SYNCROSIM DESKTOP SOFTWARE
End User License Agreement
ATTENTION: THIS IS A LICENSE, NOT A SALE. THIS SOFTWARE IS PROVIDED UNDER THE FOLLOWING LICENSE AGREEMENT THAT DEFINES WHAT YOU MAY DO WITH THE SOFTWARE AND CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES.
IMPORTANT: BEFORE DOWNLOADING, INSTALLING, OR USING THIS SOFTWARE, PLEASE CAREFULLY READ THIS LICENSE AGREEMENT WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LICENSE TO USE THE SOFTWARE. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE. IF YOU DOWNLOAD, INSTALL OR USE THE SOFTWARE, YOU WILL BE ACCEPTING THIS LICENSE AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS. THIS SOFTWARE IS ALSO PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES.
IF YOU ARE USING THE SOFTWARE AS AN AGENT OR EMPLOYEE OF A COMPANY, ORGANIZATION OR OTHER ENTITY THEN ANY REFERENCES TO “YOU” IN THIS LICENSE AGREEMENT SHALL REFER TO SUCH COMPANY, ORGANIZATION OR OTHER ENTITY AND NOT TO YOU IN YOUR PERSONAL CAPACITY. YOU HEREBY REPRESENT AND WARRANT THAT: (I) YOU ARE DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
1. DEFINITIONS. In this License Agreement:
1.1. “ApexRMS” means Apex Resource Management Solutions Ltd.
1.2. “Community Version” means the free version of the Software that is available for download at: https://syncrosim.com/download.
1.3. “Customer”, “You” or “Your” means either the individual obtaining or installing the Software, any entity on whose behalf such individual is acting, or the entity named in the applicable Order Form.
1.4. “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes that ApexRMS generally makes available to licensees of the Software, as updated from time to time.
1.5. “Fees” means the License Fee and the Support Fee.
1.6. “License Agreement” means this ApexRMS Software End User License Agreement and includes all Order Forms.
1.7. “License Fee” means the fee charged by ApexRMS and payable by Customer for a Subscription and which is specified in the applicable Order Form.
1.8. “Support Fee” means the fee specified in the applicable Order Form payable by a Customer that has obtained a Subscription to the Software for Support Services for the Software provided by ApexRMS.
1.9. “Support Services” means the technical support services for the Software provided by ApexRMS as described in, and in accordance with, the applicable Order Form.
1.10. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.11. “Order Form” means (i) an electronic form provided by ApexRMS on its website for ordering Software Subscriptions and/or Support Services, or (ii) a written document executed by ApexRMS and Customer in respect to Customer’s purchases of Software Subscriptions and/or Support Services from ApexRMS.
1.12. “Professional Version” means the generally available paid version of the Software that is available only by entering into an Order Form with ApexRMS.
1.13. “Software” means the ApexRMS software program in object code form that can be downloaded after acceptance of this License Agreement including any Documentation and Updates.
1.14. “Subscription” means the license granted by ApexRMS to Customer to use the Professional Version in accordance with the terms of this Agreement and the applicable Order Form, for the Subscription Term specified in the applicable Order Form.
1.15. “Subscription Start Date” means the date on which a Subscription begins as specified in the Order Form.
1.16. “Subscription Term” means the period of time that Customer is licensed by ApexRMS to use the Software (including the Documentation) as specified in the applicable Order Form.
1.17. “Update” means any subsequent release of the Software that ApexRMS makes generally commercially available to its customers that have a current Support Services contract with ApexRMS.
1.18. “User” means an individual who is authorized by Customer to use the Software, to whom Customer has supplied a user identification and password and who is bound by enforceable terms at least as protective of the Software and ApexRMS Confidential Information as the terms contained herein. Users include, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
- GRANT OF LICENSE.
- License. Subject to the terms and conditions of this License Agreement and Customer’s payment of the applicable License Fees, ApexRMS grants to You a limited, non-exclusive, non-transferable, non-sublicensable license during the Subscription Term to (a) install and use one copy of the Software, and to permit your Users to use the Software on up to five devices, and (b) use the Documentation as reasonably necessary to support the licensed use of the Software during the Subscription Term, in each case, subject to You being in compliance at all times with this License Agreement. You may make one (1) copy of the Software for back-up purposes only. All copies shall include all trademarks, copyright notices, restricted rights legends, proprietary markings and the like exactly as they appear on the copy of the Software originally provided to You. No other rights in the Software are granted to You.
- Reservation of Rights. The Software and Documentation are licensed, not sold. ApexRMS and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Software and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Software and subject to all of the provisions of this Agreement. Customer shall keep the Software and Documentation free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in this Agreement, ApexRMS reserves all rights, title and interest in and to the Software and Documentation. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.
- Limits on Concurrent Users. A User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Software. If you exceed the number of concurrent Users specified in the applicable Order Form(s), ApexRMS may work with Customer to seek to reduce Customer’s usage so that it conforms to the applicable limit. If, notwithstanding ApexRMS’ efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional Users promptly upon ApexRMS’ request, and/or pay any invoice for excess usage in accordance with the terms hereof.
- Delivery. Delivery of the Software shall be made by electronic means and such delivery shall be deemed to have been made as of the Subscription Start Date. Notwithstanding the foregoing, where the Order Form provides for physical delivery or where electronic delivery is not possible given the nature of the requirements, delivery shall be deemed to have been made upon the transfer of the Software to the shipping agent. The Software (other than Trial Versions) may transmit license-related data at the time of license activation to a license server in order to activate your Subscription and provide you with notifications, including notifications of Updates, and to protect you and ApexRMS against unlicensed or illegal use of the Software. Notwithstanding the foregoing, if you desire that license-related data not be transmitted to ApexRMS, you may elect to use the oﬀ-line activation mechanism as provided in the Software, in which case license-related data will not be transmitted. You acknowledge that the Software may include licensing technology, measures to prevent activating the Software on more than one physical or virtual computer, and other security measures designed to limit usage of the Software to that which is licensed. Such measures will not interfere with your normal and permitted operation of the Software as permitted hereunder.
- CUSTOMER OBLIGATIONS.
- Restrictions. You shall not reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the Software except to the extent that the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary. You shall not distribute, loan, lend, lease, rent, share, make available, grant a security interest in, assign, or otherwise transfer the Software. You shall not alter, adapt, modify or create any derivatives of the Software or merge all or any part of the Software with another program. You shall not use the Software for hosting for a third party or operating a service bureau or any other use involving the possession of data by a third party. You shall not use the Software on a server or make the Software available for others to use, or facilitate access to the Software for others. You shall not use the Software in any way that is contrary to applicable law.
- Confidentiality of Software. The Software, whether provided in source code or object code form, including without limitation, the specific design, structure and logic of individual programs, their interactions both internal and external, and the programming techniques employed therein are considered confidential and trade secrets of ApexRMS and/or its licensors (the “Confidential Information”), the unauthorized disclosure of which would cause irreparable harm to ApexRMS. Customer shall not use such Confidential Information except to the extent necessary to exercise the rights granted to Customer under this License Agreement. For greater certainty, Customer shall not disclose any performance, benchmarking, or feature-related information about the Software. Customer further agree not to disclose, transfer or otherwise provide to any third party any portion of the Software, Documentation or Confidential Information or know-how, except as explicitly permitted herein. Customer shall use the same degree of care and means that Customer use to protect Customer’s own information of a similar nature, and in any event, shall use reasonable efforts to prevent the disclosure of Confidential Information to any third parties. This confidentiality obligation shall continue to apply to the Confidential Information following the termination hereof, provided that the confidentiality provisions contained herein shall not apply to Confidential Information which (i) was known by Customer prior to disclosure, as evidenced by its business records; (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of the confidentiality provisions contained herein; (iii) was disclosed to Customer by a third party, provided such third party or any other party from whom such third party receives such information is not in breach of any confidentiality obligation in respect of such information; or (iv) is disclosed when such disclosure is compelled pursuant to legal, judicial, or administrative proceeding, or otherwise required by law, provided that Customer shall give all reasonable prior notice to ApexRMS to allow it to seek protective or other court orders.
- Export Law Compliance. The Software is subject to applicable Canadian, U.S. and international export laws and regulations. You must comply with all Canadian, U.S. and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users and end use.
- SOFTWARE TRIALS.
- Trials. If Customer registers for an online trial of the Software, ApexRMS will make the Professional Version available to Customer free of charge (a “Trial Version”) on a trial basis until the earlier of (a) the end of the trial period for which Customer registered to use the Professional Version, or (b) the start date of any Subscriptions ordered by Customer for the Professional Version. You may only use the Trial Version to review, demonstrate, and evaluate the Software, and the Trial Version may have limited You must stop all use at the Trial Version at the end of the free trial period. Additional trial terms and conditions may appear on a trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
- Warranty Disclaimer. DURING A TRIAL THE TRIAL VERSION OF THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTIES WHATSOEVER.
- SUPPORT SERVICES.
- Community Version. This License Agreement does not grant You the right to any Updates or enhancements of the Software or the right to receive any Support Services in respect of the Community Version. Such Updates and other Support Services, if available, may be purchased separately from ApexRMS pursuant to an Order Form for Support Services. Any such Updates or enhancements shall be considered part of the Software and shall be governed by the terms and conditions of this License Agreement.
- Professional Version. Support Services is not included in the License Fee for the Software after the first year of the Subscription Term. If Customer requires Support Services for the Software after the initial year of the Subscription Term, Customer shall enter into an Order Form for Support Services and shall pay ApexRMS an annual Support Fee for the provision, by or on behalf of ApexRMS, of Support Services to the Customer in accordance with the terms of this Section 2. Support Services are described in the applicable Order Form.
- FEE AND PAYMENT TERMS.
- Fees. You shall pay all Fees specified in each Order Form. All Fees are quoted and payable in the currency specified in the Order Form. Except as otherwise specified herein or in an Order Form, Fees are based on Subscriptions purchased and not actual usage, payment obligations are non-cancellable, Fees paid are non-refundable, and the number of Subscriptions purchased cannot be decreased during the relevant Subscription Term stated in an Order Form. Maintenance Fees are payable yearly, in advance of, and in any event no later than the anniversary date of the Order Form under which the Software was ordered by Customer. The Community Version is available without entering into an Order Form and no License Fees are payable in respect of the Community Version.
- Invoicing and Payment. Fees for Subscriptions will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, charges are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with ApexRMS.
- Overdue Charges. Any payment not received from Customer by the due date may accrue (except with respect to charges then subject to a reasonable and good faith dispute), at ApexRMS’ discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, HST, GST, sales, value-added, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If ApexRMS has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, ApexRMS will invoice Customer and Customer will pay that amount unless Customer provides ApexRMS with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, ApexRMS is solely responsible for Taxes assessable against it based on its income, property and employees.
- WARRANTIES AND DISCLAIMERS.
- Limited Warranties. ApexRMS provides no warranties, representations or conditions on the Trial Version or the Community Version. ApexRMS hereby represents and warrants that (i) the Professional Version of the Software will perform materially in accordance with the Documentation for a period of thirty (30) days following the date of the receipt of the license key for the Software by the Customer; (ii) the Professional Version of the Software, including any Updates thereto will not contain any Malicious Code at the time of delivery to Customer; (iii) it owns or otherwise has sufficient rights in the Professional Version of the Software and Documentation to grant to Customer the rights to use the Professional Versions of the Software and Documentation granted herein; and (iv) to its knowledge, the Professional Version of the Software and Documentation do not infringe any intellectual property rights of any third party. ApexRMS does not warrant, however, that the Customer’s use of the Software will be uninterrupted, that the operation of the Software will be error-free, that the Software will meet Customer’s requirements or that all errors will be corrected.
- Exclusions. The foregoing warranty is only applicable if ApexRMS receives written notice of a breach of warranty within thirty (30) days after the end of the applicable warranty period. Such notice must contain sufficient information regarding the circumstances under which the warranty breach can be observed. The warranty shall not apply to the extent that the breach is caused by misuse, negligence, accident, unauthorized modification, alteration, customization or repair, improper operation or maintenance.
- Remedies. In the event of a breach during the applicable warranty period of one or more of the warranties set forth in Section 1 above, ApexRMS shall use reasonable commercial efforts to correct such breach of the warranty. If ApexRMS is unable to remedy the breach of warranty within a reasonable time, ApexRMS shall refund the purchase price of the Software.
- Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. WITHOUT LIMITATION, APEXRMS AND ITS AFFILIATES, LICENSORS, SUBCONTRACTORS AND DISTRIBUTORS DISCLAIM ANY IMPLIED REPRESENTATIONS, IMPLIED WARRANTIES OR IMPLIED CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK OF THE USE OF THE SOFTWARE SHALL BE BORNE BY YOU. APEXRMS DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE OF ALL DEFECTS, ERRORS, OR INACCURACIES.
- INDEMNIFICATION BY APEXRMS.
- Infringement Indemnity. Subject to this Agreement, ApexRMS shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the Professional Version o the Software and/or Documentation as contemplated hereunder infringes the intellectual property rights of a third party (each an “Infringement Claim”); provided, that Customer (a) promptly gives written notice of the Infringement Claim to ApexRMS; (b) gives ApexRMS sole control of the defense and settlement of the Infringement Claim (provided that ApexRMS may not settle or defend any Infringement Claim unless it unconditionally releases Customer of all liability); and (c) provides to ApexRMS, at ApexRMS’ cost, all reasonable assistance and information.
- Other Remedies. If (a) ApexRMS becomes aware of an actual or potential Infringement Claim, or (b) Customer provides ApexRMS with notice of an actual or potential Infringement Claim, ApexRMS may (or in the case of an injunction against Customer, shall), at ApexRMS’ sole option and determination: (i) procure for Customer the right to continue to use the Professional Version of the Software; or (ii) replace or modify the Professional Version of the Software with equivalent or better software so that Customer’s use is no longer infringing; or (iii) if (i) and (ii) are not commercially reasonable, as determined by ApexRMS in its sole discretion, terminate the Subscriptions for the Professional Version of the Software and (A) in the case of Subscriptions, refund to Customer that portion of any prepaid License Fee that is applicable to the period following the termination of the Subscription.
- Exclusions. The indemnity in Section 1 does not extend to (a) any Infringement Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Software furnished by ApexRMS with other products, software or services not provided or approved by ApexRMS, other than Software designed by ApexRMS with certain commercial hardware or other commercially available software, if such infringement would have been avoided but for such combination; (b) any Infringement Claim related to or in connection with any modification of the Software by anyone other than ApexRMS if such infringement would have been avoided but for such modification; (c) any Infringement Claim in respect of any version of the Software other than the most current version; or (d) any use, distribution, sublicensing or exercise of any other right outside the scope of the licenses or rights granted in this Agreement.
- Sole Remedies. THIS SECTION 8 CONTAINS ApexRMS’ ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIMS.
- CUSTOMER INDEMNITY.
- YOU HEREBY AGREE TO INDEMNIFY, HOLD HARMLESS, AND DEFEND (AT APEXRMS’ REQUEST) APEXRMS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, AFFILIATES, SUBCONTRACTORS, CUSTOMERS, RESELLERS AND DISTRIBUTORS FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, COSTS, EXPENSES AND OTHER AMOUNTS (INCLUDING REASONABLE LEGAL FEES) THAT ARISE OR RESULT, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE SOFTWARE.
- THE DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION CONSTITUTE AN ESSENTIAL PART OF THIS LICENSE AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION, NEITHER APEXRMS NOR ANY OF ITS LICENSORS WOULD GRANT THE RIGHTS GRANTED IN THIS LICENSE AGREEMENT.
- LIMITATION OF LIABILITY.
- IN NO EVENT SHALL APEXRMS OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS, RESELLERS OR DISTRIBUTORS HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING IN CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF APEXRMS (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS, RESELLERS OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE.
- IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF APEXRMS (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS, RESELLERS AND DISTRIBUTORS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS LICENSE AGREEMENT, RELATED TO THE SOFTWARE, OR RELATED TO ANY SERVICES PROVIDED TO YOU BY APEXRMS (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS, RESELLERS AND DISTRIBUTORS) EXCEED THE LICENSE FEES PAID BY YOU FOR THE SOFTWARE IN THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE CLAIM, IF ANY. APEXRMS (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS, RESELLERS AND DISTRIBUTORS) SHALL NOT BE RESPONSIBLE FOR CLAIMS BY A THIRD PARTY.
- Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, SECTIONS 1 AND 10.2 DO NOT APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.
- THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU.
- TERM AND TERMINATION.
- Community Version. This License Agreement shall continue for as long as You use the Community Version, however, it will terminate, without notice from ApexRMS, if You fail to comply with any of its terms or conditions. You must, upon termination, destroy all copies of the Software. You may terminate this License Agreement by destroying all copies of the Software under Your control and notifying ApexRMS of such destruction. ApexRMS may terminate this License Agreement for convenience and without cause on notice to You. In addition to this Section, the Sections entitled Definitions, Disclaimer of Warranties, Limitation of Liability and Indemnification, Title and Miscellaneous shall continue in force even after any termination of this License Agreement. You acknowledge that termination and/or monetary damages may not be sufficient remedy if You breach this License Agreement and that ApexRMS will be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of a breach.
- Professional Version. Subscriptions commence on the earlier of the Subscription Start Date specified in the relevant Order Form and continue for the Subscription Term specified therein unless terminated earlier as provide for in this Agreement. Unless otherwise agreed upon in the applicable Order Form, Subscriptions shall automatically renew for additional periods of one (1) year at the list price then in effect at the time of renewal unless Customer gives ApexRMS written notice of non-renewal at least sixty (60) days prior o the end of the applicable Subscription Term. Upon termination, You must cease all use of the Software and destroy all copies of the Software.
- Termination for Material Breach.
- A party may terminate this Agreement or a Subscription for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the bene-fit of creditors.
- If a Subscription is terminated by Customer in accordance with this Section 3, ApexRMS will refund Customer any prepaid License Fees covering the remainder of the term of the Subscription Term after the effective date of termination. If a Subscription is terminated by ApexRMS in accordance with this Section 11.3, Customer will pay any unpaid License Fees covering the remainder of the Subscription Term for any current Subscriptions. In no event will termination relieve Customer of its obligation to pay any Fees payable to ApexRMS for the period prior to the effective date of termination.
- Records and Audit. You agree to maintain complete and accurate records of Your use of the Software and shall make such information available to ApexRMS upon request. ApexRMS or a third party selected by ApexRMS may audit Your deployment and use of the Software for compliance with this License Agreement during normal business hours and on written notice.
- Entire Agreement. This License Agreement (including all Order Forms) is the entire agreement between You and ApexRMS in respect of the Software, superseding any other agreements or discussions, oral or written. All Order Forms executed by the parties are incorporated herein by reference.
- Amendments. This License Agreement may not be amended by You except with the prior written con-sent of ApexRMS. ApexRMS may amend this License Agreement as it applies to the Community Version or Trial Versions of the Software, in whole or in part, from time to time. In the event of such an amendment by ApexRMS, the revised License Agreement will be posted to apexrms.com or syncrosim.com. If You do not agree with such amendment, you may refuse same and cancel Your use of such versions of the Software. In the event this License Agreement is amended, ApexRMS will provide You notice before the amendment comes into effect by posting the amended License Agreement, and where applicable, by sending You notice using any contact information that may be available to ApexRMS and setting out the new clause, or the amended clause and how it read formerly, as well as the date on which the amendment will come into effect. Your continued access or use of the Software after such posting constitutes Your express consent to be bound by the License Agreement, as amended.
- Assignment. You may not assign this License Agreement whether voluntarily, by operation of law, or otherwise without ApexRMS’s prior written consent. ApexRMS may assign this License Agreement at any time without Your consent and without notice. Upon any such assignment, ApexRMS shall be fully released from its obligations hereunder and the assignee shall assume the rights and obligations of ApexRMS as if the assignee were an original party to this License Agreement.
- Modification of Software. ApexRMS may modify the Software with or without notice to You.
- No Implied Waiver. The failure of a party to claim a breach of any term of this License Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term.
- Severability. If any provision of this License Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this License Agreement and such remaining provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances.
- Governing Law. This License Agreement shall be governed by the laws in force in the Province of Ontario, Canada and You consent and agree that the courts in the Province of Ontario, in Ottawa, Canada, shall have exclusive jurisdiction over any legal action or proceeding arising out of or relating to this License Agreement, and You agree that You will pay to ApexRMS all legal costs and disbursements incurred by ApexRMS in enforcing this License Agreement. Notwithstanding the foregoing, nothing in this License Agreement shall prevent ApexRMS from seeking injunctive relief from, or bringing a claim or enforcing a judgment in, a court of competent jurisdiction within or outside of Ontario. No choice of laws rules of any jurisdiction shall apply to this License Agreement. You waive all rights that You may have or that may hereafter arise to contest the jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods to this License Agreement is expressly excluded.
- Notice. ApexRMS may give notice by means of a general notice on apexrms.com or syncrosim.com, electronic mail to Your email address (if any), or by written communication sent to Your address. You may give notice to ApexRMS by written communication to Apex Resource Management Solutions Ltd., 7 Bayview Station Road, Ottawa, ON, Canada, K1Y 2C5.
- Third Party Software. The Software includes or is provided with certain third party software products (“Third Party Software”) set out at https://syncrosim.com/desktop-third-party. All Third Party Software is subject to end user license agreements and/or other license terms and conditions specific to each third party software supplier, as such agreements or terms may be amended from time to time (the “Third Party License Terms”). By using any Third Party Software, You agree to be bound by the applicable Third Party License Terms, as such terms may be amended from time to time.
- Counterparts and Facsimile Execution and Delivery. Order Forms may be signed electronically, including through DocuSign and similar applications. Each Order Form may be signed in any number of counterparts (including counterparts by scanned or electronic signature) and each counterpart will be deemed an original; taken together, all counterparts will be deemed to constitute one and the same instrument. Delivery of a printed counterpart (whether or not the counterpart was signed electronically) or electronic delivery (including by email transmission or transmission over an electronic signature platform) of an executed counterpart of this Agreement are each as valid, enforceable and binding as if the signatures were upon the same instrument and delivered in person.