Carefully read the terms of this agreement before installing the software obtained from Thinkbox Software. If you or your agent opens the installer package and accepts the terms of this agreement, or installs, copies or otherwise uses the software, you accept all of the terms of this agreement and agree to be bound by this agreement. If the terms of this agreement are not acceptable to you:
- Do not open the installer package and accept the terms of this agreement.
- You may not install, copy, or otherwise use the software.
- Contact Thinkbox Software Inc. ("Thinkbox") immediately.
Provided that you or your agent has accepted and agreed to the terms of this agreement, Thinkbox grans you or your agent ("Customer") a license to use the software as indicated below:
1. Definitions. “Intellectual Property Rights” includes all patents, inventions, trade-mark, service marks, registered designs, integrated circuit topographies, including applications for any of the foregoing, as well as copyrights, design rights, know-how, confidential information, trade secrets and any similar rights in Canada and in any other country.
“Render Nodes” shall mean a computer processor unit. The number of authorized Render Nodes is listed on the ordering document.
“Software” shall mean Thinkbox’s computer program identified on the ordering document in object code form, including the media on which it is stored, any related user documentation and any updates or enhancements to the computer program or documentation that Thinkbox may deliver pursuant to a separate support and maintenance agreement.
2. Software. Subject to the terms and conditions of this Agreement, Thinkbox hereby grants to Customer a nonexclusive, worldwide right, solely for the internal business operation by Customer, to install or have installed, execute or run, the Software on the number of Customer’s Render Nodes designated on the ordering document. Customer may make one (1) copy of the Software in machine readable form solely for back-up purposes, provided Customer copies all proprietary notices onto the copy. Any rights not expressly granted herein shall be reserved for Thinkbox. Source code, as well as any other information pertaining to the logic, design or structure of the Software, is specifically excluded from the License granted hereunder and shall remain a proprietary trade-secret belonging exclusively to Thinkbox.
3. Restrictions. Unless enforcement is prohibited by applicable law, Customer may not distribute, disseminate, sublicense, copy, modify, reverse engineer, decompile, translate, dissemble or create a source code equivalent of the Software. Customer may only install or have installed, execute or run the object code version of the Software. Customer may not use the Software to provide software applications services, time sharing or services bureau services to third parties unless Customer has purchased from Thinkbox a specific license authorizing Customer to do so.
4. Fees, Payments and Taxes. All fees and expenses (“Fees”) are as set out on Thinkbox’s invoice, and are due and payable by Customer within thirty (30) days from the date of Thinkbox’s invoice. Payment by Customer is to be made directly to Thinkbox at the address listed in Thinkbox’s invoice. All payment of Fees shall be in U.S. Dollars. Any Fees or portion thereof which are not paid within thirty (30) days from the date of the invoice shall be charged daily interest at the rate of 24% per annum from the date of the invoice until paid in full. In the event Customer is in default of payment and had received any type of discount on Fees, any and all discounts shall be forfeited and the full amount of the Fees shall be due and payable. If Customer has any delinquent accounts with Thinkbox, Thinkbox shall not be obliged to continue performance of any agreement with Customer, including, without limiting the generality of the foregoing, any agreement with respect to maintenance services for the Software, unless Customer is contesting any such account in good faith and has paid the portion of the account it is not contesting. All amounts payable under this Agreement are exclusive of all sales taxes. Customer shall pay, indemnify and hold Thinkbox harmless from any sales, use, value-added, withholding, excise, import or export, or similar tax (excluding only taxes based on Thinkbox’s net income) or other duty or fee and any penalties or interest associated with any taxes imposed by any governmental authority with respect to any payment to be made by Customer to Thinkbox under this Agreement.
5. Ownership of the Software. Thinkbox retains all right, title and ownership of the Software and all Intellectual Property Rights therein. Customer acknowledges that the Software contains trade secrets of Thinkbox and that the Software is protected by Canadian and international copyright and other intellectual property laws and treaties. Customer bears all risk of loss in respect of the Software while it is in Customer’s possession or control. Customer agrees that it shall immediately notify Thinkbox in writing of any unauthorized possession or use of the Software. Customer may use trade-marks of Thinkbox only to identify output produced by the Software, in accordance with accepted trade-mark practice, including identification of trade-mark owner's name. Such use of any trademark does not give Customer any rights of ownership in that trade-mark. This Agreement is not a sale of the Software or any copy thereof and Customer has only acquired a license to use the Software on the terms set forth herein.
6. Delivery. Upon receipt of Customer’s purchase order or other confirmation, Thinkbox will deliver the ordered Software, by physical or electronic means, F.O.B. Thinkbox headquarters, and shall be deemed accepted upon delivery.
7. Confidentiality. (a) Confidential Information means all confidential information including, without limitation, source code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), product development plans, schematics and other technical, business and financial information, forecasts and strategies and any other information marked "Confidential", including (i) the Software, prices on the ordering document, and terms of this Agreement; and (ii) any non-public information, data or know-how that has been disclosed by a party to this Agreement to the other party in writing, orally or by access to the disclosing party’s premises and identified by the disclosing party, in writing or orally, as confidential or proprietary.
(b) The receiving party shall not use any Confidential Information except only for the purposes specifically provided in this Agreement.
(c) The receiving party shall not, for a period of five (5) years from the date of disclosure, or in perpetuity if the Confidential Information constitutes a trade secret
under applicable law, disclose the Confidential Information to a third party, other than to (i) employees on a need to know basis or (ii) consultants, affiliates, agents or
subcontractors (third parties) pursuant to nondisclosure agreements which are at least as strict as this Agreement, provided that such third parties are not competitors
of the disclosing party. The receiving party shall be liable for any misuse of Confidential Information by any third party.
(d) The foregoing obligations do not apply to information that (i) was rightfully in the possession of, or was known by, the receiving party prior to its receipt from the
disclosing party, free of any obligation of confidence; (ii) is or becomes generally known to the public without violation of this Agreement; (iii) is obtained by the receiving party from a third party, without an obligation to keep such information confidential; or (iv) is independently developed by the receiving party without use
of the Confidential Information.
(e) In the event the receiving party is required to disclose Confidential Information pursuant to a judicial or governmental order, or valid subpoena, such party will: (i) promptly notify the other party to allow intervention in response to such order; (ii) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure; and (iii) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.
(f) Each party acknowledges and agrees that the other party's remedies at law for breach of its obligations under this Article would be inadequate and the other party shall, in the event of any such actual or threatened breach and in addition to all other rights and remedies under this Agreement or otherwise available at law, be entitled to equitable relief, including, without limitation, preliminary, interlocutory and permanent injunctive relief and specific performance, and each party hereby unconditionally and irrevocably waives all defenses to the granting of such relief.
(g) This Section is in addition to and not in substitution of any other nondisclosure agreement between the parties.
8. Term. The term of the license to the Software granted pursuant to this Agreement is perpetual, provided that Customer has paid in full all associated Fees for the Software, and provided however that Thinkbox has the right to terminate such license and/or this Agreement immediately if Customer fails to comply with any of the terms of this Agreement or of any other agreement with Thinkbox in respect of the Software, including any agreement with respect to maintenance services, and such failure is not rectified within five (5) days written notice to Customer. Upon termination of this Agreement or the license granted herein, Customer shall destroy the Software and all copies thereof and provide certification in writing of the foregoing to Thinkbox. Such termination shall not prejudice or affect the accrued rights or claims of Thinkbox nor shall it release the Customer from the restrictions contained in Article 7 of this Agreement.
9. Warranties/Exclusive Remedies. Thinkbox warrants for ninety (90) days from the date of delivery to Customer (the “Warranty Period”) that the enclosed media, if delivery is physical, is free of defects in materials and workmanship when properly adapted, installed, and used. If the enclosed media is defective and Customer gives written notice of such defect to Thinkbox within the Warranty Period, Thinkbox will promptly repair or replace any defective media which fails to comply with such warranty. All warranty claims not made in writing or not received by Thinkbox within the Warranty Period shall be deemed waived. The Software is otherwise provided to Customer "AS IS," and Customer acknowledges that it may contain errors. Thinkbox disclaims any warranty or liability obligations to Customer of any kind. Neither Thinkbox nor its suppliers warrant the performance or results Customer may obtain by using the Software or documentation. Neither Thinkbox nor its suppliers make any warranties, express or implied, as to non-infringement of third party rights, merchantability, or fitness for any particular purpose. The foregoing states Customer’s sole and exclusive remedy and Thinkbox’s sole and exclusive obligation and liability for any breach of warranty. This limited warranty gives Customer specific legal rights. Customer may have others, which vary from jurisdiction to jurisdiction.
10. Support. Thinkbox will provide free support and maintenance for the Software for one (1) year from the date of delivery to Customer (the “Free Support Period”). Unless Customer gives written notice to Thinkbox at least three (3) months prior to the end of the Free Support Period or any Paid Support Period (as hereinafter defined), stating expressly its intention not to continue receiving support and maintenance, Thinkbox will continue, after the Free Support Period and without further notice to Customer, to provide support and maintenance for the Software at a fee determined by Thinkbox from time to time, for successive one (1) year periods (each such period being a “Paid Support Period”), subject only to the right of the Customer to terminate such support and maintenance as set out in this Section 10.
11. Limitations of Liability. Thinkbox and its third party suppliers shall not be liable for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or data use incurred by Customer or any third party, whether in an action in contract or tort (including without limitation, negligence and strict liability), by statute, or other legal theory even if Thinkbox has been advised of the possibility of such damages. Thinkbox’s and its third party suppliers’ liability for damages hereunder shall in no event exceed the Fees paid by Customer for the license(s). The parties agree to the allocation of liability risk, which is set forth in this section. The foregoing limitations will apply even if the above stated warranty fails of its essential purposes. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, and so the above limitation may not apply in respect of those jurisdictions only.
12. General. The division of this Agreement into sections and the insertion of headings are for convenience only and shall not affect the interpretation of this Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, written or oral. Any conflicting terms of Customer’s purchase order or order confirmation shall be superseded by this Agreement and shall be of no force or effect. This Agreement shall be construed, interpreted and enforced in accordance with the laws of Manitoba and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of such province and all courts competent to hear appeals therefrom. Customer may not assign or transfer this Agreement or the license granted herein unless: (i) Customer has provided advance written notice to Thinkbox of the full name and address of the assignee or transferee, and has received the written consent of Thinkbox, which consent shall not be unreasonably withheld, and (ii) Customer has paid any license transfer fee then in effect, and (iii) the transferee has agreed in writing to be bound by this Agreement. This Agreement may not be modified except by written agreement of the parties signed by duly authorized officers. The parties shall not be liable for any failure to perform their respective obligations under this Agreement where such failure is due to causes beyond their reasonable control (except for any payment of money hereunder). Customer will comply with all applicable laws and regulations in its use of the Software or other technical data delivered by Thinkbox under this Agreement and Customer agrees to comply strictly with all applicable export or import laws and regulations after delivery to Customer. All terms and conditions, which by their nature should survive the termination or expiration of this Agreement, shall survive. Invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions of this Agreement. No waiver of a provision of this Agreement shall constitute a continuing waiver unless otherwise agreed to in writing.