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End-user License Agreement

 

Cancms EXTENSION END USER LICENSE AGREEMENT (“AGREEMENT”) PLEASE READ THE FOLLOWING

TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE.

By downloading or using the Software you agree to this Agreement on your behalf as

an individual and on behalf of your employer or another entity with which you are

associated, if such employer or entity has not previously accepted these terms

(you and such employer or other entity, collectively, the “Licensee”) and agree

to be bound by its terms and conditions; and b) you are accepting electronic delivery

of the Software. If the Licensee has not previously accepted these terms, you represent

and warrant that you have full legal authority to bind the Licensee to these terms and

conditions. This Agreement, is a legal agreement between the Licensee and Cancms

1. This Agreement constitutes the entire agreement concerning Licensee’s use of the Software.

This Agreement replaces and supersedes any verbal understandings, written communications and representations, including but not limited to purchase order documentation, except those contained in a subsequent writing, including but not limited to a license agreement with terms for support and an accompanying ordering schedule, in all cases signed by an authorized Cancms representative.

1.1. Subject to Licensee’s compliance with the terms and conditions of this Agreement and any applicable payment terms, Cancms grants Licensee a non-transferable, non-assignable, non-sublicensable, worldwide license solely during the Term to use,

modify and create derivative works in respect of the Software, solely for internal purposes, in accordance with the Software’s technical documentation.

1.2. Cancms  shall provide to Licensee an initial copy of the Software, including the associated technical documentation, for use by Licensee in accordance with this Agreement. Licensee is authorized to make a reasonable number of copies of the

Software as it requires for purpose of exercising its rights under this Agreement.

1.3. Licensee acknowledges that portions of the Software are also freely available to the public under Cancms ’s open source version of the Software, subject to certain conditions, with limited warranties and other limited assurances, and without service

or support. As an express condition for the license granted hereunder, Licensee agrees that any use of such open source versions of the Software, whether used on a production or non-production Server, shall be deemed use of the Software for purposes of the calculation of fees payable under the Agreement.

2. License Exclusions

2.1. Except as expressly authorized herein, Licensee shall not:

a. distribute, sublicense, disclose, market, rent, lease, remote computing services, networking, batch processing or transfer to any third party the Software or permit any person or entity to have access to the Software by means of a time sharing, remote computing services, networking, batch processing, service bureau or time sharing arrangement;

b. export the Software in violation of export administration regulations.

3. Fees and Payment Terms Licensee shall pay Cancms the fees specified by Cancms . All fees shall be due and payable within fourteen (14) days of the date of invoice. Licensee is responsible for all taxes concerning the Software and/or services, excluding taxes based on Cancms ’s income. Overdue payments shall bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed under applicable law.

4. Title and Protection

4.1. Cancms retains title to all portions of the Proprietary Material and any copies thereof. Licensee agrees to maintain strict controls to ensure that such materials are treated confidentially and safeguarded with at least the same degree of care that it takes to protect its own information of a similar nature, which in no event shall be less than a reasonable degree of care, and shall not disclose the Proprietary Material to anyone other than those of its employees or consultants under nondisclosure obligations, having a need to know for purposes consistent with this Agreement. Licensee shall affix, to each full or partial copy of the Proprietary Materials or any portion thereof made by Licensee, all copyright and proprietary information notices as were affixed to the original. The obligations set forth in this Section shall survive termination of this Agreement.

5. Default and Termination

6.1. An event of default shall be deemed to occur if: (i) Licensee fails to perform any of its obligations under the Sections entitled “License Exclusions” or “Title and Protection”; or (ii) either party fails to perform any other material obligation under this Agreement and such failure remains uncured for more than thirty (30) days after receipt of written notice thereof.

6.2. If an event of default occurs, the non-defaulting party, in addition to any other rights available to it under the law, may terminate this Agreement and all licenses granted hereunder by written notice to the defaulting party. Remedies shall be cumulative and

there shall be no obligation to exercise a particular remedy.

6.3. Within thirty (30) days after termination of the Software license or expiration of the Term, Licensee shall certify in writing to Cancms  that Licensee has ceased use of the Software and that all copies of the Software in any form, including partial copies within

modified versions, have been destroyed.

7. Warranty

7.1. Warranty for Software. Cancms  warrants for a single period of thirty (30) days commencing upon Cancms ’s electronic delivery of the Software to Licensee that the Software will perform the functions described in the specifications contained in the documentation provided with the Software. Cancms  will undertake reasonable efforts to correct any reported error in accordance with any terms and conditions of support purchased by Licensee. Cancms  does not warrant that the Software will meet Licensee’s requirements, that the Software will operate in the combinations which Licensee may select for use, that the operation of the Software will be uninterrupted or error-free, or that all error conditions will be corrected. EXCEPT AS PROVIDED IN THIS SECTION ALL SOFTWARE PROVIDED HEREUNDER IS PROVIDED “AS IS”.

7.2. DISCLAIMER. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7 ARE THE ONLY WARRANTIES MADE BY Cancms WITH RESPECT TO THE SOFTWARE

PROVIDED BY Cancms . Cancms MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND, SPECIFICALLY,

MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Cancms ’S EXPRESS WARRANTIES SHALL NOT BE ENLARGED,

DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, Cancms  RENDERING TECHNICAL OR OTHER ADVICE OR SERVICE IN

CONNECTION WITH THE SOFTWARE.

8. Limitation of Liability

8.1. LIABILITY EXCLUSIONS. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR (i) THE TORT OF FRAUD OR DECEIT (ii)

DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY’S NEGLIGENCE OR (iii) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.

SAVE FOR THE FOREGOING, NEITHER PARTY ACCEPTS AND HEREBY EXCLUDES ANY LIABILITY FOR LOSS OF OR DAMAGE TO LICENSEE’S TANGIBLE PROPERTY OTHER

THAN THAT CAUSED BY ITS NEGLIGENCE AND HEREBY EXCLUDES ANY OTHER LIABILITY FOR NEGLIGENCE ARISING PURSUANT TO THE TERMS OF THIS AGREEMENT.

UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR: LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF CONTRACTS; LOSS OF THE USE OF MONEY;

LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; OR CONSEQUENTIAL

OR INDIRECT LOSS OR SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, FOR THE AVOIDANCE OF DOUBT, WHERE SUCH LOSS OR DAMAGE IS ALSO OF A CATEGORY OF LOSS OR

DAMAGE ALREADY LISTED) WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF LICENSEE OR ANY OTHER PARTY ARISING OUT OF ANY BREACH OR FAILURE OF

EXPRESS OR IMPLIED WARRANTY CONDITIONS OR OTHER TERM, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, OTHER LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE

ITS ESSENTIAL PURPOSE, OR OTHERWISE.

8.2. LIABILITY CAP. NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, IN NO EVENT WILL Cancms

BE LIABLE FOR DAMAGES, RESTITUTION OR LOSSES, THAT EXCEED, IN THE AGGREGATE, FOR EACH RESPECTIVE BREACH OR SERIES OF RELATED BREACHES, THE AMOUNT OF FEES PAID BY

LICENSEE FOR THE SOFTWARE LICENSE IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH DAMAGES OR LOSSES OCCURRED.

9. Support Services Terms and Conditions Cancms will provide support services to help install and use software in limited manner and you might be charged.

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