This Software License Agreement (the “Agreement“), effective as of  May 30, 2021(the “Effective Date“), is entered into by and between AYRMETES, an Alberta partnership located at 29 Coopers Close S.W., Airdrie, Alberta (the “Licensor“) and , the “Licensee,” together with Licensor, the “Parties,” and each a “Party“.

WHEREAS Licensor is the legal and beneficial owner of the Licensed Software and desires to license the Licensed Software to Licensee; and

WHEREAS Licensee desires to obtain a license to use the Licensed Software subject to the terms and conditions of this Agreement;

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS. For purposes of this Agreement,

a. “Agreement” has the meaning set forth in the preamble.

b. “Confidential Information” means any non-public information in any form and however transmitted, whether orally, visually, in writing, or by electronic communication, that both Parties reasonably and in good faith deem to be confidential or proprietary. Confidential Information includes, but is not limited to, technological disclosures, trade secrets, ideas, concepts, know-how, business operations, plans, strategies, customer information, pricing information, and any other information that the disclosing Party is contractually or otherwise bound to keep confidential. Confidential Information may, but is not obligated to be designated, marked, or otherwise identified as “confidential.” See exclusions in the section titled “CONFIDENTIALITY” below.

c. “Documentation” means any and all manuals, instructions, and other end user materials that Licensor provides to Licensee describing the software’s functionality, components, technical specifications, capabilities, requirements, or limitations. Documentation may include, but is not limited to, aspects of the software that are of practical importance to Licensee, such as instructions on installation, configuration, integration, operation, use, support, or maintenance.

d. “Effective Date” has the meaning set forth in the preamble. It is the start date for this Agreement where all rights and obligations herein become operational and enforceable.

e. “Intellectual Property Rights” means any and all registered and unregistered rights to plans, ideas, designs, or other intangible assets. Such rights are granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, right of publicity, other intellectual property rights laws and all similar or equivalent rights or forms of protection, in any part of the world.

f. “Law” means any statute, code, ordinance, rule, regulation, constitution, order, treaty precedent, judgment, or other legal requirements of any authority of competent jurisdiction, including, but not limited to, federal, state, local, or foreign governments, political agencies or subdivisions thereof, or any appropriate courts or tribunals.

g. “Licensed Software” means the current software version and release number of Remotely Possible, any ancillary data files, modules, libraries, tutorials, or demonstration programs, and any Maintenance Releases provided to Licensee according to this Agreement.

h. “Licensee” has the meaning set forth in the preamble.

i. “Licensor” has the meaning set forth in the preamble.

j. “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Licensed Software or Documentation that Licensor may optionally and periodically provide to Licensee during the Term. Such release may include, but is not limited to, error corrections, enhancements, improvements, or other changes to the Licensed Software’s functionality, compatibility, capabilities, performance, efficiency, user interface, or quality. Such release is separate and distinct from any New Version Licensor may choose to release during the Term.

k. “New Version” means any new variant of the Licensed Software that Licensor may introduce and market from time to time as a distinct licensed product. A New Version may be indicated by Licensor’s designation of a new version or release number. Licensor may make a New Version available to Licensee at an additional cost under a separate agreement or by written amendment.

1. “Parties” has the meaning set forth in the preamble.

m. “Party” has the meaning set forth in the preamble.

n. “Permitted Use” means use of the Licensed Software by a single authorized user for specific purposes agreed upon herein.

o. “Open-Source Components” means any software component that is subject to an open-source copyright license agreement. Qualifying open-source copyright license agreements include, but are not limited to, Apache License 2.0, BSD 3-Clause “New” or “Revised” license, BSD 20-Clause “Simplified” or “FreeBSD” license, GNU General Public License, GNU Library or “Lesser” General Public License, MIT License, Mozilla Public License 2.0, Common Development and Distribution License, Eclipse Public License, and any other obligations, restrictions, or license agreements that substantially conform to the “Open Source Definition” as prescribed by the Open Source Initiative or otherwise may require third-party disclosure or licensing if any source code of such software components is used or compiled.

p. “Term” has the meaning set forth in the Term section.

2. LICENSE GRANT. Subject to the terms and conditions of this Agreement and the Parties’ compliance therewith, Licensor hereby grants to Licensee, solely for defined Permitted Use, an exclusive, sublicensable, and transferable license to use the Licensed Software and Documentation during the Agreement Term.

a. Scope of Licensed Access and Use. Licensee can install, use, and run the Licensed Software.

b. Open-Source Licenses. Should the Licensed Software include any Open-Source Components, Licensee’s use of the Open-Source Components will be governed by, and subject to, the terms and conditions of the related open-source and public licenses. Licensor will provide Licensee with the license name, author information, license source, access information, and other relevant information for Open-Source Components upon request.

3. LICENSE RESTRICTIONS. Except as expressly permitted in this Agreement, and subject to the Open-Source Components if applicable, Licensee will not, and will not permit any third party to,

a. reproduce any portion of the Licensed Software for any purpose except as otherwise authorized in this Agreement;

b. decode, disassemble, reverse engineer, or otherwise attempt to derive or gain access to any portion the Licensed Software’s source code;

c. adopt, build upon, correct, modify, translate, or otherwise improve or create derivative works of the Licensed Software;

d. lend, publish, or otherwise make available to any third party not authorized within this Agreement the Licensed Software in any manner, including, but not limited to, access to the Licensed Software on the internet or any timesharing, service bureau, software as a service, cloud, or similar technology or service;

e. breach or circumvent any disclosed or undisclosed security device or intended protection used for or contained in the Licensed Software or Documentation;

f. efface, alter, obscure, translate, combine, or otherwise change any trademarks, disclaimers, warranties, Documentation terms, Intellectual Property Rights, proprietary rights, or any symbols, notices, marks, serial numbers, or identification on or relating to any copy of the Licensed Software or Documentation;

g. use the Licensed Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or any applicable Law;

h. use the Licensed Software for the purposes of (i) comparative or competitive analysis of the Licensed Software; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to Licensor’s detriment or commercial disadvantage;

i. use the Licensed Software, Documentation, or any Open-Source Components for any purpose not expressly permitted under Permitted Use or in any manner not expressly permitted by this Agreement or the controlling Open-Source License.

4. TERM. The term of this Agreement commences as of the Effective Date and will continue in effect, pursuant to the Termination section under this Agreement.

5. DELIVERY. Licensor will deliver one copy of the Licensed Software to Licensee electronically via a standard internet secure file transfer protocol.

6. PAYMENT

a. Late Payment. If any payment to Licensor is delinquent, then in addition to all other remedies available to Licensor,

  1. Licensor may charge interest on the past due amount at a rate no higher than the highest rate permitted under applicable Law;
  2. Licensee must reimburse Licensor for all reasonable costs incurred to collect any and all late payments and associated interest amounts, including, but not limited to, any attorneys’ fees, court costs, and collection agency fees; and
  3. if payment delinquency continues for five business days following written notice or demand for payment, Licensor may exercise any or all of the following remedies: (1) technologically disable Licensee’s use of the Licensed Software; (2) withhold, suspend. or revoke this license grant; and (3) terminate this Agreement pursuant to the Termination section.

7. MAINTENANCE RELEASE. During the Term, Licensor may. at Licensor’s sole option and discretion, provide Licensee with Maintenance Releases and updated Documentation. All Maintenance Releases are considered part of the Licensed Software and are subject to all applicable terms and conditions in this Agreement. Licensee agrees to install all Maintenance Releases as soon as practicable after receipt. Licensor agrees to provide any Maintenance Releases free of charge.

8. NEW VERSION. Licensee does not have any right or option to receive any New Versions of the Licensed Software that Licensor, in its sole discretion, may release neither during nor after the Term. Licensee may seek to negotiate a new, separate, or amended license grant for any New Version at Licensor’s then-current price for the New Version, provided Licensee is in compliance with the terms and conditions of this Agreement

9. TITLE, INTELLECTUAL PROPERTY RIGHTS, AND INFRINGEMENT

a. Ownership. Licensee acknowledges and agrees that

  1. Licensor is and will remain the sole and exclusive owner of all rights, title, and interest in and to the Licensed Software, Documentation, Maintenance Release, New Version, and all Intellectual Property Rights associated herein, subject only to the rights of any disclosed third parties, within any Open-Source Components, and the limited license granted to Licensee under this Agreement;
  2. the Licensed Software, Documentation, and Intellectual Property Rights are licensed, not sold, to Licensee. Licensee does not, has not, and will not acquire any ownership interest in the Licensed Software, Documentation, or any related Intellectual Property Rights through this Agreement;
  3. nothing in this Agreement grants any implied rights to Licensee, including by implication, waiver, or estoppel, in any Intellectual Property Rights or other rights, title, or interest in any portion of the Licensed Software and Documentation; and
  4. Licensee unconditionally and irrevocably assigns to Licensor its entire right, title, and interest in any Intellectual Property Rights that Licensee may have currently or in the future relating to the Licensed Software or Documentation, including any derivative works or patent improvement rights, however held or acquired.

b. Licensee Cooperation and Notice of Infringement. Licensee will, during the Term,

  1. secure and protect the Licensed Software and Documentation from infringement, misappropriation, misuse, theft, or other unauthorized access through all commercially reasonable measures and precautions similar to those Licensee would employ to secure and protect its own intellectual property,
  2. take all reasonable steps as Licensor may require and request to maintain the validity, enforceability, and ownership of all Licensor’s Intellectual Property Rights herein;
  3. promptly notify Licensor in writing if Licensee becomes aware of any actual or suspected infringement, misappropriation, misuse, theft, unauthorized access, or other violations of Licensor’s Intellectual Property Rights in or relating to the Licensed Software or Documentation;
  4. promptly notify Licensor in writing of any claim that the Licensed Software or Documentation, in whole or in part, infringes, misappropriates, or otherwise violates any rights, including Intellectual Property Rights, of other persons or entities; and
  5. fully cooperate with and assist Licensor in all commercially reasonable ways, including but not limited to providing records, information, depositions, and testimonies, and at Licensor’s sole expense, in any claim, suit, action, or proceeding to prosecute or defend Licensor’s rights in the Licensed Software, Documentation, and any Intellectual Property Rights herein.

10. VERIFICATION

a. Verification. At Licensor’s written request Licensee will confirm in writing the actual scope of Licensee’s access and use of Licensed Software and list all locations of actual use if applicable.

b. Excessive Use Result. If the verification determines that Licensee’s Licensed Software use exceeds the usage or scope permitted by this Agreement, Licensee agrees to pay Licensor all amounts due for excessive use of the Licensed Software as negotiated at such time.

11. CONFIDENTIALITY

a. Confidential Information. In connection with this Agreement each Party may disclose or make available to the other Party Confidential Information which includes, but is not limited to, the Licensed Software, Documentation, and any terms of this Agreement.

b. Exclusions and Exceptions. Confidential Information excludes information that

  1. was rightfully and lawfully known to the recipient without any restrictions on use or disclosure prior to disclosure by disclosing Party in connection with this Agreement,
  2. was or becomes part of the public domain by means other than by the recipient or any of the recipient’s representatives’ violations of this Agreement,
  3. was or is received by the recipient on a non-confidential basis from a third party that was not, or is not, at the time of such receipt, under any obligation to maintain its confidentiality, or
  4. was or is independently developed by the recipient without reference to or use of any Confidential Information.

c. Protection of Confidential Information. As a condition of receiving any Confidential Information, the recipient will

  1. only access or use Confidential Information if absolutely necessary to exercise the recipient’s rights or perform the recipient’s obligations under this Agreement;
  2. except when compelled by Law, not disclose or permit access to Confidential Information other than to the recipients’ representatives on a need-to-know basis for the recipient to exercise its rights or perform its obligations under this Agreement, under strict information and understanding of the confidential nature of Confidential Information and the recipients obligations to protect Confidential Information, and with acknowledgment from such representatives that they too are bound by the confidentiality and restricted use obligations set forth herein;
  3. use, at minimum, the same degree of care mat recipient uses to protect its own similarly sensitive information, and no less than a generally commercially reasonable degree of care, to secure and protect Confidential Information from unauthorized use, access, or disclosure;
  4. promptly notify the disclosing Party in writing of any actual or suspected unauthorized use or disclosure of Confidential Information and cooperate with disclosing Party, by taking all reasonable steps to prevent further unauthorized use or disclosure, and
  5. ensure recipient’s representatives comply with the terms of this section and are responsible and liable for their noncompliance, if any.

d. Trade Secrets Confidentiality Duration. Notwithstanding any other provisions in this Agreement, the recipient is obligated to protect any Confidential Information that constitutes as trade secrets under any applicable Law until such Confidential Information ceases to qualify for trade secret protection by operation of Law.

e. Compelled Disclosure. To the extent permitted by Law, if the recipient or its representatives are compelled by Law to disclose any Confidential Information, the recipient must promptly, and prior to such disclosure, notify the disclosing Party in writing of such requirement to allow the disclosing Party the opportunity to seek a protective order or other legal remedy. The recipient must also provide reasonable assistance to the disclosing Party to oppose such disclosure, to seek a protective order, or to seek other disclosure limitations or remedies. If disclosure is unavoidable, the recipient may disclose only such Confidential Information that recipient is legally required to disclose. Upon disclosing Party’s request, the recipient must use commercially reasonable efforts to obtain assurances of confidential treatment of all compelled Confidential Information from the applicable court or legal authority.

12. TERMINATION. This Agreement may be terminated at any time

a. by Licensor if Licensee fails to make payment where such failures continue more than five business days after the due date, effective on written notice of termination to Licensee;

b. by either Party for the other Party’s material breach of this Agreement that is incurable or uncured by breaching party for 30 days after being served with notice of breach and demand for cure, effective on written termination notice to the breaching Party,

c. by Licensor, effective immediately irrespective of written notice, if Licensee

  1. is dissolved or liquidated or takes any corporate action for such purposes;
    1. becomes insolvent or is generally unable to pay its debts as they become due;
    1. becomes the subject of any bankruptcy proceedings, voluntary or involuntary, under any domestic or foreign bankruptcy or insolvency Law,
    1. makes or seeks to make a general assignment for the benefit of its creditors; or
    1. applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property; and

d. by both Parties upon mutual written agreement.

13. TERMINATION OR EXPIRATION EFFECTS. Upon early termination or the natural expiration of this Agreement,

a. all licenses, rights, and authorizations granted to Licensee herein will immediately terminate and Licensee will

  1. promptly cease all use of the Licensed Software and Documentation;
    1. within five business days deliver to Licensor, or at Licensor’s written request, destroy and permanently erase from all Licensee’s and their representatives’ devices, equipment, and systems, the Licensed Software, Documentation, and all Licensor’s Confidential Information; and
    1. certify in writing that Licensee, and any of Licensee’s representatives, has complied with the termination requirements herein; and

b. all amounts payable of any kind under this Agreement are immediately due and payable effective on the expiration date or early termination date.

14. MUTUAL REPRESENTATIONS AND WARRANTIES. Each Party represents, warrants, and covenants to the other Party that

a. it is duty established, validly existing, and in good standing to conduct business as a sole proprietorship, partnership, company, corporation, trust, organization, or any other valid entity under the Laws of its jurisdiction;

b. it has the full right, power, and authority to enter into this Agreement;

c. it is capable of performing its obligations and granting any licenses, rights, and authorizations specified under this Agreement;

d. the executing representative for each Party is duly authorized to represent each Party in this Agreement by all necessary business formalities and organizational actions; and

e. this Agreement is legal, valid, binding on, and enforceable against each Party when fully and mutually executed and delivered.

15. LIMITED WARRANTY

a. Warranty. Licensor warrants to Licensee, for 90 calendar days from the Effective Date or for the Term, whichever is less, that

  1. the Licensed Software substantially conforms in all material respect to the Documentation specifications when it is installed, operated, and used as recommended in the Documentation and in accordance with this Agreement; and
    1. all Maintenance Releases, when correctly and promptly installed in compliance with the Documentation and this Agreement, will not materially affect the Licensed Software’s functionality.

b. Conditions. Licensor’s aforementioned limited warranties are valid and apply only if Licensee complies with the following conditions:

  1. Licensee notifies Licensor in writing of any warranty breach during the limited warranty period.
    1. Licensee promptly installs all Maintenance Releases that Licensor previously made available to Licensee in order of distribution.
    1. Licensee is in compliance with and current on all terms and conditions of this Agreement, including the payment terms, as of the warranty breach notification date.

c. Exceptions. Notwithstanding any provisions to the contrary, Licensor’s aforementioned limited warranties are not valid and do not apply to problems arising out of or relating to

  1. any modification or damage to the Licensed Software or its storage media caused by the Licensee or its representatives;
    1. any Licensed Software operation or use not expressly specified and permitted in the Documentation or this Agreement, including incorporating the Licensed Software in or with any non-Licensor approved technology or service unless otherwise expressly permitted by Licensor in writing;
    1. Licensee’s, its representatives’, or any third party’s negligence, abuse, misapplication, or misuse of the Licensed Software, including any use not expressly specified and permitted in the Documentation or otherwise expressly authorized by Licensor in writing;
    1. Licensee’s failure to promptly install the Maintenance Releases previously provided by Licensor in the order the were received;
    1. Licensee’s or a third party’s system or network;
    1. any Open-Source Components, beta software, incomplete sample, demonstration or testing software, temporary software modules, or any software for which Licensor does not receive a license fee;
    1. Licensee’s breach of any material provision of this Agreement; or
    1. any other causes or conditions outside Licensor’s reasonable control.

d. Remedy. If Licensor breaches, or is alleged to have breached, any limited warranties herein. Licensor may, at its sole option and expense, take any of the following steps to appropriately remedy such breach:

  1. Repair the Licensed Software.
  2. Amend, supplement, or replace any incomplete or inaccurate Documentation.
  3. Replace the Licensed Software or Maintenance Releases with functionally equivalent software that, upon its replacement, constitutes the Licensed Software hereunder.
  4. Replace any defective storage media on which Licensor provided the Licensed Software.
  5. Terminate this Agreement and, provided that Licensee fully complies with its post-termination obligations, promptly prorate and refund Licensee any prepaid amount by Licensee for any period after the termination date.

e. Sole Remedy. Should Licensor fail to cure a warranty breach or terminate this Agreement within a reasonable time period after Licensor’s receipt of Licensee’s timely written notice of such breach, Licensee can terminate this Agreement as provided herein. Provided Licensee fully complies with its port-termination obligations, Licensor must promptly prorate and refund Licensee any prepaid amount by Licensee for any period after the termination date. THIS IS LICENSEE’S SOLE REMEDY AND LICENSOR’S ENTIRE OBLIGATION AND LIABILITY FOR ANY LIMITED WARRANTY BREACH UNDER THIS AGREEMENT.

f. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND FOR THE EXPRESS LIMITED WARRANTIES HEREIN, ALL LICENSED SOFTWARE, DOCUMENTATION, MAINTENANCE RELEASE, PRODUCTS, INFORMATION, MATERIAL, AND SERVICES PROVIDED BY LICENSORARE PROVIDED “AS IS, WHERE IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED. STATUTORY, OR ARISING FROM ANY COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LICENSOR SPECIFICALLY AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS TO THIRD PARTIES, PATENT VALIDITY, OPERATION WITHOUT INTERRUPTION, ACHIEVEMENT OF LICENSEE’S REQUIREMENTS OR INTENDED RESULTS, OR COMPATIBILITY WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, OR MATERIALS EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION. FURTHERMORE, AND WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION IS OR WILL BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE OR ERROR. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERLALS ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. ANY OPEN-SOURCE COMPONENTS OR THIRD-PARTY REPRESENTATION OR WARRANTY IS STRICTLY LIMITED TO LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS AND UNRELATED TO LICENSOR.

16. INDEMNIFICATION

a. Licensor Indemnification. Licensor will indemnify, defend, and hold harmless Licensee, its officers, directors, employees, agents, affiliates, and other representatives from and against any and all losses incurred by Licensee arising from any third-party action, suit, or claim that alleges the Licensed Software, or any use of the Licensed Software in accordance with this Agreement, infringes any Intellectual Property Rights.

b. Licensor Indemnification Exceptions. The foregoing Licensor indemnification does not apply to the extent that such actions or losses arise from any allegation of or relating to any

  1. patent, copyright, or trademarks issued on a patent, copyright, or trademark application published or granted after the Effective Date;
  2. unauthorized, unlicensed, and unpermitted modification of the Licensed Software without Licensor’s express knowledge, written consent, and in direct contradiction to Licensor’s Documentation specifications;
  3. unauthorized, unlicensed, and unpermitted use of the Licensed Software outside the purpose, scope, or manner authorized by this Agreement or in any manner contrary to Licensor’s instructions;
  4. Open-Source Components, other third-party materials, or any material outside of Licensor’s exclusive control;
  5. failure to promptly install and implement any Maintenance Release or Licensed Software replacement in the order received and made available to Licensee by Licensor,
  6. Licensed Software use after Licensee’s receipt of Licensor’s written notice that such continued use may be alleged to or actually infringe upon, misappropriate, or otherwise violate a third party’s rights;
  7. Open-Source Components or other third-party materials;
  8. negligence, abuse, misapplication, or misuse of the Licensed Software by or on behalf of Licensee, its representatives, or a third party;
  9. causes or conditions outside Licensor’s commercially reasonable control, including, but not limited to, any third-party equipment error or Licensee’s own system bugs, defects, or malfunctions; or
  10. actions or losses for which Licensee is obligated to indemnify Licensor pursuant to this Agreement.

c. Licensee Indemnification. Licensee will indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, and other representatives from and against any and all losses incurred by Licensor due to any third-party actions, claims, or suits should such losses relate to any allegation

  1. that any rights, including Intellectual Property Rights, are or will be infringed, misappropriated, or otherwise violated by Licensee’s unauthorized Licensed Software use in a manner inconsistent with the license grant in this Agreement and Documentation;
    1. of or relating to matters that would be deemed a Licensee breach of representation, obligation, covenant, or warranty under this Agreement if proven true;
    1. of or relating to negligence, abuse, misapplication, misuse, or other culpable acts or omissions by or on behalf of Licensee or its representatives with respect to the Licensed Software or otherwise in connection with this Agreement; or
    1. of or relating to the unauthorized, unlicensed, and unpermitted use of the Licensed Software or Documentation outside the purpose, scope, or manner authorized by this Agreement or in any manner contrary to Licensor’s instructions.

d. Mitigation. Should Licensor believe the Licensed Software, in whole or in part, may be claimed by any third party to be in notation of another’s Intellectual Property Right, or if Licensee’s use of the Licensed Software is enjoined or threatened to be enjoined, Licensor may mitigate the situation at its own option and expense by

  1. obtaining the right from the appropriate third party for Licensee to continue to use the Licensed Software materially as intended in and for the Term duration of this Agreement;
  2. modifying or replacing the Licensed Software to the extent that it becomes non-infringing while still providing the materially equivalent features and functionalities of the original software, and such modification or replacement will constitute the Licensed Software thereunder, or
  3. terminating this Agreement, in whole or in part, effective immediately upon written notice to Licensee and, provided that Licensee fully complies with its post-termination obligations, promptly prorate and refund Licensee any prepaid amount by Licensee for any period after the termination date.

e. Sole Remedy. THIS SECTION CONSTITUTES LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE OBLIGATIONS AND LIBILITIES FOR ANY CLAIMS OR ALLEGATIONS, WHETHER ACTUAL OR THREATENED, THAT THIS AGREEMENT, SOFTWARE, DOCUMENTATION, OR ANY SUBJECT MATTER HEREOF, INFRINGES. MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

17. LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCE, INCLUDING WHERE PARTIES WERE ADVISED THAT LOSSES OR DAMAGES WERE POSSIBLE OR FORESEEABLE, WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY: COST INCREASE; BUSINESS, PRODUCTION, REVENUES, OR PROFITS LOST; VALUE DIMINUTION; REPUTATIONAL LOSS; DAMAGED GOODWILL; USE, INABILITY TO USE, DELAY, INTERRUPTION, LOSS, OR RECOVERY OF ANY LICENSED SOFTWARE, OPEN-SOURCE COMPONENTS, OR ANY THIRD-PARTY MATERIALS; DATA OR SYSTEM SECURITY BREACH, CORRUPTION, DAMAGE OR RECOVERY; REPLACEMENT COST OF GOODS, SOFTWARE, OR SERVICES; OR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, NEGLIGENCE, AND STRICT LIABILITY.

18. FORCE MAJEURE. Neither Party will be liable to the other by reason of failure or delay in the performance of this Agreement if the failure arises out of any circumstance beyond such Party’s reasonable control, including acts of God, flood, fire, natural disaster, war, terrorism, invasion, riot, civil unrest, embargos, national or regional emergency, strikes, labor disruptions, Law changes, or power or telecommunication interruptions or shortages. The Party failing or delaying in performance of this Agreement due to circumstances beyond their control must give prompt written notice to the other Party stating the estimated length of time the occurrence is expected to continue. Either Party may terminate this Agreement if such uncontrollable circumstance continues for longer than 30 days.

19. GENERAL PROVISIONS

a. Relationship of the Parties. Nothing contained m this Agreement shall be construed as creating any agency, partnership, or any other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party shall have the authority to bind the other in any manner.

b. Notices. Notices will be deemed effectively given when received if delivered by hand; when received if sent by a nationally recognized courier with required signature upon receipt; when sent if delivered by email with transmission confirmation and sent during receiving party’s normal business hours; and on the next business day if delivered by email with transmission confirmation and sent after normal business hours.

Any notice, request, consent, claim demand, waiver, or other communication under this Agreement must be in writing and addressed to Parties as follows:

Licensor

Address:      29 Coopers Close S.W., Airdrie, AB, Canada T4B 2X1

Email:         andy@checkcheckonetwo.com

c. Publicity. Each Party agree to seek express permission and written consent before using the other Party’s trademarks, service marks, trade names, logo, domain names, or other indicia of source, association, or sponsorship for any purpose but specifically relating to publicity, marketing, or commercial materials.

d. Governing Law. This Agreement is governed by and constituted in accordance with the Laws of the Province of Alberta without giving effect to any choice or conflict of law provisions or rules that would permit the application of the laws of any other jurisdiction.

e. Headings. The section and subsection headings or captions in this Agreement are for reference only and do not affect the meaning or interpretation of this Agreement.

f. Further Assurances. The Parties will cooperate with each other, execute and deliver such documents or instruments, and take all further actions as may be reasonably requested by the Parties from time to time in order to carry out, evidence, or confirm their rights or obligations or as may be reasonably necessary or helpful to give full effect to this Agreement.

g. Amendment and Modifications. This Agreement may be supplemented, amended, or modified only by mutual and written agreement of all Parties. No amendment, modification, rescission, or termination is effective unless it is in writing and executed by all Parties or their authorized representatives.

h. Waiver. No Party to this Agreement is deemed to have waived any of their rights, powers, remedies, or privileges under this Agreement unless such waiver is expressly set forth in writing and signed by the waiving Party. Except as otherwise set forth in this Agreement, the failure to exercise or enforce any rights, powers, remedies, or privileges under this Agreement will in no way be construed as a present or future waiver of such rights, powers, remedies, or privileges.

i. Assignment. Except as otherwise expressly permitted in this Agreement, Licensee may not, directly or indirectly, sell, assign, sublicense, lease, rent, distribute, or otherwise transfer the Licensed Software or any license rights and obligations under this Agreement, to any other person or entity without express written consent by Licensor.

j. No Third-Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties. Nothing in this Agreement, express or implied, is intended to or shall confer on or create to any other person or entity any legal or equitable right, benefit, or remedy of any kind whatsoever.

k. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by electronic transmission, including email or facsimile, is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

l. Severability. If any provision of this Agreement or the application thereof is held to be invalid or unenforceable for any reason and to any extent, then that provision will be considered removed from this Agreement. However, the remaining provisions will continue to be valid and enforceable according to the intentions of all Parties and to the maximum extent permitted by Law. If it is held that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.

m. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole, entire, and final agreement of the Parties with respect to the subject of this Software License Agreement. This Agreement supersedes all prior and contemporaneous understandings, representations, agreements, and warranties, whether written, oral, or implied. Should any inconsistency occur between statements made in the body of this Agreement, any related exhibits, schedules, attachments, and appendices, and any other documents incorporated herein by reference, the following order of precedence governs: (i) this Agreement, excluding any exhibits, schedules, attachments, appendices, or any other documents incorporated herein by reference, (ii) this Agreement’s exhibits, schedules, attachments, and appendices, if any; and (iii) any other documents incorporated in this Agreement by reference.