SDS RiskAssist™ SOFTWARE LICENSING AGREEMENT
Latest Revision – October 27th, 2019
THIS AGREEMENT (the “Agreement”) is between Rillea Technologies Inc., a corporation duly incorporated pursuant to the laws of Ontario (“Rillea”), and the “Client” as outlined in the Client’s Order. The Order executed by the Client further specifies the terms of the License provided herein, and forms a part of this Agreement.
WHEREAS, Rillea has developed and created a web application called SDS RiskAssist™ (the “Software”);
AND WHEREAS the Software is designed to a) host (material) safety data sheets ((M)SDS) provided by the Client, b) produce summaries (“Summaries”), which are intended to identify the potential risks associated with hazardous chemicals by: (i) reading safety data sheets (“SDSs”); and (ii) selecting definitions and terminology found in the United Nations Globally Harmonized System of Classification and Labelling of Chemicals (6th ed.), the Canadian Hazardous Products Act and other applicable Regulations, as well as the Chemical Abstract Service; and c) allowing the Client to add additional information through a multi-stage tagging system;
AND WHEREAS, the Client desires to utilize the Software subject to the terms of the Order. Where the “Order” refers to the Rillea approved form or online subscription process by which the Client agrees to subscribe to the Software.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by Rillea and the Client (individually a “Party” and collectively the “Parties”), the Parties agree as follows:
a. The Software, any third party software, documentation, interfaces, content and any data accompanying the Software (the “Content”) are licensed as set out below, not sold to the Client by Rillea for use only under the terms of this Agreement. Rillea (or third parties, where applicable) retains sole ownership over the Content and reserves all rights not expressly granted to the Client.
b. Rillea, at its sole discretion, may make available future upgrades to the Software for the Client’s use. The terms of this Agreement will govern any Software upgrades or updates provided by Rillea that replace and/or supplement the original Software, unless such upgrade or update is accompanied by a separate license in which case the terms of that license will govern.
a. Subject to the terms of this Agreement and the executed Order, Rillea hereby grants to the Client, for the term as specified in the Order, a revocable, non-exclusive, non-assignable and non-sublicensable license to access the Software (the “License”) . The Software is web-based and can be accessed via Google Chrome Version 58.0.3029.110, Safari 602.1 or an equivalent internet browser.
b. This License is expressly limited to the number of Summaries, simultaneous Administrators and Editors as specified in the Order. For the purposes of this Agreement, “Administrators” are individuals that are authorized to create new accounts for Editors and Readers; “Editors” are individuals that are authorized to: (i) add and/or link information to data sheets; and (ii) read Summaries; and “Readers” are individuals who are authorized to read Summaries.
c. The Client shall not:
i. make any copies, archival or otherwise, of the Software;
ii. analyze, decompile, or reverse engineer or cause a third party to analyze, decompile or reverse engineer the Software for any purpose whatsoever; or
iii. use the Software in any manner other than as described herein.
d. The Client may request to sublicense to third parties the License and permission may be granted or denied for any reason or no reason at Rillea’s sole and absolute discretion. If approved by Rillea, the Client may only sublicense any rights granted under this Agreement once they have received a written and executed letter of approval from Rillea.
This Agreement shall be effective as of the Access Date as specified on the Order and shall extend for the License Term specified on the Order (the “Term”), unless superseded by a new agreement.
The Client shall pay the amounts specified in the Order, in accordance with the payment terms specified in the Order.
a. The Client acknowledges that the Software is the proprietary and confidential property of Rillea. The Client shall not, without the prior express written consent of Rillea, during the Term of this Agreement and indefinitely thereafter, disclose or reveal to any third party or utilize for its own benefit in a way other than pursuant to this Agreement, any component of the Software provided by Rillea, provided that such information was not previously known to the Client or to the general public.
b. The Client agrees to take all reasonable precautions to preserve the confidentiality of the Software and shall take steps to ensure that its employees will similarly preserve this information against third parties.
c. The provisions of section 5 shall survive termination of this Agreement.
6. SET-UP AND TRAINING
a. Rillea shall provide access to the Software on the date specified in the Order. Rillea shall provide the Client with user identifications and passwords to the Web Domain for the specified number of Administrators in the Order. User identifications and passwords for Editors and Readers will be set by the Client’s Administrators.
b. If requested by the Client, Rillea shall provide training to employees or agents of the Client in relation to the proper use of the Software to the extent provided in the Order.
c. The Client may request additional training or consulting support from Rillea which will require an additional Order and the associated fees.
d. For the purposes of this Agreement, “System Requirements” refer to an accessible mobile or desktop device that is capable of accessing the internet and possesses an equivalent internet browser as specified in section 2(a), and as further specified in the Order, where applicable. The Client shall ensure that they are in possession of the Hardware at the time of installation of the Software and that it meets the System Requirements.
a. Rillea represents and warrants that it has no actual knowledge that the Software infringes any valid rights of any third party. Rillea further represents and warrants that in the event it becomes aware that the Software does infringe valid rights of a third party and/or Rillea receives a legally valid order to “cease and desist” its use of the Software, or any portion thereof, it will advise the Client as soon thereafter as reasonably possible of the Software infringement. Upon being advised of any infringement of third party rights, the Client will have the right to immediately terminate this agreement in its sole discretion, clause 10 notwithstanding.
b. The Client represents and warrants that their use of the Software will only be for purposes that are permitted by: (i) this Agreement; and (ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
c. Rillea believes that any information contained or provided by the Software is correct. However, the Software is provided ‘AS IS’ AND ‘AS AVAILABLE’ FOR USE, WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE WHATSOEVER. RILLEA MAKES NO WARRANTY THAT THE PRODUCTS WILL PERFORM WITHOUT INTERRUPTION OR BE FREE FROM ERRORS. RILLEA MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, RELIABILITY, TIMELINESS, USEFULNESS OR COMPLETENESS OF ANY OF THE INFORMATION CONTAINED IN THE SOFTWARE OR ANY ASSOCIATED PRODUCTS PROVIDED BY RILLEA.
a. Rillea may, from time to time at its sole discretion, make improvements or modifications to the Software.
b. Any improvements, customizations, or modifications to the Software requested by the Client may be made by Rillea, at Rillea’s sole discretion, for the fee specified in the original or subsequent Orders.
9. OPEN SOURCE SOFTWARE
Certain portions of the Software are not licensed under the terms of this Agreement, but are instead licensed under the terms of open source licenses (the “Open Source Components”). Open Source Components applicable to the Software are listed in Schedule “A”. Your use of each Open Source Component is subject to the terms of each applicable license. You must agree to the terms of each applicable license listed in Schedule “A” prior to using the Software.
a. The following termination rights are in addition to the termination rights that may be provided elsewhere in the Agreement:
i. Right to Terminate for Breach. Either Party may terminate this Agreement in the event of a breach of any provision of this Agreement by the other Party, provided that the non-breaching Party provides the breaching Party with written notice of such breach and the breaching Party fails to cure such breach within 14 days of receiving said notice.
ii. Rillea’s Right to Terminate Upon Notice. Rillea shall have the right to terminate this Agreement at any time on 30 days written notice to the Client.
iii. The Client’s Right to Terminate Upon Notice. The Client shall have the right to terminate this Agreement at any time, for any reason in its sole discretion, on 60 days written notice to Rillea.
11. POST TERMINATION RIGHTS
a. Upon the expiration or termination of this Agreement, all rights granted to the Client under this Agreement shall forthwith terminate, unless otherwise specified, and immediately revert to Rillea and the Client shall discontinue all use of the Software.
b. Upon expiration or termination of this Agreement, Rillea shall suspend the Client’s access to the Web Domain.
c. The Client will be entitled to repayment of any pre-paid licensing fees proportionate to the amount of time remaining in the current year of the term as specified in the Order, should the termination be for breach or upon Rillea’s notification. Should the Client terminate upon notice, fees paid are non-refundable.
12. LIMITATION OF LIABILITY & INDEMNITY
a. IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF RILLEA AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS TO THE CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND THE CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT PAID BY THE CLIENT TO RILLEA DURING THE TERM OF THIS AGREEMENT FOR USE OF THE SOFTWARE. CLIENT SHALL INDEMNIFY AND HOLD HARMLESS RILLEA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS FROM ALL THIRD PARTY CLAIMS ARISING FROM CLIENTS’ USE OF THE SOFTWARE AND FROM THIRD PARTIES ACCESSING THE SOFTWARE THROUGH CLIENT.
b. IN NO EVENT SHALL RILLEA BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR CAUSED BY USE OF, RELIANCE ON, OR INABILITY TO ACCESS AND USE ANY INFORMATION CONTAINED IN THE SOFTWARE, EVEN IF RILLEA HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
c. Regardless of the form of action, no action arising from the Agreement may be brought by the Client more than twelve (12) months after the cause of action arises.
Notices and payments required to be sent by one Party to the other shall be sent to the address of such Party as provided on the Order.
a. JURISDICTION – This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario.
b. BINDING AGREEMENT – This Agreement shall survive to the benefit of and be binding on the respective successors and permitted assigns of each of the Parties.
c. WAIVER – No express or implied waiver by either Party of any provision of this Agreement or of any breach or default of the other shall be a continuing waiver or be effective unless in writing.
d. SEVERABILITY – Nothing contained in this Agreement is intended to be contrary to any law and this Agreement shall be interpreted to amend any such contradiction to the extent necessary to remove such conflict. If any provision of this Agreement is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of this Agreement shall remain operative and binding on the Parties.
e. ASSIGNABILITY – The License is personal to the Client and may not be assigned by any act of the Client or by operation of law without the written consent of Rillea.
f. NO PARTNERSHIP – Nothing in this Agreement should be interpreted so as to construe that the Parties are partners or have entered into a partnership.
g. CURRENCY – Except as otherwise provided, all monetary amounts referred to in this Agreement are in Canadian dollars.
h. COUNTERPARTS – This Agreement may be executed in any number of counterparts, which together shall constitute the same instrument. Delivery of an executed counterpart of a signature page by facsimile shall be effective as delivery of a manually executed counterpart.
i. INDEPENDENT LEGAL ADVICE – Each Party acknowledges that it has been advised of its right to obtain independent legal advice and that it has either obtained such advice or that it hereby waives any objections or claims it may make resulting from any failure on its part to obtain such advice.
j. DISPUTE RESOLUTION – Any dispute between the Parties arising under this Agreement shall be settled in accordance with this provision. Any Party may submit to the other Party in writing a request for dispute resolution, clearly stating the problem to be settled. The Parties shall then, for a period of seven (7) days, use their best efforts to negotiate a mutually agreeable and amicable settlement of the issue identified (the “Negotiation Period”). If such a solution is not reached within ten (10) days after the Negotiation Period has expired, arbitration will be commenced to resolve the dispute. Such arbitration shall be conducted by a single arbitrator who shall be appointed by agreement between the Parties or, in the absence of agreement, such arbitrator shall be appointed by a Judge of the Ontario Superior Court of Justice upon the application of any of the said Parties (a Judge of the said Court shall be entitled to act as such arbitrator, if he so desires). Any such arbitration shall be held in the City of Belleville, Ontario. The language of the arbitration shall be English. The procedure to be followed shall be agreed by the Parties or, in the absence of agreement, determined by the arbitrator. The arbitrator shall have the power to proceed with the arbitration and to deliver his award notwithstanding the default by any part in respect of any procedural order made by the arbitrator. The arbitration shall proceed in accordance with the provisions of the Arbitration Act (Ontario). It is further agreed that such arbitration shall be a condition precedent to the commencement of any action at law. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. Judgment upon the award rendered by the arbitrator may be entered in a court having jurisdiction. The costs of the arbitrator shall be paid equally by the parties to the dispute, unless otherwise ordered by the arbitrator.
k. ENTIRE AGREEMENT – This written Agreement, the Order and all schedules attached hereto encompass the entire understanding between the Parties with respect to its subject matter and may not be amended unless in writing signed by both Parties.
l. FURTHER ASSURANCES – The Parties agree that each of them shall, upon reasonable request of the other, do or cause to be done all further acts and agree to execute or cause to be executed all further instruments as may be required to effect the intent and purpose of this Agreement.