Last Updated Date: November 6, 2015
IMPORTANT - READ CAREFULLY: Side Effects Software Inc. or its
subsidiary (as applicable, "Side Effects") licenses this software and
all upgrades and related materials (collectively, the "Software"),
excluding any open source software that is distributed with the Software,
subject to the terms and conditions of this Agreement. BY selecting "Accept", OR BY DOWNLOADING,
INSTALLING OR USING THE SOFTWARE, all of the terms and conditions contained in
this Agreement become legally binding on you as an individual or ON the
organization that you represent.
IF YOU THE INDIVIDUAL (A) do not agree to the terms and conditions
of this Agreement, OR (b) are not authorized to DOWNLOAD or install the
Software or to agree to be bound by this Agreement on behalf of your
Organization, you are required to select "Do Not Accept", IN WHICH CASE YOU ARE
NOT PERMITTED TO download, INSTALL OR USE THE SOFTWARE.
NOTE: The terms and
conditions of this Agreement were last updated, and are effective as of, the
"Last Updated Date" indicated above. Any downloading, installation or Use of
the Software or an earlier version of the Software that was licensed prior to
such date is governed by prior terms and conditions, which differ from those
set out in this Agreement.
Formation of Legally Binding Contract. A legally binding contract is immediately formed upon your
acceptance of this Agreement. The licensee who is bound by this Agreement ("Licensee")
is: (i) the individual accepting this Agreement, if the individual is licensing
the Software for his or her personal use or use as a sole proprietor; or (ii)
the corporation, institution, partnership, organization or other entity ("Organization")
on whose behalf the individual accepting this Agreement is acting. Where a
Transaction Confirmation is provided to Licensee, Licensee's name will be
confirmed in the Transaction Confirmation. Where no Transaction Confirmation
is provided to Licensee and Licensee obtains an Entitlement(s) or License(s) through
the online process, Licensee's name will be the name provided as part of the
online process or, where no name is provided, the name associated with the
email address provided or used as part of the online process. The Entitlement(s) and License(s) issued to Licensee will be
associated with such name. Licensee represents that the name provided to Side
Effects, if any, is its full and correct legal name.
Application and Priority of Terms. The terms and conditions of this Agreement apply regardless of,
and take priority over, any terms and conditions applicable to Licensee's
software or, subject to Section 3.10, any third party software which may be
used in conjunction with the Software.
Subsequent Licensing; Upgrades. Subsequent licensing of the Software may be subject to updated
terms and conditions that differ from those set out in this Agreement (an "Updated
Agreement"). Side Effects may require Licensee to accept an Updated
Agreement in connection with: (i) any subsequent downloading and/or
installation of Upgrades; or (ii) the issuance of subsequent Entitlements or
Licenses to Use the Software (see Section 2.2); in which case any downloading,
installation of Use of such Upgrade (in the case of (i)), or any Use of the
Software under such Entitlements and Licenses (in the case of (ii)), will be
governed by the Updated Agreement. An Updated Agreement will be indicated by a
change to the "Last Updated Date" indicated at the top of this Agreement. If
Licensee obtains additional Entitlements and Licenses to Use the Software
without having to accept an Updated Agreement, this Agreement will continue to
apply to Licensee's Use of the Software under such Entitlements and Licenses.
Communication of Usage Data. Licensee acknowledges that the Software may communicate to Side
Effects certain technical, non-personal information concerning Licensee's
Licenses and Use of the Software. Licensee hereby consents to such
Information Provided by Licensee. Licensee represents, warrants and covenants that any information
provided by Licensee to Side Effects concerning Licensee's identity, contact
information, Authorized Users, revenue, applicable project or otherwise is, and
will continuously be, true and accurate and not misleading. Licensee agrees to
notify Side Effects of any changes in such information.
Section 12 sets out certain
defined terms used in this Agreement.
RIGHT TO USE
Grant of Rights. Subject to Licensee's payment of the applicable fees and
continuous compliance with the terms and conditions of this Agreement, Side
Effects hereby grants to Licensee a limited, non-transferable, non-exclusive,
non-sublicensable right for Authorized Users to install and Use the Software:
(i) solely in object code format; (ii) solely in the applicable Territory;
(iii) solely for the Usage Purpose; and (iv) subject to the terms and
conditions of the applicable License Type (as set out in Section 3).
Entitlements and Licenses. Licensee acknowledges that Use of the Software requires: (i) the
issuance by Side Effects of an Entitlement(s); (ii) the redemption of such
Entitlement(s) by Licensee to obtain a License(s); and (iii) the installation
of such License(s) on the applicable Computer using the tools provided as part
of the Software. Side Effects will issue Licensee an Entitlement(s) based on
the applicable License Type and permitted Use. Each License permits Use of the
Software on a single Computer (in the case of a Workstation Installation) or on
a single Network Server and single Client Computer (in the case of a Network
Licensee Responsibilities. Licensee shall: (i) take appropriate action to ensure that non-Authorized
Users do not Use the Software; (ii) ensure that all Authorized Users comply
with all of the terms and conditions of this Agreement, including the
restrictions set out in Section 4.1; (iii) be solely responsible for any
digital assets or other content that is uploaded to the Software by Authorized
Users, including compliance with any restrictions imposed by the author of the
content and any violations of intellectual property rights; (iv) be solely
responsible for the accuracy, integrity, legality and appropriateness of all
content created by Authorized Users using the Software; and (v) Use the
Software in compliance with all applicable laws, rules and regulations
(including those relating to export, homeland security, anti-terrorism, data
protection and privacy) and any documentation included with the Software.
Licensee shall be responsible for any breach of this Agreement by Authorized
Users and any installation or Use of the Software by persons other than
Authorized Users utilizing Licenses issued to Licensee.
Licensee shall immediately notify Side Effects of any unauthorized installation
or Use of the Software.
LICENSE TYPES AND SCOPE OF USE
The Software is provided to Licensee subject to specific terms and conditions
that further define the scope of Licensee's permitted installation of Licenses
and Use of the Software based on the type of license granted ("License Type").
The License Types, and the terms and conditions applicable to each License Type,
are set out in Appendix A to this Agreement. Licensee must not, and must not
attempt to, install any License(s) or Use the Software outside of the scope of
the License Type that applies to the License(s) issued to Licensee. Any actual or attempted installation of Licenses or Use of the
Software outside of the scope of the applicable License Type is a breach of
this Agreement and an infringement of the rights of Side Effects.
Additional Limitations and Restrictions. For greater certainty, the limitations and restrictions of the
applicable License Type are in addition to all other limitations and
restrictions under this Agreement, including those set out in Section 2 and Section 4.
Network Installation. Certain of the License Types provide for Network Installation.
"Network Installation" means that each of the Licenses issued
to Licensee may be installed on one (1) Computer acting as a license server
(the "License Server") that can be accessed by other Computers acting as
clients ("Client Computers") through a local area network connection or
through a VPN connection, provided that: (i) the VPN connection is secure; (ii)
each Client Computer is within the Territory; and (iii) the Software may only
be Used on the Client Computers accessing the License Server. The number of
Client Computers accessing the Licenses on the License Server(s) and on which
the Software is being Used concurrently shall not exceed the number of Licenses
issued. For example, if Licensee has been issued ten (10) Local Access
Licenses, each of the ten (10) Licenses may be installed on a License Server,
and the Software may be Used on a maximum of ten (10) Client Computers at any
given time. For certainty, each of the Licenses issued to Licensee does not
have to be installed on the same License Server, but any single License cannot
be installed on more than one License Server.
Workstation Installation. Certain of the License Types provide for Workstation
Installation. "Workstation Installation" means that the License may be
installed on one (1) dedicated Computer and the Software may only be Used on
that Computer. Unless otherwise expressly provided in Appendix A, the License
cannot subsequently be relocated (i.e. installed on a different Computer).
The rights granted under this Agreement provide for Use of the Software in the
applicable Territory and certain of the License Types may provide for Use of
the Software only at a particular location. Authorized Users will be
considered to be Using the Software in the Territory (or at a particular
location) only if the individual is physically located within the Territory (or
at the particular location) at the time he or she is Using the Software.
Use of Cloud Services. For certainty, notwithstanding anything else in this Agreement,
Licensee may only install the Software, or have a third party install the
Software for Licensee, for use with a Cloud Service if the License Type that
applies to the Licenses issued to Licensee is a Global Access License and only
for non-interactive processing. Otherwise, Licensee is not permitted to
install or have installed or Use the Software on a Cloud Service regardless of
the location of the Computers utilized by the Cloud Service. For certainty,
non-interactive processing includes processing using Houdini Mantra and Houdini
Batch, but excludes processing using Houdini or Houdini FX. Nothing in this
Section shall be taken to limit any restriction set out in Article 3 or otherwise in this Agreement.
Non-Concurrent Use. For all License Types, only one individual may Use the Software
interactively (i.e. operating the Software through its graphical user
interface) on a Computer (including, for certainty, a Client Computer or a
dedicated Computer) at any given time. Without limiting the foregoing in this
Section, where the Software is being Used interactively on a Client Computer or
a dedicated Computer by an individual, a second individual may not Use the Software
on that same dedicated Computer or Client Computer indirectly through a
separate Computer, terminal or monitor.
Limits on Number of Licenses. Side Effects may limit the number of Licenses of a particular
License Type available to any particular Licensee, alone or together with its
related individuals and Affiliates.
Digital assets that are authored Using the Software can be uploaded to and
downloaded from the website maintained by the Side Effects affiliate, Orbolt
Inc., at www.orbolt.com (the "Orbolt Website"), pursuant to the Orbolt
Inc. Terms and Conditions of Website Use. Notwithstanding the prohibitions on
Commercial Use under the Non-Commercial Licenses, the Software may be Used
under the Non-Commercial Licenses (as well as under the Commercial Licenses)
for the purpose of authoring digital assets for upload to the Orbolt Website.
Any other Commercial Use of the Software under a Non-Commercial License is
strictly prohibited. Any digital asset that is downloaded from the Orbolt
Website may be further developed subject to: (i) the terms of the applicable
License Type under which the digital asset was downloaded; and (ii) any
restrictions imposed by the author of the downloaded digital asset or by the
License Type under which the digital asset was created.
Open Source Software. The Software may be accompanied by certain open source software
(in source code and executable forms, as applicable) (the "Open Source
Software") that works with the Software. The Open Source Software forms,
and is distributed as, a separate and independent software program from the
Software (and the Software is not a modification of, or a work based on, the
Open Source Software), even though the Open Source Software may have been
aggregated or packaged with the Software for purposes of distribution. The Open
Source Software is distributed under and subject to the terms and conditions of
the applicable open source licenses and notices set out at http://www.sidefx.com/docs/houdini/licenses/ (the "Open
Source Licenses"). Licensee hereby agrees to the terms and conditions of
the Open Source Licenses as they relate to the applicable Open Source Software.
RESTRICTIONS ON USE
Restrictions on Use of Software. Subject to the terms and conditions for the applicable License Type,
Licensee agrees that it will not, and will not permit any third party to,
directly or indirectly: (i) copy the Software (except that Licensee may
download and install the Software and make one (1) copy of the Software solely
for backup purposes) or create derivative works based on the Software; (ii)
assign, transfer, lease, rent, sublicense, distribute or otherwise make
available the Software, any Entitlement, any License or any right granted under
this Agreement, in whole or in part, to any other Person, including on a
timesharing, software-as-a-service or other similar basis (except that, with
certain License Types, Licensee may permit third party Authorized Users to Use
the Software to create content for Licensee); (iii) permit any third party, other
than an Authorized User, to redeem or un-redeem Entitlements, install Licenses
or Use the Software; (iv) share any user ids or passwords with anyone other
than Authorized Users; (v) Use the Software to provide any service bureau
services or any services on a similar basis; (vi) except as provided under
Section 3.9, Use the
Software under a Non-Commercial License for Commercial purposes, or receive any
form of compensation for work product created or work performed Using the Software
under a Non-Commercial License; (vii) reverse engineer, decompile, disassemble,
or otherwise attempt to discover the source code of any portion of the
Software; (viii) disassemble, reverse engineer or use the file format of any
file generated by the Software for purposes of by-passing any restrictions or
requirements of the Software; (ix) attempt to tamper with, alter, disable,
hinder, by-pass, override, or circumvent any security, reliability, integrity,
accounting or other mechanism, restriction or requirement of the Software,
including any Entitlement or License or any other mechanism that permits,
monitors or limits installation of Licenses or Use of the Software to the
applicable scope in accordance with this Agreement; (x) convert the file format
of any file generated by the Software when licensed under a Non-Commercial
License to a file format generated by the Software when licensed under a
Commercial License; (xi) attempt to tamper with or alter (or with respect to
Non-Commercial Licenses, hinder) the usage information conveyed by the Software
to Side Effects; (xii) modify or attempt to modify the Software; (xiii) install
or Use the Software in any way that would subject the Software, in whole in or
in part, to governmental regulation that would not have otherwise applied but
for such installation or Use; (xiv) remove, obscure or alter any copyright,
trade-mark, patent or proprietary notice affixed to the media or packaging of
the Software or displayed by or in the Software; (xv) access or attempt to
access Side Effects' network, databases, or systems (other than to download the
Software); or (xvi) perform load tests, network scans, penetration tests,
ethical hacks or any other security auditing procedures on the Side Effects
Further Restrictions on Use of Software. Licensee agrees that it will not, and will not permit any third
party to, directly or indirectly: (i) Use the Software to conduct any
competitive analysis of or with the Software; (ii) access the Software in order
to compete or build a competitive product or service, or impair the market for
the Software or any part thereof; or (iii) copy any features, functions,
graphics or other component of the Software.
Restrictions on Open Source Software. Licensee's use of the Open Source Software is governed by the Open
Source Licenses, as applicable.
OWNERSHIP AND RESERVATION OF RIGHTS
Ownership of Software. The Software is not sold; it is licensed to Licensee under the
terms and conditions of this Agreement. Side Effects and its licensors are the owners of the Software,
including all intellectual property rights (including trade secrets rights)
relating thereto. No title to the Software or such rights is transferred to
Licensee by this Agreement. All rights not
expressly granted pursuant to this Agreement are reserved by Side Effects.
Side Effects shall own, and Licensee shall not have any right, title or
interest in, any enhancements or other modifications to the Software created
based on any suggestions, enhancement requests, recommendations or other
feedback provided by or on behalf of Licensee or Authorized Users.
fees AND PAYMENT
Fees. Fees are based upon, among other things: (i) the applicable License
Type; (ii) the characteristics of Licensee; and (iii) the number of authorized
Licenses, whether or not the Licenses are used. All
fees are payable in full, without deduction or offset, upon purchase of the
Entitlements or Licenses unless otherwise agreed by the parties, unless Side
Effects agrees to invoice Licensee, in which case the applicable fees are
payable within the period set out in the invoice (and if no period is set out
in the invoice, within thirty (30) days of the date on which Licensee receives
the invoice). All fees are non-cancelable and
non-refundable. Side Effects may suspend Use of the Software, without
liability to Side Effects, in the event that any amounts payable by Licensee
are past due or Licensee is otherwise in breach of this Agreement. Entitlements and Licenses for certain
License Types may be provided free of charge.
Indie Licenses. The pricing applicable to Indie Licenses
is only available to those individuals or Organizations (the "Indie User")
where: (i) such Indie User and its Affiliates and related individuals
collectively have in the current calendar year, or had in the most recently
completed calendar year, directly or indirectly, aggregate gross revenues from
all sources less than US$100,000; and (ii) in the case of an Indie User that is
using the Software to create content for a third party that will use such
content in connection with a Commercial activity, such third party and its
Affiliates and related individuals collectively have in the current calendar
year, or had in the most recently completed calendar year, directly or indirectly,
aggregate gross revenues from all sources less than US$100,000. If Licensee is
taking advantage of the pricing applicable to Indie Licenses, Licensee
represents and warrants that it satisfies the criteria set out in this Section 6.2.
Taxes. All fees are exclusive of any Taxes. If Side
Effects has a legal obligation to pay or collect Taxes, the appropriate amount
shall be invoiced to and paid by Licensee, unless Licensee provides Side
Effects with an acceptable tax exemption certificate issued by the appropriate
warranties and Limitation of liability
Limited Warranty. Side Effects warrants that the Software will perform
substantially in accordance with the applicable Side Effects user documentation
(excluding any errors in the documentation, as determined by Side Effects in
good faith). Side Effects' entire responsibility and obligation, and
Licensee's exclusive remedy, for any breach of the foregoing warranty shall be
for Side Effects to use commercially reasonable efforts to cause the Software
to comply with such warranty.
Warranty Disclaimer. EXCEPT AS PROVIDED IN SECTION 7.1, THE SOFTWARE IS PROVIDED "AS IS"
WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE IN LAW OR EQUITY, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF
TITLE, NON-INFRINGEMENT, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE
OR THOSE ARISING OTHERWISE FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF
WHICH ARE SPECIFICALLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
WITHOUT LIMITING THE FOREGOING, SIDE EFFECTS DOES NOT WARRANT THAT: (i) THE
SOFTWARE WILL MEET LICENSEE'S NEEDS OR REQUIREMENTS; ii) THE SOFTWARE WILL RUN
WITHOUT INTERRUPTION OR BE ERROR FREE; (iii) THE SOFTWARE IS IMPENETRABLE OR
OTHERWISE MEETS ANY SECURITY STANDARDS; OR (iv) THE FUNCTIONS CONTAINED IN THE
SOFTWARE WILL OPERATE IN ALL COMBINATIONS WHICH MAY BE SELECTED FOR USE BY
LICENSEE. FOR PURPOSES OF THIS SECTION 7.2 (BUT NOT FOR PURPOSES OF SECTION 7.1), REFERENCES TO SOFTWARE INCLUDE THE OPEN
SOURCE SOFTWARE. SIDE EFFECTS MAKES NO REPRESENTATIONS
OR WARRANTIES, AND THERE ARE NO CONDITIONS, REGARDING THE OPEN SOURCE SOFTWARE.
Limitation on Types of Recoverable
Damages. SIDE EFFECTS WILL ONLY BE LIABLE FOR
DIRECT DAMAGES, SUBJECT TO SECTION 7.4. IN NO EVENT WILL SIDE EFFECTS BE
LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST OR DAMAGED
DATA, OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES
OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SIDE EFFECTS IS INFORMED
OR OTHERWISE HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH
DAMAGES WERE FORESEEABLE.
Monetary Cap on Damages. LICENSEE AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF SIDE
EFFECTS AND ITS AFFILIATES,
AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES
FOR ALL CLAIMS UNDER ANY AND ALL CIRCUMSTANCES RELATING TO THE SOFTWARE UNDER
ALL THEORIES OF LIABILITY WILL BE LIMITED TO: (I) WITH RESPECT TO SIDE EFFECTS'
INDEMNITY OBLIGATION UNDER SECTION 8, THE FEES PAID TO SIDE EFFECTS BY LICENSEE
IN RESPECT OF THE INFRINGING SOFTWARE IN THE TWELVE (12) MONTH PERIOD PRECEDING
THE CLAIM IN RESPECT OF SUCH LIABILITY; AND (II) IN ALL OTHER INSTANCES, THE
FEES PAID TO SIDE EFFECTS BY LICENSEE IN RESPECT OF THE APPLICABLE SOFTWARE IN
THE THREE (3) MONTH PERIOD PRECEDING THE CLAIM IN RESPECT OF SUCH LIABILITY.
Essential Terms. The disclaimer of warranties and the limitation of liability in
this Section 7 constitute an essential part of this
Agreement. A fundamental breach or breach of a fundamental term of this
Agreement by Side Effects shall not limit the intended effect of Section 7 or any other provision of this Agreement
which is intended to limit Side Effects' liability. Licensee acknowledges
that, but for the disclaimer of warranties and limitation of liability, Side
Effects would not enter into this Agreement.
INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY
Subject to Section 7, if
any claim based upon an alleged direct infringement of a Canadian or American
copyright or trade secret is asserted against Licensee by a third party (other
than an Affiliate of Licensee)
by virtue of its Use of the Software in accordance with this Agreement, Side
Effects will indemnify Licensee solely for direct damages (which, for greater
certainty, excludes any accounting of profits) awarded to such third party and
which the Licensee has been ordered to pay as a result of such claim, provided
that Side Effects: (i) receives prompt written notice of such claim; (ii) has
the sole and exclusive right, if it chooses, to control and direct the
investigation and the defense or settlement of such claim; and (iii) receives
the reasonable cooperation and assistance of Licensee as requested by Side
Effects, at Side Effects' expense.
Side Effects shall have no obligation or liability under Section 8.1 if the infringement relates to: (i) Use
of the Software other than as expressly authorized under this Agreement; (ii)
the combination, merger or interface of the Software with other software by
Licensee or a third party; or (iii) compliance with any Licensee instructions
or requests. Side Effects shall also have no obligation or liability under
Section 8.1 in connection with
any software or other technology not claimed to be owned by Side Effects,
including without limitation, the Open Source Software and any materials
Side Effects Options. If the Software infringes, or in the reasonable determination of
Side Effects is likely to infringe, any third party's intellectual property
rights, Side Effects may, at its option, either: (i) procure for Licensee the
right to continue Using the Software or replace or modify the Software (without
loss of functionality) so that it becomes non-infringing; or (ii) terminate
this Agreement and refund the license fee paid by Licensee less a reasonable
amount for any value received by Licensee.
Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE SIDE EFFECTS' ENTIRE LIABILITY AND
OBLIGATIONS, AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY ACTUAL
OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
Term and Termination
Licensee's right to Use the Software pursuant to any given License shall
terminate at the end of the term for the License Type associated with such
License, as such term is set out in Appendix A to this Agreement.
Termination by Licensee for Convenience. Subject to Section 6.1, Licensee may terminate this Agreement
at any time by providing Side Effects with written notice of same and complying
with Section 9.4.
Termination by Side Effects. Side Effects may terminate this Agreement, and therefore the
right granted under Section 2.1, upon notice to Licensee: (i) if
Licensee breaches any of the terms and conditions of this Agreement and, if
curable, fails to cure such breach to the satisfaction of Side Effects within
fifteen (15) days of Side Effects notifying Licensee of the breach; (ii) if Licensee
breaches any of its payment obligations under this Agreement and fails to make
full payment within ten (10) days of Side Effects notifying Licensee of such
breach; (iii) Licensee undergoes a Change of Control without the prior written
consent of Side Effects (which consent may be withheld by Side Effects in its
sole and absolute discretion); (iv) Licensee commits
any act of bankruptcy, becomes insolvent or admits its insolvency (as defined
or provided for in any applicable statute); (v) any proceeding, voluntary or
involuntary, is commenced respecting Licensee pursuant to any statute relating
to bankruptcy, insolvency, reorganization of debts, liquidation, winding up or
dissolution, including any proceedings under the Bankruptcy and Insolvency
Act, the Companies' Creditors Arrangement Act or the Winding-Up
and Restructuring Act; (vi) Licensee passes any resolution for its
liquidation, winding up or dissolution; or (vii) Licensee ceases to carry on
business in the ordinary course.
Licensee Obligations Upon Termination. Upon receipt by Licensee of written notice of termination from
Side Effects, or termination by Licensee, Licensee shall immediately: (i)
unredeem all Entitlements (i.e. return all Licenses) using the tools provided
as part of the Software; (ii) cease Using the Software; (iii) permanently
delete all installed and back-up copies of the Software; and (iv) within five
(5) days after the date of such termination, provide Side Effects with a
written confirmation that Licensee has complied with all of the foregoing.
The provisions of Sections 2.3 (excluding part (v)), 3.10, 4 (without limiting the intended effect of
Section 9.4), 5, 6, 7.3, 7.4, 7.5, 9.4, 9.5, 10, 11 (excluding 11.11) and 12 shall survive termination of this
CERTIFICATION AND INSPECTION
Within ten (10) days of a request by Side Effects, a Certification Authority of
Licensee shall, after making due inquiry, certify in writing to Side Effects,
as applicable: (i) that Licensee (and in the case of a Global Access License,
each applicable Licensee Affiliate and third party Authorized User) is, and has
continuously been, in full compliance with the terms and conditions of this
Agreement, including all applicable restrictions and limitations on
installation and Use of the Software; or (ii) the extent to which Licensee (or in
the case of a Global Access License, any applicable Licensee Affiliate or
third party Authorized User) is not, or has not been, in full compliance with
the terms and conditions of this Agreement, including all applicable
restrictions and limitations on the installation of Licenses and Use of the
Software. Licensee shall provide such supporting evidencing as Side Effects
may reasonably request. "Certification Authority" means: (a) Licensee,
where Licensee is an individual; or (b) a senior officer, signing authority or
other senior official of Licensee, where Licensee is an Organization. For certainty, failure to provide the certification as required by
this Section is a material breach of this Agreement that entitles Side Effects
to terminate this Agreement and to any other remedies that may be available to
Side Effects at law or in equity.
Side Effects or its authorized representative may at any time after written
notice to Licensee, electronically or otherwise, reasonably inspect Licensee's
(and in the case of a Global Access License, each applicable Licensee
Affiliate's and third party Authorized User's) records, systems and facilities
in order to ensure compliance with this Agreement. Licensee will provide (and
in the case of a Global Access License, ensure that each applicable Licensee
Affiliate and third party Authorized User provides) full cooperation in
connection with any such inspection, including the provision of such additional
documentation and information as Side Effects may reasonably
request. Licensee shall ensure that the agreement
between Licensee and each applicable Licensee Affiliate and third party
Authorized User includes the right for Side Effects to perform such
If as a result of a certification pursuant to Section 10.1, or an inspection pursuant to Section 10.2, Side Effects determines that Licensee's
(or in the case of a Global Access License, any applicable Licensee Affiliate's
or third party Authorized User's) installation of Licenses or Use of the
Software is not, or has not been, in conformity with this Agreement, Licensee
shall promptly: (i) obtain the applicable Entitlement(s) or License(s) from
Side Effects required for such installation or Use; (ii) pay the applicable
fees in respect of such License(s) for prior and future Use; and (iii) pay all
reasonable costs and expenses incurred by Side Effects in respect of the
certification or inspection, as applicable.
Relationship of Parties. In giving effect to this Agreement, neither party will be or be
deemed an agent of the other for any purpose and their relationship in law to
the other will be that of independent contractors. Nothing in this Agreement
will constitute a partnership in law or a joint venture between the parties.
Neither party will have the right to enter into contracts, pledge the credit of
or incur expenses on behalf of the other.
Any waiver of any terms or conditions of this Agreement will be effective only
if in writing and signed by the party granting such waiver. Such waiver shall
be effective only in the specific instance and for the specific purpose for
which it has been given and shall not be deemed or constitute a waiver of any
other provisions (whether or not similar) nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided. The failure of either
party to exercise, and any delay in exercising, any of its rights hereunder, in
whole or in part, shall not constitute or be deemed a waiver or forfeiture of
such rights, neither in the specific instance nor on a continuing basis. No
single or partial exercise of any such right shall preclude any other or
further exercise of such right or the exercise of any other right.
If for any reason a court of competent jurisdiction finds any terms or
conditions of this Agreement, or portion thereof, to be unenforceable, the
remainder of this Agreement will continue in full force and effect.
Licensee shall not assign or transfer this Agreement or any of its rights or
obligations hereunder (whether in connection with or as a result of any
consolidation, arrangement, reorganization, amalgamation, acquisition, merger,
sale, operation of law, or otherwise), in whole or in part, without the prior
written consent of Side Effects (which consent may be withheld by Side Effects
in its sole and absolute discretion).
Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof, and supersedes and replaces
all prior or contemporaneous understandings or agreements, written or oral,
regarding such subject matter and there are no representations, warranties,
conditions or other agreements between the parties in connection with the
subject matter hereof except as specifically set forth herein.
Binding Arbitration. Unless otherwise agreed in writing by
the parties, all disputes relating to this Agreement shall not be submitted to
the courts for resolution, but may be submitted to final and binding
arbitration by either party pursuant to the Arbitration Act, 1991
(Ontario) (the "Arbitration Act"). The arbitration shall be treated as
confidential and will be held in Toronto, Canada. The arbitral tribunal shall
be composed of one arbitrator (the "Arbitrator"). The party that wishes
to initiate the arbitration (the "Applicant") shall deliver a notice to
that effect (the "Notice to Arbitrate") to the other party, which notice
shall nominate an individual to act as the Arbitrator. Within thirty (30) days
of the date of receipt of the Notice to Arbitrate (the "Response Date")
the other party (the "Respondent") shall, by notice to the Applicant,
either signify its acceptance of the nominee or, in the alternative, propose an
alternative individual to act as the Arbitrator (the "Response"). If
the Respondent fails to provide a Response by the Response Date, the Respondent
shall be deemed to have accepted the Applicant's nominee for Arbitrator. If
the Respondent provides a Response by the Response Date suggesting an
alternative individual to act as Arbitrator, the Applicant shall within thirty
(30) days of the date of receipt of the Response, by notice to the Respondent,
signify either its acceptance or rejection of the Respondent's nominee for
Arbitrator. If the Applicant fails to provide notice by such date, the
Applicant shall be deemed to have accepted the Respondent's nominee for
Arbitrator. If the Applicant provides notice by such date signifying its
rejection of the Respondent's nominee for Arbitrator, the parties shall use
commercially reasonable efforts to cause their respective nominees to select
the Arbitrator. Any costs associated with same shall be borne equally by the parties.
If such selection does not occur within thirty (30) days of the date of the
Applicant's rejection notice, then the Applicant may apply to the Superior
Court of Justice of Ontario for the appointment of an arbitrator pursuant to
the provisions of the Arbitration Act. The costs of the application shall be
borne equally by the parties. The parties agree that they will act reasonably
and in good faith to ensure the selection of an Arbitrator who is objective,
independent and suitably qualified to deal with the dispute. Upon failure,
refusal or inability of the Arbitrator to act, his or her successor shall be
appointed in the same manner. The costs of the Arbitration shall be in the
discretion of the Arbitrator.
Governing Law and Jurisdiction for Resolving
Claims. Subject to Section 11.6, this Agreement shall be governed by the
laws of the Province of Ontario, Canada and the federal laws of Canada
applicable therein and the parties irrevocably submit to the non-exclusive
jurisdiction of the Ontario courts. The parties expressly disclaim the
application of the United Nations Convention for the International Sale of
Headings; Sections. The division of this Agreement into sections and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement. References herein to
Sections are to sections of this Agreement.
Interpretation of "including". Where the word "include", "includes" or "including" is used in
this Agreement, it means "include", "includes" or "including", in each case,
Non-Exclusive Remedies. All remedies provided for under this Agreement are non-exclusive
and are in addition, and without prejudice, to any other rights as may be
available to Side Effects, whether in law or equity. By electing to pursue a
remedy, Side Effects does not waive its right to pursue any other available
Export Compliance. Each party shall comply with the export laws and regulations of
Canada, the United States, and other applicable jurisdictions in its provision
and, in the case of Licensee, its downloading, installation and Use of, the
Software. Without limiting the foregoing: (i) each of Side Effects and
Licensee represents that it is not named on any U.S. government list of person
or entities prohibited from receiving exports; and (ii) Licensee shall not
permit any Person to Use the Software in violation of any U.S. export embargo,
prohibition, or restriction.
party may issue press releases relating to this Agreement without the other
party's prior written consent, or use in any manner the name(s), logo(s) or
trade-mark(s) of the other party without such other party's prior written
consent. Each party hereby consents to the inclusion of its name and logo by
the other party among at least three other companies in lists of customers or
vendors in accordance with the other party's standard guidelines.
The parties acknowledge that they have required this Agreement to be written in
English. Les parties aux présentes reconnaissent qu'elles ont exigé que la
présente entente soit rédigée en anglais.
notice, demand or other communication (in this Section, a "notice") required or
permitted to be given or made under this Agreement will be in writing and will
be sufficiently given or made if: (i) delivered in person during normal
business hours of the recipient on a Business Day and left with a receptionist
or other responsible employee of the recipient; (ii) except during any period
of actual or imminent interruption of postal services due to strike, lockout or
other cause, sent by registered mail; or (iii) sent by facsimile transmission
or other electronic means which produces a written record of successful
transmission, or by email if receipt is confirmed by the sender's email
system. Notices to Licensee shall be sent to the most recent address,
facsimile number or email address provided by Licensee to Side Effects and to
the attention of the contact person on file with Side Effects. Notices to Side
Effects shall be sent to Suite 1401, 123 Front Street West, Toronto, Ontario,
M5J 2M2, or (416) 504-6648 or email@example.com, to the attention of Chief
Financial Officer. Each notice sent in accordance with this Section will be
deemed to have been received: (iv) on the day it was delivered; (v) on the
seventh (7th) Business Day after it was mailed (excluding each day
on which there is any interruption of postal services due to strike, lockout or
other cause); (vi) on the same day that it was sent by facsimile transmission
or email provided that it was sent during normal business hours of the
recipient on a Business Day, otherwise, on the first Business Day thereafter.
Contact information for notice may be changed by giving notice in accordance
with this Section. "Business Day" means any day of the week except
Saturday, Sunday or any statutory or civic holiday observed in Toronto,
When used in this
Agreement, each of the following terms has the meaning given to such term
below, and grammatical variations of such terms have corresponding meanings.
"Affiliate" of a party means any Person that directly, or indirectly through one
or more intermediaries, Controls or is Controlled by such party, or is
Controlled by a Person who also Controls such party.
"Agreement" means this Side
Effects Software License Agreement, as may be amended in accordance with its
"Applicant" has the meaning
set out in Section 11.6.
"Arbitrator" has the meaning
set out in Section 11.6.
"Arbitration Act" has the
meaning set out in Section 11.6.
"Authorized Subcontractors" means third parties sub-contracted by Licensee to create content for
"Authorized Users" means: (i) in the case of all License Types other than a Global
Access License and a Project License, Licensee Personnel; and (ii) in the case
of a Global Access License and Project License (A) Licensee Personnel, and (B)
Licensee Affiliate Personnel and employees of Authorized Subcontractors,
provided that Licensee has given Side Effects notice of such Affiliates and
Authorized Subcontractors, and provided that such Licensee Affiliate Personnel
and employees of Authorized Subcontractors are Using the Software solely to
create content for Licensee.
"Certification Authority" has the meaning set out in Section 10.1.
"Change of Control" of Licensee means a change of the Person or Persons that directly
or indirectly Control Licensee.
"Client Computers" has the
meaning set out in Section 3.3.
"Cloud Service" means a third party service that provides access to a pool of
Computers for installation, hosting, processing and/or storage of software
and/or data, where such Computers are outside of the direct physical control
and/or ownership of the Person obtaining the service and where such Computers
may or may not be shared by other Persons.
"Commercial" means any
activity carried on with the intention of, or with a view to, generating
revenue or other compensation, directly or indirectly, or that actually
generates revenue or other compensation, directly or indirectly.
"Commercial License" means
any License other than a Non-Commercial License, including a License that is
any of the following License Types: Commercial Workstation License, Indie
License, Local Access License, Global Access License and Project License.
"Computer" means: (i) an
electronic device containing one or more central processing units that runs an
operating system and accepts information in digital or similar form and
manipulates the information for a specific result based on a sequence of
instructions; or (ii) a software implementation of such a device (including
virtual machines and other emulation technology); in each case that is owned,
leased, rented or borrowed by Licensee or the Authorized User.
"Control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of an entity, whether
through the ownership of voting securities, by contract or otherwise.
"Entitlement" means a string of data residing on Side Effects' systems that the
Licensee can redeem (i.e. trade in exchange for a License) or un-redeem, using
the tools provided as part of the Software.
"Indie User" has the meaning
set out in Section 6.2.
"License" means a string of data that is issued upon the redemption of an
Entitlement, or issued by Side Effects directly, and that, when installed on a
Computer, allows the Software to be Used on that Computer.
"License Server" has the
meaning set out in Section 3.3.
"License Type" has the
meaning set out in Section 3.1.
"Licensee" has the meaning
set out in Section 1.1.
"Licensee Affiliate Personnel"
means the (i) employees (including contract employees) of the applicable Licensee
Affiliate, (ii) third parties subcontracted by the applicable Licensee
Affiliate to create content for Licensee, (iii) co-op and other students
engaged by and otherwise working with the applicable Licensee Affiliate, and
(iv) interns of the applicable Licensee Affiliate.
"Licensee Personnel" means:
(i) if Licensee is an individual, that individual; or (ii) if Licensee is an
Organization (A) Licensee's employees (including contract employees), (B)
independent contractors engaged by Licensee, (C) co-op and other students
engaged by and otherwise working with or for Licensee, and (D) Licensee's
"Network Installation" has
the meaning set out in Section 3.3.
means a License that is any of the following License Types: Apprentice License,
Apprentice HD License, Education License and Evaluation License.
"Notice to Arbitrator" has
the meaning set forth in Section 11.6.
"Open Source Software" and "Open
Source Licenses" have the respective meanings set out in Section 3.10.
"Orbolt Website" has the
meaning set out in Section 3.9.
"Organization" has the
meaning set out in Section 1.1.
"Person" includes an
individual, corporation, partnership, joint venture, trust, unincorporated
organization, the Crown or any agency or instrumentality of the foregoing or
any other judicial entity recognized by law.
"Related Materials" means all
materials related to the software being installed and all Upgrades, including
documentation, user manuals, training videos, tutorials and files, provided
directly or indirectly by Side Effects, whether on-line or otherwise.
"Response" has the meaning set
out in Section 11.6.
"Response Date" has the
meaning set out in Section 11.6.
"Respondent" has the meaning
set out in Section 11.6.
"Side Effects" has the
meaning set out in the preamble to this Agreement.
"Software" has the meaning
set out in the preamble to this Agreement.
"Taxes" means any direct or indirect local, state,
provincial, federal or foreign taxes, levies, duties or similar government
charges or assessments of any nature, including sales taxes, value-added taxes
and withholding taxes, exigible on the transaction contemplated by this
"Territory" means: (a) the
country, state, province, municipality or other jurisdiction specified in the
Transaction Confirmation; (b) where no Transaction Confirmation is provided to
Licensee and Licensee obtains Entitlements(s) through the online process, the
Territory will be the province (in the case of Canada), state (in the case of
the United States) or equivalent administrative division (in the case of some
other country) that corresponds with the address confirmed as part of the
online purchase verification; (c) if no country, state, province, municipality
or other jurisdiction is specified in the Transaction Confirmation or the
online purchase verification, the Territory shall be the province (in the case
of Canada), state (in the case of the United States) or equivalent
administrative division (in the case of some other country) where Licensee
originally installed the License(s). In the case of a Global Access License,
the Territory will be the world. With respect to non-interactive Use of the
Software in the case of a Network Installation,
the Territory will be the world.
"Transaction Confirmation" means an invoice issued by Side Effects to Licensee in respect of
Licensee's licensing of the Software or, where no invoice is issued, the email,
quotation or other communication provided by Side Effects to Licensee, setting
out certain particulars in respect of the licensing of the Software to
Licensee, which may include: (i) Licensee's name and contact information; (ii)
the Software product being licensed; (iii) the applicable License Type(s); (iv)
the fees payable to Side Effects; (v) the applicable Territory; (vi) the number
of Entitlements and/or Licenses issued or to be issued; (vii) the locations
from which the Software may be Used; (viii) the applicable term(s) and/or
termination date(s); and/or (xix) any additional restrictions on Use of the
"Updated Agreement" has the
meaning set out in Section 1.3.
"Upgrades" means all updated
and/or upgraded versions of the software being installed that Side Effects
provides or makes available to Licensee from time to time.
"Usage Purpose" means: (i)
where Licensee is engaged primarily in Commercial activities, the internal
requirements of Licensee's business in the ordinary course of such business;
and (ii) where Licensee is engaged primarily in non-Commercial activities, the
internal requirements of Licensee's ordinary course activities. Notwithstanding
the forgoing, the Usage Purpose shall not in either case include the Use of the
Software by any Licensee Personnel of an Organization for any personal projects
where it is reasonably expected that revenue may be earned.
"Use", "Used" or "Using"
means: (i) to access, initiate, execute, run, display, view and operate the
Software, including to author, modify and run digital assets; and (ii) in the
case of the Related Materials only, to review and print.
"Work Station Installation"
has the meaning set out in Section 3.4.