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MICROSURVEY END-USER LICENSE AGREEMENT

This MicroSurvey End-User License Agreement (“Agreement”) is a legal and binding agreement between you (“Licensee”) and MicroSurvey Software Inc., a BC corporation (“MICROSURVEY”) concerning the use of the MicroSurvey products (the “Product”), the software provided in connection with the use and operation of the Product, including firmware and stored measurement data (collectively the “Software”) and all related documentation provided in connection with the acquisition of the Product (“Documentation”). The Software includes software owned by, and licensed from, third party licensors.

By clicking the “I ACCEPT” check box and completing the process of installing the Software, Licensee consents to and agrees to be bound by all of the terms and conditions of this Agreement. By clicking the “I REJECT” check box or if Licensee disagrees with any of the terms or conditions of this Agreement, Licensee is not permitted to install and/or use the Software, Product and Documentation. If Licensee has any questions or comments concerning this Agreement Licensee may contact MICROSURVEY at West Kelowna, BC Canada.

Title to Product and Rights to Use Software and Documentation. Title to the Product and the rights to use the Software and Documentation are conditioned upon the payment of the required purchase price and any applicable license and maintenance fees and Licensee’s acceptance of the terms and conditions of this Agreement.

License.

License Grant. MICROSURVEY hereby grants Licensee a nonexclusive, non-transferable, non-sublicensable right to (i) install and use one copy of the Software and Documentation on the Product and one copy for use on no more than one personal computer simultaneously, and , (ii) to access the stored measurement data generated by the Software, for Licensee’s own internal business purposes and in accordance with the terms and conditions of this Agreement. MICROSURVEY also hereby grants Licensee a nonexclusive, non-sublicensable right to reproduce the Documentation, solely as necessary for Licensee’s internal use of the Product and Software.

Conditions and Restrictions.

The following conditions and restrictions apply to the use of the Product, Software and Documentation:

  1. Licensee shall not, and shall not attempt to, reverse engineer, decompile, disassemble or otherwise attempt to identify the source code of any object code portions of, distribute, modify, encrypt, or create derivative works of the Software, Documentation, and/or any stored measurement data in whole or in part, including, but not limited to, stored measurement data.
  2. Licensee shall not use the Software or Documentation for any purpose not expressly permitted by this Agreement.
  3. Licensee shall not copy any part of the Software, except that Licensee may make one copy of the Software for backup purposes only.
  4. Licensee agrees not to remove or destroy any copyright, logo, trademark, trade name, proprietary markings, or confidentiality legends placed upon or contained within the Software or Documentation. Licensee shall not, and agree not to assist others to, circumvent or disable the license provisioning technology for the Software.
  5. Licensee’s license to the Software under this Agreement continues until it is terminated by Licensee or MICROSURVEY. Licensee may terminate the license by discontinuing use of all or any of the Software and by destroying all Licensee copies of the Software and Documentation.
  6. This Agreement will terminate automatically if (x) Licensee violate any of the terms or conditions of this Agreement, (y) MICROSURVEY publicly posts a written notice of termination on its website www.microsurvey.com (that, or any successor site, the “Site”); or (z) MICROSURVEY revokes this Agreement or issues a new agreement in writing or electronic form and conditions Licensee continued use of the Software upon acceptance of the new agreement.

Ownership. All rights, title and interest in and to the Software and Documentation including, without limitation, all copyright, patent, trade secret and other intellectual property rights shall at all times remain the property of MICROSURVEY, it licensors, or its suppliers, as applicable. The Software and Documentation are licensed, not sold, and are protected by copyright and other intellectual property laws and treaties. Licensee shall take appropriate steps reasonably calculated to notify others of MICROSURVEY and its licensor’s/suppliers’ ownership of the Software and Documentation.

Warranty. MICROSURVEY warrants that the Product will, for 90 days after the Effective Date (the “Warranty Period”), substantially conform to the Documentation; provided, that Licensee must notify MICROSURVEY in writing of any breach of the foregoing warranty within the Warranty Period. For any breach of the foregoing warranty reported during the Warranty Period, MICROSURVEY will use reasonable efforts to promptly correct such defect without further charge. If MICROSURVEY is unable to correct such defect, then MICROSURVEY will refund the license fees paid for the Product. This represents MICROSURVEY'S exclusive liability and Licensee’s sole and exclusive remedy in the event of a breach of the foregoing warranty.

Warranty Disclaimer. EXCEPT AS DESCRIBED IN SECTION 4 (WARRANTY), MICROSURVEY HEREBY DISCLAIMS ALL WARRANTIES RELATING TO THE PRODUCT, SOFTWARE, AND DOCUMENTATION, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. MICROSURVEY DOES NOT REPRESENT THAT THE OPERATION OF THE PRODUCT AND/OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MICROSURVEY MAKES NO WARRANTY THAT: (A) OPERATION OF THE PRODUCT AND/OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, (B) THE PRODUCT AND/OR SOFTWARE WILL MEET LICENSEE SPECIFIC NEEDS, (C) SPECIFIC RESULTS WILL BE ACHIEVED WITH THE PRODUCT AND/OR SOFTWARE, OR (D) ALL ERRORS OR FAILURES WILL BE CORRECTED. IN NO EVENT SHALL MICROSURVEY’S, ITS LICENSORS’, OR ITS SUPPLIERS’ LIABILITY TO LICENSEE FOR THE PRODUCT AND/OR SOFTWARE, WHETHER BASED ON CONTRACT, TORT, WARRANTY, OR ANY OTHER LEGAL THEORY, EXCEED THE AMOUNT OF PURCHASE PRICE PAID FOR THE PRODUCT AND ANY RELATED LICENSE OR MAINTENANCE FEES PAID BY LICENSEE.

Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROSURVEY, ITS LICENSORS, OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR OTHER DATA OR INFORMATION, OR FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT AND/OR SOFTWARE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF MICROSURVEY, ITS LICENSORS OR ANY SUPPLIERS, AND EVEN IF MICROSURVEY OR ANY OF ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.

Limitation of Liability. NOTWITHSTANDING ANY DAMAGES THAT LICENSEE MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF MICROSURVEY AND ANY OF ITS LICENSORS OR SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND LICENSEE EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE PRODUCT AND ANY RELATED LICENSE OR MAINTENANCE FEES PAID BY LICENSEE. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 5 AND 6 ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. LICENSEE ACKNOWLEDGES THAT (A) THE PROVISION OF THE PRODUCT AND SOFTWARE IS CONDITIONAL UPON MICROSURVEY EXCLUDING AND/OR LIMITING ITS AND ITS LICENSORS’ AND SUPPLIERS’ LIABILITY TO LICENSEE IN ACCORDANCE WITH THIS AGREEMENT, AND (B) THE EXCLUSIONS AND LIMITATION CONTAINED IN THIS AGREEMENT ARE FAIR AND REASONABLE IN ALL THE CIRCUMSTANCES KNOWN AT THE DATE OF THIS AGREEMENT.

Indemnification. Licensee agrees to defend, indemnify and hold MICROSURVEY, its affiliates, distributors, licensors, and suppliers harmless from and against any and all losses, damages, costs or expenses (including reasonable attorney's fees) (a) suffered by Licensee related in any way to the Product, Software, or this Agreement and/or (b) related to any claim or demand made by any third party in connection with or arising out of (i) any breach by Licensee of any of the terms and conditions of this Agreement, (ii) Licensee use or misuse of the Product or Software, (iii) Licensee violation of applicable laws, and/or (iv) Licensee violation of the rights of any other person or entity. MICROSURVEY reserves the right, at its own expense, to assume the exclusive defense and control of (but not liability for) any matter otherwise subject to indemnification by Licensee. Licensee will be liable to MICROSURVEY for reasonable attorney's fees in any such case.

Support

General. Except as set forth in Section 9(b) (Website Support) and 9(c) (Contract Support), MICROSURVEY shall have no obligation under this Agreement to maintain or support the Software. Licensee may contact MICROSURVEY to inquire about MICROSURVEY’S commercially available support and maintenance services provided pursuant to separate agreements. This Agreement shall not obligate either party to enter into any such separate agreement. Any updates or error corrections to the Software that may be provided to Licensee from time-to-time, if any, shall be deemed Software hereunder and shall be licensed to Licensee under the terms and conditions of this Agreement. If any such updates or error corrections are made available to Licensee, then Licensee shall promptly (a) implement such updates or error corrections, (b) cease using the earlier versions without such updates or error corrections, and (c) make such updates or error corrections available to the users of the earlier versions. Licensee shall be solely responsible for procuring all hardware and third-party software necessary to operate the Software.

Website Support. MICROSURVEY will use reasonable commercial efforts to host and maintain a web site (the “Support Site”) for the Software during its commercial life (as reasonably determined by MICROSURVEY) that will include some or all of the following features:

  • A “Frequently Asked Questions” section with answers to common questions about the Software.
  • A searchable “Helpdesk” section with general user instructions and information about the Software.
  • A link to allow end users of the Software to download any bug fixes, error corrections or other updates to the Software that MICROSURVEY may make available through the Site.
  • “Contact MICROSURVEY” electronic response capability. MICROSURVEY will use reasonable commercial efforts to respond within two (2) business days to a customer inquiry received via this system. Answers to such inquires will be added to the FAQ’s, as appropriate.

Contract Support. Upon mutual agreement in writing between Licensee and MICROSURVEY, or between Licensee and one of MICROSURVEY’S authorized reseller’s, MICROSURVEY will provide contracted support services to Licensee as may be agreed upon and related to the Software.

Term and Termination.

This Agreement is effective until terminated. Licensee may terminate this Agreement at any time, with or without cause, upon notice to MICROSURVEY. MICROSURVEY may terminate this Agreement for Licensee’s breach of this Agreement.

Upon termination of this Agreement, Licensee shall immediately cease all use of the Software and Documentation and return to MICROSURVEY all copies of thereof within five (5) days after such termination. Upon MICROSURVEY’S request, Licensee will certify in writing to MICROSURVEY that all such copies have been returned to MICROSURVEY. The following provisions of this Agreement shall survive termination or expiration of this Agreement: Sections 2(b) (Restrictions), 3 (Ownership), 5 (Warranty Disclaimer), 6 (Exclusion of Damages), 7 (Limitation of Liability), 10 (Term and Termination), and 11 (General).

General.

Assignment. MICROSURVEY may assign this Agreement without notice to Licensee. Licensee shall not assign this Agreement or transfer any of the rights, duties, or obligations arising under this Agreement without the prior written consent of MICROSURVEY. This Agreement shall be binding upon, and inure to the benefit of, the permitted successors and assigns of the parties thereto.

Amendments; Modifications. Notices of changes to this Agreement or other matters may be made to Licensee by displaying notices or links to notices to Licensee generally on the Site.

Governing Law; Forum; Attorney’s Fees, Injunctive Relief. The terms of this Agreement shall be construed and governed exclusively by the laws of the province of British Columbia, excluding the application of its conflict of law provisions and rules. Any dispute, controversy or claim between the parties arising out of or relating to this Agreement or a breach of this Agreement shall be settled pursuant to the terms of this Section 11(c) by arbitration before three neutral arbitrators (selected from a panel of persons having experience with and knowledge of the computer business), provided at least one of which arbitrators shall be an attorney, and administered by the Arbitrators Association of British Columbia in accordance with its Commercial Arbitration Rules in Kelowna, British Columbia. Any provisional or equitable remedy which would be available from a court of law shall be available from the arbitrators to the parties. Judgment upon the award of the arbitrators may be enforced in any court having jurisdiction thereof. The parties hereby consent to the non-exclusive jurisdiction of the courts of the Province of British Columbia for any action (i) to compel arbitration, (ii) to enforce the award of the arbitrators or (iii) prior to the appointment and confirmation of the arbitrators, for temporary, interim or provisional equitable remedies, and to service of process in any such action by registered mail, return receipt requested, or by any other means provided by law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

Severability. The illegality, invalidity or unenforceability of one or more provisions of this Agreement shall not affect the legality, validity or enforceability of any other provision, and this Agreement shall be construed in all respects as if such illegal, invalid or unenforceable provision were deemed amended to achieve as near as possible the same economic effect as the original in a legal, valid and enforceable manner if possible.

Further Relationships. Neither party is obligated by this Agreement to enter into any further business relationship after the termination or expiration of this Agreement.

Notices. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, when received if by nationally recognized courier, or three days after being sent by postage prepaid, certified or registered Canadian Mail, as applicable, to MICROSURVEY at MICROSURVEY’s address as set forth herein or to Licensee at the address that Licensee provided upon entering into this Agreement, or such other address as a party last provided to the other by written notice.

Independent Contractor. MICROSURVEY and Licensee are independent contractors. No partnership, joint venture, or other joint relationship is created by this Agreement.

Entire Agreement. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior representations, discussions, negotiations and agreements. All changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on the Site, or by electronic or conventional mail, or by any other means by which Licensee may obtain notice thereof. Use of the Product and/or Software after such notice constitutes acceptance of such changes, modifications or additions. This Agreement may be amended at any time by mutual agreement of the parties.

Internet-Based Services

Consent for Internet-Based Services. Certain Software features connect to MICROSURVEY or service provider computer systems over the Internet. In some cases, you will not receive a separate notice when they connect. By using these features, you consent to the transmission of this information. MICROSURVEY does not use the information to identify or contact you. For more information, see http://www.microsurvey.com/MicroSurvey-Privacy-Policy.htm

Computer Information. The Software features use Internet protocols, which send to the appropriate systems computer information, such as your Internet Protocol address, the type of operating system, name and version of the software you are using, and the language code of the device where you installed the software. MICROSURVEY uses this information to make the Internet-based services available to you.

 
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