) days’ notice prior to the end of the initial Term or Renewal Terms, as applicable.
  2. Termination. This Agreement may be terminated by a party upon written notice where it has previously provided written notice of a material breach or default of any of the provisions of this Agreement by the other party, and such breach or default remains uncured for a period of thirty (30) days after the receipt of written notice describing such breach.

 

  1. Effect of Termination. Immediately after the effective date of expiration or termination of this Agreement, User shall discontinue all use of the Software and return to RoBIM or destroy all copies of the Software and documentation related to Software within ten (10) days of the expiration or termination of this Agreement. User shall pay all amounts due or accruing due as of the effective date of expiration or termination.

  1. CONFIDENTIALITY

 

  1. Confidential Information. Each party agrees to maintain the confidentiality of the Confidential Information of the other party, and shall not disclose the Confidential Information of the other party without its prior written consent or as required by law. Each party agrees not to use the Confidential Information of the other party except to fulfill obligations or exercise rights under this Agreement, or to enforce this Agreement. A party shall be entitled to disclose the Confidential Information of the other party where required by applicable law, or the order of a court or government agency without authority to do so, except that where permitted by applicable law, the party obligated to disclose such Confidential Information shall provide prior written notice of such disclosure to the party whose Confidential Information is being disclosed.

 

  1. OWNERSHIP

 

  1. Software. RoBIM or its licensors shall own all right, title and interest in and to the Software, and any improvements, modifications or Derivative Works thereof made by or for User, including but not limited to all Intellectual Property Rights in and to all of the foregoing.

 

  1. Inventions and Improvements. Any and all inventions and improvements which the User may conceive, suggest or make while receiving access to the Software shall be the sole and exclusive property of RoBIM. User hereby assigns and agrees to assign to RoBIM all right, title and interest in and to such inventions and improvements, including but not limited all Intellectual Property Rights therein or thereto.

  1. INDEMNIFICATION

 

  1. User Indemnification. User shall defend, indemnify and hold harmless RoBIM from any and all claims, damages and expenses arising from any allegation that the Content, or modification or Derivative Works of the Software created by or for User, or the use of any of the foregoing, infringes or misappropriates a third party’s Intellectual Property Rights.

 

  1. RoBIM Indemnification. RoBIM shall defend, indemnify and hold harmless User from any and all claims, damages and expenses arising from any allegation that the Software, or use thereof in accordance with this Agreement, infringes or misappropriates a third party’s Intellectual Property Rights, except where such infringement rises in whole or in part from any modification to the Software made by or for User from any combination of the Software with any content, data, hardware, software, technology or intellectual property not provided by RoBIM.

  1. Conditions of Indemnification. A party seeking indemnification (“Indemnified Party”) promptly notify the other party (“Indemnifying Party”), in writing, of any claim for which the Indemnified Party seeks indemnification (provided that the Indemnified Party’s failure to provide such notice or to provide it promptly will relieve the Indemnifying Party of its indemnification obligations only if and to the extent that such failure prejudices the Indemnifying Party’s ability to defend the claim(s)). The Indemnified Party agrees to cooperate with the Indemnifying Party’s sole control and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of any such controversy or proceedings.

  1. LIMITATIONS OF LIABILITY

 

  1. EXCEPT FOR A BREACH OF SECTIONS 2, 6, 7 OR 8, OR A PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE FOR: (i) ANY FORM OF INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, LOST PROFITS OR OTHER ECONOMIC LOSSES, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT (INCLUDING NEGLIGENCE), CONTRACT AND BREACH OF WARRANTY, EVEN IF THE OTHER PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) EXCEPT WITH RESPECT TO AMOUNTS UNDER THIS AGREEENT BY USER TO ROBIM , DAMAGES IN EXCESS OF AMOUNTS PAID OR PAYABLE BY USER TO ROBIM IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE DATE SUCH DAMAGES AROSE.

  1. GENERAL

 

  1. Notices. All notices shall be sent to the email provided during sign-up or as otherwise notified.

 

  1. Force Majeure. Non-performance of this Agreement (other than any failure to meet to make payments required under this Agreement) by a party shall be excused to the extent that performance by such party is rendered impractical or impossible by civil disobedience, strike, earthquake, fire, flood, natural disaster, epidemic, governmental acts, governmental orders or governmental restrictions, shortages of supplies, or any other reason where failure to perform is beyond the reasonable control of, and not caused by negligence of, the non-performing party (“Event of Force Majeure”); provided further that the non-performing party provides prompt notice of the Event of Force Majeure and its expected duration, and uses reasonable efforts to resolve such Event of Force Majeure. In the event that an Event of Force Majeure continues for more than ten (10) business days that diminishes the functionality or use of the Subscription services, User shall have the right to terminate this Agreement without further liability to RoBIM.

 

  1. Equitable Relief. Each party acknowledges that any breach of its obligations under this Agreement with respect to the proprietary rights or Confidential Information of the other party shall cause irreparable injury for which there are inadequate remedies at law, and therefore the other party shall be entitled to seek in any court of competent jurisdiction injunctive, preliminary or other equitable relief in addition to damages, including court costs and reasonable legal and other professional fees, to remedy any actual or threatened violations of its rights with respect to such matters.

  1. Amendment. No modification or amendment to this Agreement shall be effective unless in writing and signed by both parties. Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any waiver shall be effective only if in writing and signed by the party waiving rights.

  1. Entire Agreement. This Agreement, including the attached Schedules incorporated herein, contains all the terms and conditions and constitutes the entire agreement in force and effect between the parties with respect to the subject matter of this Agreement. This Agreement supersedes all previous proposals, both oral and written, negotiations, representations, commitments, writings and all other communications between the parties.

  1. Survival. Sections 1, 4, 5.3, 6-10 shall survive the expiration or termination of this Agreement.

  1. Assignment. User may not assign this Agreement without the express written consent of RoBIM, which may be withheld in its sole discretion. This Agreement shall be binding upon and enure to the benefit of the parties and their respective heirs, executors, legal personal representatives, successors and assigns.

  1. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other provision of this Agreement.

  1. Headings. The division of this Agreement into Articles and Sections and the insertion of headings are for convenient reference only and are not to affect its interpretation.

  1. Choice of Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the Province of Alberta other than with respect to conflict of laws. The parties irrevocably submit and attorn to the exclusive jurisdiction of the courts of the Province of Alberta in respect of matters arising in connection with Agreement.

  1. Counterparts. This Agreement may be executed in two or more counterparts, and transmitted by facsimile or electronically as a PDF (Portable Document Format) document, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same instrument.

By checking the box and clicking “I Agree” at sign-up, the User agrees to the terms of this Agreement.

Contact: info@robimtech.com