EULA License Agreement

iBwave Software
End User License Agreement “EULA”

iBwave Solutions Inc.

– IMPORTANT: PLEASE READ CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE –

This is a legal End User License Agreement between the Customer and iBwave Solutions Inc. Carefully read all the terms and conditions of this Agreement prior to Using the Software. By Using all or any portion of the Software, the Customer accepts all the terms and conditions of this Agreement. If the Customer does not agree to all of the terms and conditions of this Agreement the Customer shall not install nor Use the Software. By installing or Using the Software, the Customer indicates acceptance of this Agreement.

1. DEFINITIONS

This “Agreement” or “End User License Agreement” or “EULA” is a legal agreement between the Customer and iBwave for the installation and Use of all or any portion of the Software, the entirety of which is included herein.

“Computer” means an electronic device that accepts information in digital or similar forms and manipulates it for a specific result based on a sequence of instructions.

“Continental Time Zone” means each of the three general time zones that cover i) the Americas; ii) Europe, the Middle East and Africa (‘EMEA‘); and iii) Asia Pacific.

“Customer” or “Licensee” means the person that acquired a license to Use the Software.

“Documentation” means the documentation that describes the function and use of each program in sufficient detail to permit use of the Software.

“Evaluation Version” or “Trial Version” means the evaluation version of a Software.

“iBwave” means iBwave Solutions Inc., a Canadian corporation headquartered in Montreal, Quebec, Canada.

“Software” means any variation of the iBwave DESIGN, iBwave FIELD, iBwave REACH, iBwave VIEWER, iBwave WIFI, DB Editor software products and a trial version of any of those software including but not limited to computer software and associated media, printed materials and documentation, any updates or modified versions, any additional modules or plug-ins, or any additional software provided by iBwave in connection therewith.

“Use” or “Using” means to install (i.e copy on the hard disk) and to use (ie to load into the Computer’s temporary memory), execute or otherwise benefit from using the functionality of the Software.

“Annual Maintenance and Support Agreement or AMS Agreement” means the legal agreement between iBwave and Customer that governs the delivery of maintenance and support services to Customer for the Software. The first (1st) year of the AMS Agreement is included in the purchase price of a license and/or module. The AMS Agreement will renew for a fee for additional terms of twelve (12) months. The AMS Agreement can be found on the iBwave Customer Portal.

2. OWNERSHIP

Customer acknowledges that iBwave and its affiliates own all of the Software, Documentation and intellectual property rights associated with, embodied in, or related to the Software and/or Documentation and, except as expressly set forth in this Agreement, iBwave does not grant any rights or interests in and to the Software or the Documentation. The Software is licensed, not sold. Therefore, the Customer must treat the Software as copyrighted, proprietary material, and the Customer shall not use or copy the Software except as provided for in this Agreement. The Customer agrees that iBwave retains all right, title and interest in and to the Software and Documentation and all copies at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. The Customer agrees to neither own nor hereby acquire any claim or right of ownership to the Software or Documentation or to any intellectual property associated with, embodied in, or related to the Software or the Documentation. The Customer agrees to use reasonable efforts to prevent and protect the contents of the Software from unauthorized disclosure or Use.

The techniques, algorithms and processes contained in the Software constitute trade secrets of iBwave. Customer agrees not to provide or otherwise make available all or any portion of the Software to any third party, and to take all reasonable and necessary measures to protect the confidentiality of the Software and iBwave’s rights therein.

3. SOFTWARE LICENSE

Subject to the terms of this Agreement (including payment of all applicable license fees and other charges) iBwave grants to Customer a non-transferable, non-sublicensable and non-exclusive license to Use the Software on one or more Computers and to permit the pre-assigned users to Use the Software in accordance with the Documentation, solely in accordance with the terms and conditions of this Agreement. Customer may only Use the Software for internal business purpose.

Customer may Use the Software solely as set forth below:

  • (A) If Customer has purchased a Single-User License, then Customer may only install the Software on a single Computer. The Software may only be Used by one pre-assigned user and the Software shall not be shared in any manner. Without limiting the generality of the foregoing, Customer may not use the Software in any remote access environment, virtual private network, virtual machine, Citrix Metaframe, Terminal Server, a network, or any another environment that will permit multiple user access.
  • (B) If Customer has purchased a Shared License, then Customer may install the Software only on five Computers dedicated to five pre-assigned users. The Software may only be Used by one of the pre-assigned user concurrently at any time and such pre-assigned users are located solely in one Continental Time Zone. Customer may not access the Software remotely, and may not install or use the Software in any remote access environment, virtual private network, virtual machine, Citrix Metaframe or Terminal Server, a network, or any other environment that will permit multiple user access.
  • (C) If Customer has purchased a Global License, then Customer may install the Software only on ten Computers dedicated to ten pre-assigned users located in any Continental Time Zone. The Software may only be Used by a one of the pre-assigned user concurrently at any time. Customer may not access the Software remotely, and may not install or use the Software in any remote access environment, virtual private network, virtual machine, Citrix Metaframe or Terminal Server, a network, or environment that will permit multiple user access.
  • (D) If Customer has purchased a Server License, then the Customer may Use the Software within a remote access environment, virtual private network, virtual machine, Citrix Metaframe or Terminal Server, a network or an environment that will permit multiple user access, in any Continental Time Zone, but only by a single user at any time.
  • (E) If Customer has purchased a Floating License, then the Customer may install the Software on an unlimited number of Computers within its licensed organization. The Software may only be Used by a single pre-assigned user at any time from the Customer’s pool of pre-assigned users. Customer may access the Software remotely and may install or use the Software in any remote access environment, virtual private network, virtual machine, Citrix Metaframe or Terminal Server.
  • (F) If Customer was given access to the Evaluation Version, then the Customer may Use the Evaluation Version only on a single Computer, only for the purpose of evaluating the functions and performance of the Software and only for up to 15 days. The Customer acknowledges that the Trial Version displays the number of days left on the start-up screen and prints watermarks.
  • 3.1 Third-Party Licensed Materials. The Software may contain third-party Software that is provided subject to and in accordance with terms that are in addition to or different from the terms set forth in this EULA. In particular, the licensing of iBwave REACH is subject to the terms and conditions found at:

    https://www.infovista.com/sites/default/files/2020-01/global_license_terms_january_2020.pdf

    to which Licensee agrees. Licensee acknowledges and agrees that iBwave Solutions Inc. has no responsibility for, and makes no representations or warranties regarding, such Third-Party Software or Licensee’s use of such Third-Party Software.

4. PROHIBITED USE

Customer shall not:

  • (a) reverse-engineer, alter, decompile, disassemble, unlock, adapt or translate the Software or make any attempt to reconstruct or discover in any way, any source code, object code, programing, or underlying algorithms design structure interoperability interfaces, concepts, underlying ideas of the Software;
  • (b) copy, transfer, rent, lease or sublicense the Software;
  • (c) repackage the Software for sale as a competing product;
  • (d) divulge license number information and does not have the right to distribute the license file;
  • (e) remove any identification markings, including but not limited to copyrights notices and trademarks of the Software;
  • (f) make any modifications or enhancement to the Software;
  • (g) permit other individuals than the pre-assigned Permitted Number to Use the Software;
  • (h) permit concurrent Use of the Software, except as limited by a Shared License;

Customer shall treat the license number as strictly confidential except to iBwave or authorized Software distributor.

5. COMPLIANCE WITH LICENSES.

The Customer must keep records relating to the Software it uses under this Agreement.

iBwave has the right to verify compliance with this Agreement. iBwave may, at its expense, appoint an independent third party or iBwave’s internal auditor to verify compliance with this Agreement. Any such verification shall be conducted upon no less than seven business day notice, during regular business hours at Customer’s offices and shall not unreasonably interfere with Customer’s business activities. If iBwave undertakes verification and does not find unlicensed use, iBwave will not undertake another verification on the same entity for at least one year. If such verification reveals any unlicensed use, Customer shall promptly pay the applicable fees to cover its use within 30 days of invoice date, with such underpaid fees being the license fees as per iBwave’s then-current, country specific, license fee list. If underpaid fees are in excess of five percent (5%) of the value of the fees paid under this Agreement, then Customer shall pay such underpaid fees and iBwave’s reasonable costs of conducting the verification.

6. DISCLAIMER OF WARRANTIES

CUSTOMER ACKNOWLEDGES AND AGREES, THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS”. AND THAT IBWAVE MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND WHATSOEVER WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY, REPRESENTATION OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER SHALL TEST THE SOFTWARE WITH NON CRITICAL DATA BEFORE RELYING ON THE SOFTWARE.

CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS RESPONSIBLE FOR THE COMPATIBILITY OF THE SOFTWARE WITH ANY EQUIPMENT, SOFTWARE SERVICES AND THIRD PARTY EQUIPMENT AND/OR ANY OTHER MATERIALS NOT PROVIDED BY IBWAVE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR DISTRIBUTION WITH ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT, NAVIGATION, COMMUNICATION, OR CONTROL SYSTEMS, DIRECT LIFE SUPPORT MACHINES, WEAPONS SYSTEMS, OR OTHER USES IN WHICH FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

7. LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER IBWAVE NOR ITS AFFILIATES, DISTRIBUTORS, SUPPLIERS OR AGENTS WILL BE LIABLE TO CUSTOMER FOR ANY DIRECT OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUES, SAVINGS, DATA OR USE OR BUSINESS INTERRUPTION) EVEN IF IBWAVE, ITS AFFILIATES’ DISTRIBUTORS, SUPPLIERS OR AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. IBWAVE’S AGGREGATE LIABILITY AND THAT OF ITS DISTRIBUTORS, SUPPLIERS AND AGENTS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE IN THE LAST 12 MONTHS, IF ANY.

8. EXPORT RULES

The Customer agrees that the Software will not be shipped, transferred or exported into any country or Used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software is identified as export controlled items under the Export Laws, the Customer represents and warrants not being a citizen, or otherwise located within, an embargoed nation and he is not otherwise prohibited under the Export Laws from receiving the Software. All rights to Use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.

9. GOVERNING LAW

This Agreement is hereby governed by the laws of the Province of Quebec, Canada. If the Software is licensed for Use in the Province of Quebec, Canada, the parties hereto confirm that they have requested that this Agreement and all related documents be drafted in English (i.e. Les parties ont exigé que le présent contrat ainsi que tous les documents connexes soient rédigés en anglais).

10. NOTICE

THE CUSTOMER ACKNOWLEDGES TO HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. THE CUSTOMER FURTHER AGREES THAT THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN CUSTOMER AND IBWAVE WITH RESPECT TO THE SOFTWARE AND SUPERSEDE ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.