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:

a) “ApexRMS” means Apex Resource Management Solutions Ltd.

b) “Community Edition” means the free version of the SyncroSim Software subscribed for pursuant to the Community plan on the Price List.

c) “Customer”, “You” or “Your” means either the individual obtaining or installing the SyncroSim Software, any entity on whose behalf such individual is acting, or the entity named in the applicable Order Form.

d) “Device” means any electronic device capable of processing, storing, or transmitting data, including but not limited to desktop computers, laptops, servers, mobile phones, tablets, and virtual or cloud-based computing environments, and , each virtual instance, including but not limited to containers, virtual machines, and serverless computing environments, shall be considered a separate Device.

e) “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and release notes that ApexRMS generally makes available to licensees of the SyncroSim Software, as updated from time to time.

f) “Fees” means the License Fee and any fees for professional services specified on an Order Form.

g) “Jobs” means the number of threads used to parallelize runs using the SyncroSim Software’s multiprocessing feature.

h) “License Agreement” means this ApexRMS SyncroSim Software End User License Agreement and includes all Order Forms.

i) “License Fee” means the fee charged by ApexRMS and payable by Customer for a Subscription and which is specified in the applicable Order Form.

j) “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

k) “Order Form” means an electronic form provided by ApexRMS on its website or a written document executed by ApexRMS and Customer for ordering Subscriptions and specifying matters such as the Subscription Start Date, the Subscription Term, the License Fee and professional services, if any.

l) “Price List” means the ApexRMS price list for the SyncroSim Software located at https://syncrosim.com/pricing/.

m) “SyncroSim Software” means the ApexRMS SyncroSim™ on-prem software program described in the applicable Order Form in object code form that can be downloaded after acceptance of this License Agreement, including any Documentation and Updates.

n) “Subscription” means the license granted by ApexRMS to Customer to use the SyncroSim Software in accordance with the terms of this Agreement and the applicable Order Form, for the Subscription Term specified in the applicable Order Form.

o) “Subscription Start Date” means the date on which a Subscription begins as specified in the Order Form.

p) “Subscription Term” means the period of time that Customer is licensed by ApexRMS to use the SyncroSim Software (including the Documentation) as specified in the applicable Order Form.

q) “Support Fee” means the fee specified in the applicable Order Form payable by a Customer that has obtained a Subscription to the SyncroSim Software for Support and Maintenance Services for the SyncroSim Software provided by ApexRMS.

r) “Support and Maintenance Services” means the technical support and software maintenance services for the SyncroSim Software provided by ApexRMS as described in Section 5.

s) “Support and Maintenance Terms” means the terms on which ApexRMS, or an authorized support partner, provides Support and Maintenance Services to Customer, which terms are described in Section 5 hereof or otherwise agreed to in writing by ApexRMS and Customer.

t) “Update” means any subsequent release of the SyncroSim Software that ApexRMS makes generally commercially available to its customers.

u) “User” means an individual who is authorized by Customer to use the SyncroSim Software, to whom Customer has supplied a user identification and password and who is bound by enforceable terms at least as protective of the SyncroSim 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.

2. GRANT OF LICENSE.

2.1. 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 SyncroSim Software and to permit your Users, up to the maximum number specified on the Order Form (or, in the case of the Community Edition, on the Price List), and subject to the limitation in Section 2.3, to use the SyncroSim Software on up to the number of Devices and for up to the number of Jobs specified in the applicable Order Form (or, in the case of the Community Edition, on the Price List); and (b) use the Documentation as reasonably necessary to support the licensed use of the SyncroSim 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 SyncroSim 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 SyncroSim Software originally provided to You. No other rights in the SyncroSim Software are granted to You.

2.2. Reservation of Rights. The SyncroSim 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 SyncroSim Software and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the SyncroSim Software and subject to all of the provisions of this Agreement. Customer shall keep the SyncroSim 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 SyncroSim Software and Documentation. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.

2.3. Limits on Concurrent Users. A User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the SyncroSim Software. If you exceed the authorized number of concurrent Users, 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.

2.4. Delivery. Delivery of the SyncroSim 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 SyncroSim Software to the shipping agent. The SyncroSim Software 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 SyncroSim 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 SyncroSim Software, in which case license-related data will not be transmitted. You acknowledge that the SyncroSim Software may include licensing technology, measures to prevent activating the SyncroSim Software on more than one physical or virtual computer, and other security measures designed to limit usage of the SyncroSim Software to that which is licensed. Such measures will not interfere with your normal and permitted operation of the SyncroSim Software as permitted hereunder.

2.5. Third Party Software. The SyncroSim Software includes or is provided with certain third party software products (“Third Party Software”) set out at https://syncrosim.com/software-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.

3. CUSTOMER OBLIGATIONS.

3.1. Restrictions. You shall not reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the SyncroSim 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 SyncroSim Software. You shall not alter, adapt, modify or create any derivatives of the SyncroSim Software or merge all or any part of the SyncroSim Software with another program. You shall not: (a) use the SyncroSim 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; (b) make the SyncroSim Software available for others to access, use, or interact with; or (c) use the SyncroSim Software in any way that is contrary to applicable law. Any such unauthorized use constitutes a material breach of this Agreement.

3.2. Confidentiality of SyncroSim Software. The SyncroSim 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 SyncroSim Software. Customer further agree not to disclose, transfer or otherwise provide to any third party any portion of the SyncroSim 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.

3.3. Export Law Compliance. The SyncroSim 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 SyncroSim Software. These laws include restrictions on destinations, end users and end use.

4. SOFTWARE TRIALS.

4.1. Trials. If Customer registers for an online trial of the SyncroSim Software, ApexRMS will make the SyncroSim Software 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 SyncroSim Software, or (b) the start date of any Subscriptions ordered by Customer. You may only use the Trial Version to review, demonstrate, and evaluate the SyncroSim 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.

4.2. Warranty Disclaimer. DURING A TRIAL THE TRIAL VERSION OF THE SYNCROSIM SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTIES WHATSOEVER.

5. COMMUNITY EDITION.

5.1. License. This License Agreement governs Customer’s use of the Community Edition, provided that, the following sections of this License Agreement do not apply to the Community Edition: Sections 6 (Support and Maintenance), 7 (Fees and Payment Terms), 8 (Warranties and Disclaimers), and 9 (Indemnification by ApexRMS).

5.2. No Support and Maintenance. This License Agreement does not grant You the right to any Updates or enhancements of the Community Edition or the right to receive any Support Services in respect of the Community Edition. Community forum support for the Community Edition is available at: https://community.syncrosim.com/.

5.3. Warranty Disclaimer. THE COMMUNITY EDITION IS PROVIDED “AS-IS” WITHOUT ANY WARRANTIES WHATSOEVER.

5.4. Limitation of Liability. IN NO EVENT SHALL APEXRMS (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS, RESELLERS AND DISTRIBUTORS) BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LIABILITY OR DAMAGES (WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE) ARISING IN CONNECTION WITH THIS LICENSE AGREEMENT, RELATED TO THE COMMUNITY EDITION OR CUSTOMER’S USE OF THE COMMUNITY EDITION.

6. SUPPORT AND MAINTENANCE.

ApexRMS shall provide the following basic support services during the Subscription Term: (a) email support is monitored and provided from 9:00 am to 7:00 pm (ET), Monday to Friday  (excluding statutory holidays in the Province of Ontario) and emails outside of these hours will be responded to on a reasonable efforts basis; and (b) ApexRMS will use commercially reasonable efforts to respond to support enquiries within one business day. Customer will have access to Company’s technical support web site and may use the web site to submit service requests.

7. FEES AND PAYMENT TERMS.

7.1. 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, License Fees are payable in advance and are non-cancellable and non-refundable. No License Fees are payable in respect of the Community Edition.

7.2. Invoicing and Payment. License Fees 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.

7.3. 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’s 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.

7.4. 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.

8. WARRANTIES AND DISCLAIMERS.

8.1. Limited Warranties. ApexRMS provides no warranties, representations or conditions on the Trial Version or the Community Edition. ApexRMS hereby represents and warrants that (i) the SyncroSim Software will perform materially in accordance with the Documentation for a period of thirty (30) days following the Subscription Start Date for the SyncroSim Software; (ii) the SyncroSim 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 SyncroSim Software and Documentation to grant to Customer the rights to use the SyncroSim Software and Documentation granted herein; and (iv) to its knowledge, the SyncroSim Software and related Documentation do not infringe any intellectual property rights of any third party. ApexRMS does not warrant, however, that the Customer’s use of the SyncroSim Software will be uninterrupted, that the operation of the SyncroSim Software will be error-free, that the SyncroSim Software will meet Customer’s requirements or that all errors will be corrected.

8.2. 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.

8.3. Remedies. In the event of a breach during the applicable warranty period of one or more of the warranties set forth in Section 8.1 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 SyncroSim Software.

8.4. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, THE SYNCROSIM 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 SYNCROSIM SOFTWARE SHALL BE BORNE BY YOU. APEXRMS DOES NOT WARRANT THAT THE SYNCROSIM SOFTWARE WILL BE FREE OF ALL DEFECTS, ERRORS, OR INACCURACIES.

9. IP INFRIGEMENT INDEMNIFICATION.

9.1. Infringement Indemnity. Subject to this Agreement, ApexRMS shall defend Customer against any claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the SyncroSim Software (other than the Community Edition) and/or Documentation as contemplated hereunder infringes the intellectual property rights of a third party (each an “Infringement Claim”) and shall reimburse or pay on Customer’s behalf all losses, damages and costs (including reasonable legal fees and disbursements) finally awarded against Customer by a court of competent jurisdiction or agreed to in a written settlement agreement arising out of such 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.

9.2. 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 SyncroSim Software; or (ii) replace or modify the SyncroSim 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 this License Agreement and the Subscription for the SyncroSim Software and refund to Customer that portion of any prepaid License Fee that is applicable to the period following the termination of the Subscription.

9.3. Exclusions. The indemnity in Section 9.1 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 SyncroSim Software furnished by ApexRMS with other products, software or services not provided or approved by ApexRMS, other than SyncroSim 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 SyncroSim 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 SyncroSim 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.

9.4. Sole Remedies. THIS SECTION 9 CONTAINS ApexRMS’s ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIMS.

10. CUSTOMER INDEMNITY.

YOU HEREBY AGREE TO INDEMNIFY, HOLD HARMLESS, AND DEFEND (AT APEXRMS’s 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 SYNCROSIM SOFTWARE.

11. LIMITATION OF LIABILITY.

11.1. Indirect, Consequential etc. Damages. 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.

11.2. Liability Cap. 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 SYNCROSIM 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 SYNCROSIM SOFTWARE IN THE SIX (6) 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.

11.3. Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, SECTIONS 11.1 AND 11.2 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.

11.4. 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.

11.5. 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.

12. TERM AND TERMINATION.

12.1. SyncroSim Software. 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 provided for in this Agreement. Unless otherwise agreed upon in the applicable Order Form, Subscriptions shall automatically renew for additional 12 month Subscription Terms at the list price then in effect at the time of renewal, unless Customer gives ApexRMS written notice of non-renewal at least 60 days prior to the end of the applicable Subscription Term. Upon termination, You must cease all use of the SyncroSim Software and destroy all copies of the SyncroSim Software.

12.2. Community Edition. This License Agreement shall continue for as long as You use the Community Edition, 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 SyncroSim Software. You may terminate this License Agreement by destroying all copies of the SyncroSim 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.

12.3. Termination for Material Breach.

a) 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 benefit of creditors.

b) If a Subscription is terminated by Customer in accordance with this Section 12.3, ApexRMS will refund Customer any prepaid License Fees covering the remainder of the Subscription Term after the effective date of termination. If a Subscription is terminated by ApexRMS in accordance with this Section 12.3, 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.

12.4. Rights Upon Termination. 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.

12.5. Survival. Sections 1 (Definitions), 8 (Warranties and Disclaimers), 11 (Limitation of Liability), 13 (Miscellaneous) shall continue in force even after any termination of this License Agreement.

13. MISCELLANEOUS.

13.1. Records and Audit. You agree to maintain complete and accurate records of Your use of the SyncroSim 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 SyncroSim Software for compliance with this License Agreement during normal business hours and on written notice.

13.2. Entire Agreement. This License Agreement (including all Order Forms) is the entire agreement between You and ApexRMS in respect of the SyncroSim Software, superseding any other agreements or discussions, oral or written. All Order Forms executed by the parties are incorporated herein by reference.

13.3. Amendments. This License Agreement may not be amended by You except with the prior written consent of ApexRMS. ApexRMS may amend this License Agreement as it applies to the Community Edition or Trial Versions of the SyncroSim 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 SyncroSim 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 SyncroSim Software after such posting constitutes Your express consent to be bound by the License Agreement, as amended.

13.4. 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.

13.5. Modification of SyncroSim Software. ApexRMS may modify the SyncroSim Software with or without notice to You.

13.6. 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.

13.7. 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.

13.8. 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.

13.9. 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. at info@apexrms.com.

13.10. 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.