Last Updated Date: March 14, 2013

SIDE EFFECTS SOFTWARE
SOFTWARE LICENSE AGREEMENT

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”) subject to the terms and conditions of this Agreement.  BY SELECTING “I ACCEPT”, “YES”, “AGREE” OR “I AGREE” (OR BY OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AS PROVIDED BY THE INSTALLATION PROCESS FOR 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 LICENSE 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”, “I DO NOT ACCEPT”, “NO” OR “DISAGREE” (OR OTHERWISE DECLINE TO BE BOUND BY THIS AGREEMENT AS PROVIDED BY THE INSTALLATION PROCESS FOR THE SOFTWARE), IN WHICH CASE YOU ARE NOT PERMITTED TO 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 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.


  1. General
    1. A legal contract is immediately formed upon your acceptance of this Agreement. The licensee who is bound by the terms and conditions of this Agreement (“you”, “your” or “Licensee”) is: (i) the individual accepting this Agreement, if the individual is licensing the Software for his or her personal use; 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 you, your name will be as set out in the Transaction Confirmation.  Where no Transaction Confirmation is provided to you and you obtain your Entitlement(s) through the online process, your name will be the name confirmed as part of the online purchase verification.  The Entitlement(s) and License(s) issued to you will be associated with such name.  You represent that the name submitted by you to Side Effects is your full and correct legal name.
    2. The terms and conditions of this Agreement apply to all use of the Software, regardless of location, Commercial or non-Commercial usage, or financial consideration received by Side Effects in respect of the Software.
    3. The Software is not sold; it is licensed to you under the terms and conditions of this Agreement.  Copying, installing, sharing, accessing, using or otherwise dealing with the Software except as expressly permitted by this Agreement is unauthorized, constitutes a breach of this Agreement and is an infringement of the rights of Side Effects.  In addition to Side Effects’ right to terminate this Agreement, you may be liable to Side Effects for, and Side Effects retains its full rights to seek, appropriate remedies at law and in equity in respect of any such unauthorized activity, and you may be subject to criminal prosecution in respect of same.
    4. Subsequent licensing of the Software may be subject to updated terms and conditions that differ from those set out in this Agreement.  Side Effects may require you to accept such updated terms and conditions in order to install subsequent versions of the Software, including Upgrades provided pursuant to the Annual Upgrade Plan.  If you install an Upgrade without having to accept updated terms and conditions that differ from those set out in this Agreement, such Upgrade shall be governed by the terms and conditions of this Agreement, even if you do not formally re-accept this Agreement when installing such Upgrade.
    5. Licensee acknowledges that the Software may communicate to Side Effects technical, non-personal information concerning the usage of the Software and Licensee hereby consents to such communication.
    6. Section 12 sets out certain defined terms used in this Agreement.  
  2. RIGHT TO USE
    1. Subject to Licensee’s payment of the applicable fees and compliance with the terms and conditions of this Agreement, Side Effects hereby grants to Licensee a non-transferable, non-exclusive, non-sublicensable right for Licensee Personnel (and in the case of a Global Access License, Licensee Affiliate Personnel of the applicable Licensee affiliate(s)) to Use the Software (a) solely in object code format, (b) solely in the Territory, (c) solely for the Usage Purpose, (d) subject to the terms and conditions of the applicable License Type (as set out in Section 3), and (e) otherwise in accordance with the terms and conditions of this Agreement. 
    2. Licensee Personnel (and in the case of a Global Access License, Licensee Affiliate Personnel) will be considered to be Using the Software in the Territory (or from 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. 
    3. Except as set out in Section 3.5(f) (Global Access License), only Licensee Personnel may Use the Software.  For greater certainty, except as set out in Section 3.5(f) (Global Access License), nothing in this Agreement authorizes any third party, including any of your related individuals or affiliated Organizations, or any of their personnel, to Use the Software in any manner or to any extent.  Any such Use requires the prior written consent of Side Effects (which consent may be withheld by Side Effects in its sole and absolute discretion) and may be subject to additional license fees.
    4. For greater certainty, the right set out in Section 2.1 is conditioned on the continuous compliance with all terms and conditions of this Agreement.
    5. Licensee shall take appropriate action by agreement or otherwise with all Licensee Personnel (and in the case of a Global Access License, with all applicable Licensee affiliates and Licensee Affiliate Personnel) to ensure that they comply with all of the terms and conditions of this Agreement, including all restrictions on using, copying, distributing and disassembling the Software and those otherwise set out in Section 3 and Section 4.  Licensee shall be responsible for any breach of this Agreement by Licensee Personnel (and in the case of a Global Access License, by all applicable Licensee affiliates and Licensee Affiliate Personnel).
    6. 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 you an Entitlement(s) based on your License Type and permitted Use.  
  3. LICENSE TYPES AND SCOPE OF USE
    1. The Software is provided to you subject to specific terms and conditions that further define the scope of your permitted Use of the Software based on the type of license granted (“License Type”).  The License Type that applies to your Use of the Software will be confirmed in the Transaction Confirmation (where one is provided) or as part of the online purchase verification.  You must not, and must not attempt to, Use the Software outside of the scope of the License Type that applies to the License(s) issued to you.  Any actual or attempted 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.
    2. For greater certainty, the limitations and restrictions of the applicable License Type are in addition to all other limitations and restrictions under the terms and conditions of this Agreement, including those set out in Section 2 and Section 4. 
    3. Certain of the License Types provide for Network Installation.  “Network Installation” means that each of the Licenses issued to you 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 a one hundred (100) kilometre radius of the License Server, and (iii) each Client Computer is within the Territory, and provided that (iv) 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 you have 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 you does not have to be installed on the same License Server, but any single License can not be installed on more than one License Server.
    4. 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 License Types, the Software may be Used under the Non-Commercial License Types (as well as under the Commercial License Types) 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 Type is strictly prohibited.  Any digital asset that is downloaded from the Orbolt Website may be Used 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.
    5. The License Types, and the applicable terms and conditions in respect of same, are as follows:
        1. Apprentice License” and “Apprentice HD License 
          1. Permitted Use.  Subject to Section 3.4, the Software may be Used only for non-Commercial purposes. Subject to Section 3.4, the Software may not be Used to generate any work product that will be used in any Commercial manner.   
          2. Installation.  For each License issued, you may install the License and Use the Software only on one (1) dedicated Computer.  
          3. Term.  If you are provided with an Apprentice License, this Agreement, including the right granted under Section 2.1, in respect of such Apprentice License shall terminate thirty (30) days from the License Activation Date. If you are provided with an Apprentice HD License, this Agreement, including the right granted under Section 2.1, in respect of such Apprentice HD License, shall terminate three hundred and sixty five (365) days from the License Activation Date.
        2. Education License
          1. Permitted Use.  Subject to Section 3.4, the Software may be Used only for: (A) purposes directly related to learning, teaching, training and research that are part of the instructional functions performed by a formal educational institution, such as a degree-granting or certificate-granting college or university, or any other dedicated learning, teaching or training facility; or (B) training and education purposes by a Licensee engaged in Commercial activities.  Subject to Section 3.4, the Software may not be Used to generate any work product that will be used in any Commercial manner. 
          2. Installation.   You may (A) for each License issued, install the License and Use the Software only on one (1) dedicated Computer, or (B) if multiple Licenses are issued for the purpose of usage on a network, install the Licenses and Use the Software pursuant to a Network Installation.
          3. License Relocation.  You may relocate the License from the dedicated Computer or a License Server, as applicable, to another Computer (in which case such Computer would then be the dedicated Computer or the License Server, as applicable) only (A) within the Territory, (B) within a one hundred (100) kilometre radius of where the dedicated Computer or License Server was located when the License was originally installed, and (C) upon prior written notice to Side Effects.  A maximum of one (1) such relocation is permitted without paying the applicable relocation fee to Side Effects and is permitted solely when the dedicated Computer or License Server is being replaced or upgraded.  For greater certainty, Side Effects reserves the right to decline to consent to any relocation of the License from the dedicated Computer or License Server beyond the one (1) permitted, in its sole and absolute discretion.  
          4. Term.  If you are provided with an Education License, this Agreement, including the right granted under Section 2.1, in respect of such Education License shall terminate three hundred and sixty five (365) days from the License Activation Date.
        3. Evaluation License
          1. Permitted Use.  Subject to Section 3.4, the Software may be Used only for purposes of internal evaluation and demonstration of the capabilities of the Software by and to Licensee Personnel.  Subject to Section 3.4, the Software may not be Used to generate any work product that will be used in any Commercial manner.  
          2. Installation.  You may (A) for each License issued, install the License and Use the Software only on one (1) dedicated Computer, or (B) if multiple Licenses are issued for the purpose of usage on a network, install the Licenses and Use the Software pursuant to a Network Installation.
          3. License Relocation.  You may relocate the License from the dedicated Computer or a License Server, as applicable, to another Computer (in which case such Computer would then be the dedicated Computer or the License Server, as applicable) only (A) within the Territory, (B) within a one hundred (100) kilometre radius of where the dedicated Computer or License Server was located when the License was originally installed, and (C) upon prior written notice to Side Effects.  A maximum of one (1) such relocation is permitted without paying the applicable relocation fee to Side Effects and is permitted solely when the dedicated Computer or License Server is being replaced or upgraded.  For greater certainty, Side Effects reserves the right to decline to consent to any relocation of the License from the dedicated Computer or License Server beyond the one (1) permitted, in its sole and absolute discretion.  
          4. Term.  If you are provided with an Evaluation License, this Agreement, including the right granted under Section 2.1, in respect of such Evaluation License shall terminate thirty (30) days from the License Activation Date.
        4. Workstation License
          1. Permitted Use.  The Software may be Used for Commercial purposes.
          2. Installation.  For each License issued, you may install the License and Use the Software only on one (1) dedicated Computer.
          3. License Relocation.  You may relocate the License from the dedicated Computer to another Computer (in which case such Computer would then be the dedicated Computer) only (A) within the Territory, (B) within a one hundred (100) kilometre radius of where the dedicated Computer was located when the License was originally installed, and (C) upon prior written notice to Side Effects. A maximum of two (2) such relocations in any rolling seven hundred and fifty (750) day period is permitted without paying the applicable relocation fee to Side Effects and is permitted solely when the dedicated Computer is being replaced or upgraded.  For greater certainty, Side Effects reserves the right to decline to consent to any relocation of the License from the dedicated Computer beyond the two (2) permitted, in its sole and absolute discretion.  
          4. Dedicated Computer Relocation.  You may relocate the dedicated Computer only (A) within the Territory, (B) to a location within a one hundred (100) kilometre radius of where the dedicated Computer was located when the License was originally installed, and (C) upon the prior written consent of Side Effects (which consent may be withheld by Side Effects in its sole and absolute discretion). 
          5. Freelance Licensee.  Notwithstanding the foregoing paragraph and part (b) of Section 2.1, if Licensee is an individual freelance worker who is self-employed and does not have an affiliation or long-term (i.e. longer than nine (9) months) contractual arrangement with any particular Organization, Licensee may, under this Workstation License (but, for certainty, not under any other License Type), relocate the dedicated Computer and Use the Software outside of the Territory in order to provide freelance services to third parties.
          6. Term.  If you are provided with a Workstation License, this Agreement, including the right granted under Section 2.1, in respect of such Workstation License shall terminate on the termination date, if any, set out in the Transaction Confirmation. 
        5. “Local Access License”
          1. Permitted Use.   The Software may be Used for Commercial purposes.
          2. Installation.  You may install the Licenses and Use the Software only pursuant to a Network Installation.  
          3. License Relocation.  You may relocate the License from a License Server to another Computer (in which case such Computer would then be the License Server) only (A) within the Territory, (B) within a one hundred (100) kilometre radius of where the License Server was located when the License was originally installed, and (C) upon prior written notice to Side Effects.  A maximum of two (2) such relocations in any rolling seven hundred and fifty (750) day period is permitted without paying the applicable relocation fee to Side Effects, and is permitted solely when the License Server is being replaced or upgraded. For greater certainty, Side Effects reserves the right to decline to consent to any relocation of a License from a License Server beyond the two (2) permitted, in its sole and absolute discretion.  
          4. License Server Relocation. You may relocate a License Server only (A) within the Territory, (B) to a location within a one hundred (100) kilometre radius of where the License Server was located when the License was originally installed, and (C) upon the prior written consent of Side Effects (which consent may be withheld by Side Effects in its sole and absolute discretion).
          5. Term.  If you are provided with a Local Access License, this Agreement, including the right granted under Section 2.1, in respect of such Local Access License shall terminate on the termination date, if any, set out in the Transaction Confirmation.
        6. Global Access License
          1. Permitted Use.  The Software may be Used for Commercial purposes.  Notwithstanding Section 2.1, the Software may be Used (A) by Licensee Personnel and by Licensee Affiliate Personnel of those Licensee affiliates set out in the Transaction Confirmation, and (B) only from the locations set out in the Transaction Confirmation (including where such locations are outside of the Territory).
          2. Installation.  You may install the Licenses and Use the Software only pursuant to a Network Installation, provided that part (ii) and part (iii) of the definition of Network Installation in Section 3.3 shall not apply to a Global Access License. 
          3. Additional Use.  For greater certainty, Use of the Software by additional Licensee affiliates, or from additional locations, or on additional Client Computers, beyond what is set out in the Transaction Confirmation requires the prior written consent of Side Effects (which consent may be withheld by Side Effects in its sole and absolute discretion) and may be subject to additional fees.  
          4. Term.  If you are provided with a Global Access License, this Agreement, including the right granted under Section 2.1, in respect of such Global Access License shall terminate on the termination date, if any, set out in the Transaction Confirmation. 
    6. Only one Licensee Personnel (and in the case of a Global Access License, only one Licensee Affiliate Personnel of the applicable Licensee affiliate(s)) shall Use the Software interactively (i.e. using the Software’s graphical user interface) on a Computer (including, for certainty, a Client Computer or a dedicated Computer) at any given time.
    7. Except where the Licenses issued for the Software provide for Use on the basis of the number of Cores, each applicable Computer (including, for certainty, a Client Computer and a dedicated Computer) can run an unlimited number of concurrent sessions of the Software, regardless of the number of Cores physically in that Computer, subject to Section 3.6 and the other restrictions set forth in this Agreement.   Where the Licenses issued for the Software provide for Use on the basis of the number of Cores, the applicable Computer(s) can at any given time only run a limited number of sessions of the Software determined by the number of Cores for which the Licenses were issued.  For example, if the Software is licensed per Core, the number of sessions of the Software running concurrently on one Computer must not exceed the lesser of the number of Licenses and the number of Cores.   
  4. RESTRICTIONS ON USE
    1. Subject to the terms and conditions for the applicable License Type, you agree that you will not, nor permit any third party to: (a) copy the Software except that you may make one (1) copy of the Software solely for backup purposes; (b) assign this Agreement or transfer, lease, export or grant a sublicense of the Software, any License or any right granted under this Agreement, in whole or in part, to any other Person unless authorized by Side Effects in writing; (c) reverse engineer, decompile or disassemble the Software; (d) Use the Software except as authorized herein; (e) permit third parties (including any of your related individuals or affiliated Organizations, except, in the case of a Global Access License, Licensee Affiliate Personnel of the applicable Licensee affiliate(s)) to redeem or un-redeem Entitlements, install Licenses or Use the Software; (f) use any Software licensed under a Non-Commercial License Type for Commercial purposes, or receive any form of compensation for work product created or work performed using any Software licensed under a Non-Commercial License Type; (g) 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; (h) convert the file format of any file generated by the Software when licensed under a Non-Commercial License Type to a file format generated by the Software when licensed under a Commercial License Type; (i) Use the Software to provide any service bureau services; or (j) Use the Software to conduct any competitive analysis of or with the Software.
    2. Licensee shall take all reasonable precautions to prevent any Person from using the Software in any way that would constitute a breach of this Agreement.
    3. Licensee shall continually operate and not tamper with or take any steps to override or circumvent any Entitlement or License Key or any other mechanism that permits, monitors or limits copying, installation or Use of the Software to the applicable scope in accordance with this Agreement.
  5. OWNERSHIP AND COPYRIGHT
    1. Side Effects and its suppliers 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 you by this Agreement.  Any rights not expressly granted under this Agreement are reserved by Side Effects.
  6. DISCLAIMER
    1. The Software is provided “AS IS” without warranty or condition of any kind, express or implied, statutory or otherwise, including the implied warranties or conditions of merchantable quality and fitness for a particular purpose and those arising otherwise from a course of dealing or usage of trade. Without limiting the foregoing, Side Effects does not warrant that (a) the Software will meet your requirements, (b) the Software will be error free, or (c) the functions contained in the Software will operate in all combinations which may be selected for Use by you. 
    2. IN NO EVENT WILL SIDE EFFECTS BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND, INCLUDING DIRECT DAMAGES, 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 OR SUCH DAMAGES WERE REASONABLY FORESEEABLE.
  7. LIMITATION OF REMEDIES
    1. Side Effect’s entire liability and your exclusive remedy for any matter relating to the Software, whether for breach of contract or warranty, tort (including negligence), product liability or otherwise, shall be termination of this Agreement.
  8. Term and Termination
    1. Subject to the terms and conditions of the applicable License Type for the Software you have licensed (including any terms and conditions in respect of termination), this Agreement, including the right granted under Section 2.1, is perpetual and remains fully in effect until terminated pursuant to this Section 8. 
    2. You may terminate this Agreement at any time by destroying all copies of the Software and complying with Section 8.4. 
    3. Side Effects may terminate this Agreement, and therefore the right granted under Section 2.1, without notice to you (i) if you fail to comply with any of the terms and conditions of this Agreement, (ii) if you fail to pay any amount due to Side Effects, or (iii) if you undergo 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). Any such termination by Side Effects shall be in addition, and without prejudice, to such rights and remedies as may be available to Side Effects, including injunction and other equitable remedies. 
    4. Upon receipt by you of written notice of termination from Side Effects or termination by you, you shall immediately: (a) cease using the Software; (b) destroy all copies of the Software; (c) unredeem all Entitlements (i.e. return all Licenses) using the tools provided as part of the Software; and (d) within five (5) days after receipt of such notice or such termination, provide Side Effects with a written confirmation that you have complied with the foregoing. 
    5. The provisions of Sections 1.3, 2.5, 5, 6, 7, 8.4, 8.5, 9, 10, 11, and 12 shall survive termination of this Agreement.
  9. No Assignment
    1. 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).
  10. CERTIFICATION AND Audit
    1. 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) 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 is not, or has not 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.  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 breach 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. 
    2. Side Effects may at any time, upon ten (10) days prior written notice to Licensee, electronically or otherwise reasonably inspect Licensee’s records, systems and facilities in order to ensure compliance with this Agreement. Licensee will provide full cooperation in connection with any such audit, including the provision of such additional documentation and information as Side Effects may reasonably request. 
    3. If as a result of a certification pursuant to Section 10.1, or an audit pursuant to Section 10.2, Side Effects determines that Licensee’s installation of Licenses or Use of the Software is not, or has not been, in conformity with this Agreement, Licensee shall promptly (a) obtain the applicable License(s) from Side Effects required for such installation or Use, (b) pay the applicable fees in respect of such License(s), and (c) pay all reasonable costs and expenses incurred by Side Effects in respect of the certification or audit, as applicable.  In addition, Side Effects shall be entitled to any other remedies available under this Agreement (including termination for breach), at law or in equity in respect of any such unauthorized installation or Use.
  11. MISCELLANEOUS
    1. Any amendment or other modification of any terms or conditions of this Agreement will be effective only if in writing and signed by you and Side Effects.
    2. 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. 
    3. 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.
    4. 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.
    5. 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 hereto 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 Goods. 
    6. 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.
    7. Where the word “include”, “includes” or “including” is used in this Agreement, it means “include”, “includes” or “including”, in each case, “without limitation”.
  12. Definitions

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. 

Agreement” means this Software License Agreement, as may be amended in accordance with its terms. 

Annual Upgrade Plan” means the provision of Upgrades by Side Effects to Licensee for a set period of time upon payment of the applicable fees and agreement between the parties. 

“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.

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. 

Commercial License Type” means the following License Types: Workstation License, Local Access License and Global Access License. 

Computer” means (a) a single electronic device, with one or more central processing units (CPUs), that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions, or (b) 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 in the case of a Global Access License, the applicable affiliate(s) of Licensee).

“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.

Core” means a single physical processor within a central processing unit (CPU).  A CPU may have multiple Cores.

“Entitlement” means a piece 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.  

“License” or “License Key” means a piece of data that is issued upon the redemption of an Entitlement and that, when installed on a computer or server, allows the applicable Software product to be Used on a computer (or, pursuant to Section 3.7, on a Core) that accesses the License. 

License Activation Date” means the day on which the Entitlement is redeemed in exchange for a License Key.

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) independent contractors engaged by the applicable Licensee affiliate, (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: (a) if Licensee is an individual, that individual; or (b) if Licensee is an Organization, (i) Licensee’s employees (including contract employees), (ii) independent contractors engaged by Licensee, (iii) co-op and other students engaged by and otherwise working with or for Licensee, and (iv) Licensee’s interns.

Network Installation” has the meaning set out in Section 3.3.

Non-Commercial License Type” means the following License Types: Apprentice License, Apprentice HD License, Education License and Evaluation License. 

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 thereof 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, files, logos and names, provided directly or indirectly by Side Effects, on-line or otherwise.

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.

Territory” means: (a) the country, state, province, municipality or other jurisdiction specified in the Transaction Confirmation; (b) where no Transaction Confirmation is provided to you and you obtain your 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, or (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).

“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 (a) the fees payable to Side Effects, (b) the Territory, (c) the number of Entitlements and/or Licenses issued or to be issued, (d) the License Type, (e) the affiliates of Licensee that can Use the Software, (f) the locations from which the Software may be used, (g) the termination date, and (h) any additional restrictions on Use of the Software.

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 (a) where Licensee is engaged primarily in Commercial activities, the internal requirements of Licensee’s business in the ordinary course of such business, and (b) 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 (c) providing or making the Software available for Use by any third party, or (d) the Use of the Software by any Licensee Personnel for any personal projects where it is reasonably expected that revenue may be earned. 

Use”, “Used” or “Using” means (a) to initiate, execute, run, display, view and operate the Software, including to author, modify and run digital assets, and (b) in the case of the Related Materials only, to review and print. 

you” and “your” have the meaning set out in Section 1.1.