These terms of service (“Agreement”) are effective as of the date when You (as defined in Section 1.1 below) first access or use the Software (“Effective Date”) and constitutes a binding agreement between MAYA HEAT TRANSFER TECHNOLOGIES LTD, a corporation with offices at 1100 Avenue Atwater, Suite 3000, Westmount, Quebec H3Z 2Y4, Canada (“Company”) and “You” or “Customer” (as defined in Section 1.1 below). Each of Company and Customer is referred to individually as a “Party”, and collectively as the “Parties”.
For the purposes of this Agreement, “Software” means the SimForm™ software-as-a-service (or any portion thereof) owned by Company and accessible (in object code format only) at https://cooling.simform.app/, including any updates and upgrades thereto and any related existing technical or end-user documentation.
BY CLICKING AN “I AGREE” OR “I ACCEPT” OR ANY OTHER SIMILAR ICON WHEN PROMPTED TO DO SO AT THE TIME OF USING OR ACCESSING THE SOFTWARE, OR BY ACTUALLY USING, OR ACCESSING THE SOFTWARE, YOU SHALL BE DEEMED TO HAVE IRREVOCABLY AGREED TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU CERTIFY THAT YOU ARE NOT A CONSUMER AND THAT YOU WILL USE THE SOFTWARE SOLELY FOR PROFESSIONAL, COMMERCIAL, INDUSTRIAL OR INSTITUTIONAL USES. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT: (i) REFRAIN FROM CLICKING ON THE “I AGREE”, “I ACCEPT” OR SIMILAR ICON AND/OR (ii) DO NOT USE OR ACCESS THE SOFTWARE.
1. ACCOUNT ACTIVATION AND USE
1.1 Contracting party
As indicated above, the Software is made available for professional, commercial, industrial or institutional use only. If the person registering for a user account (“Registrant”) is acting as a sole proprietorship (e.g., as an unincorporated individual entrepreneur), then “You” and “Customer” refer the Registrant. If the Registrant is signing up for the Software on behalf of his or her employer, then: (a) “You” and “Customer” refer the Registrant’s employer, (b) the Registrant represents and warrants having the authority to bind his or her employer to this Agreement, (c) in the account creation form the Registrant must accurately identity such employer with its legal name or lawful trade name and use his or her employer-issued email address, and (d)as required, the Registrant must provide its employer’s address.
1.2 Account access and use.
As Customer, You are fully responsible for the confidentiality of Your username, password and other access codes (“Credentials”) related to Your account in the Software, and for any action taken under Your account, whether or not authorized by You. Without limiting the foregoing, Customer is responsible for any access to and use of its account by its directors, officers, employees and contingent workers, and for ensuring that all who may access and use the account on its behalf maintain compliance with this Agreement. Company has no obligation to verify the identify or authority of any person using the account, and Company shall not be responsible for any damages, losses or liability to You or anyone else if Credentials are correctly provided by an unauthorized person in accessing and using the Software. Company reserves the right (but shall have no obligation) to suspend or terminate any account activity, username or password that Company reasonably determines may be or have been used by an unauthorized person or for an unlawful purpose. Customer must promptly notify Company if Customer becomes aware of, or reasonably suspects any actual or potential illegal or unauthorized activity or any security breach involving their Credentials or account.
1.3 Hardware and connectivity.
You are solely responsible to procure and maintain all hardware (including any workstation, central processing unit, server, personal computer or other similar device or system) and network facilities necessary to access the Software (“Hardware”). Company shall have no responsibility as it relates to the provision and maintenance of Hardware or Internet connection required for the proper functioning of the Software.
2. GRANT OF RIGHTS
You are hereby granted, for the applicable Term and in the Territory, a personal, non-assignable, non-sublicensable, non-exclusive, revocable, limited license to access the Software through an Internet connection (the “License”), solely for your internal business purposes. For clarity, the Software is made available strictly on a software-as-a-service basis. Company reserves all proprietary rights in and to the Software and You are only being granted limited access and use rights to the Software in accordance with the terms and conditions of this Agreement. No source code, object code or any customization shall be delivered to You pursuant to this Agreement.
The Software is intended for professional, commercial, industrial or institutional purposes only. If the person registering for a user account is acting as a sole proprietorship, then the Customer is that person. In all other cases, the Customer is the business or organization (without limitation, any partnership, limited liability company, corporation, association, trust, joint venture, labor organization, unincorporated organization or governmental authority) that the registrant represents. You hereby warrant that You will not use the Software for personal or consumer purposes.
3. TERRITORY LIMITATION
The Software can only be accessed and used in the country in which Customer has its business address, as provided in association with Customer’s account (the “Territory”). Any access or use of the Software outside of the Territory or in violation of Section 16.7 of this Agreement is strictly prohibited, including, without limitation, in any country where such access or use is prohibited by laws, regulations, order or other restrictions.
4. PROJECTS, CREDIT PURCHASES AND SUBSCRIPTIONS
In order to access and use the Software’s simulation functions and features, You must create at least one “Project”. Each Project allows you to run a limited quantity of simulations, as specified in https://simform.app/en/pricing.
Project creation is subject to the upfront purchase and consumption of “Credits” in accordance with the fees specified in https://simform.app/en/pricing. The number of Credits required to create a Project shall be specified in https://simform.app/en/pricing.
You may purchase a pack of Credits at any time, and/or subscribe to automatically purchase Credits on a recurring basis, in accordance with the pack and/or subscription terms available and the options You select at purchase (or as otherwise agreed upon between the Parties in a separate written agreement).
Subscriptions are billed monthly. The initial term of any subscription shall be fixed to a minimum of three (3) months (three billing cycles). Afterwards, the subscription’s term will continuously renew every month, unless You cancel it. Cancellations will take effect at the end of the current billing period.
Credit purchases are subject to the following conditions:
- Credit purchases are non-refundable.
- You may hold a maximum of 1,200 Credits in Your account at any time.
- Credits will expire if no Project is created during any period of twelve (12) consecutive months after purchase, but Company will send You a reminder in advance.
Company may revise its Credit pricing, the number of Credits required to create a Project and the quantity of simulations allowed in a Project at any time in its discretion, in which case Company will notify You in advance at the email address associated with Your account and indicate the date on which the revisions come into effect. Such revisions will not adversely affect Credits purchased and Projects created beforehand. If You are subscribed to recurring Credit purchases, revisions will apply automatically at the start of the next billing period or at any later date Company may indicate in the notice.
You are responsible for all applicable taxes of any kind, now in force or enacted in the future (collectively the “Taxes”), however designated assessed or levied, including without limitation all value added taxes or goods and services taxes, but excluding taxes based on the net income of Company. All amounts due to Company shall be remitted net of, and You shall be solely responsible for, any tax withholding. If You are required by law to make any income tax deduction or to withhold tax from any sum payable directly to Company hereunder, You shall promptly effect payment thereof, but shall not deduct same from amounts due the Company.
5. TERM AND TERMINATION
This Agreement comes into effect on the Effective Date and shall remain in effect until terminated in accordance with its terms.
This Agreement and the License granted hereunder may be terminated by Company:
- in case of a breach on Your part of this Agreement, by providing You a prior written notice of thirty (30) days specifically identifying the breach, unless You cure the breach within the thirty (30) days cure period; or
- in the event of the termination of an agreement between Company and a third-party licensor for a Third-Party Component (as defined in Section 7.2) that is required for the proper functioning of the Software; or
- for convenience and without cause, by providing with you with prior written notice of ninety (90) days, in which case Company shall refund You for any Credits that are unexpired and unused as of the termination date and such refund shall constitute your exclusive remedy in connection with the termination of this Agreement.
This Agreement and the License granted hereunder may be terminated by You at any time by requesting the deletion of Your account using the designated functionality in the Software. If Your account is deleted, all Credits associated therewith will be permanently invalidated, without refund.
In addition, if the Software or any related Company Intellectual Property (as defined below in Section 7.3) is, in Company’s opinion, reasonably likely to infringe the Intellectual Property of others or does become the subject of any claim for Intellectual Property infringement, Company may, at its option: (a) procure for You, at Company’s expense, the right to continue to use the Software as provided for in this Agreement, (b) replace or modify the Software at Company’s expense so that it becomes non-infringing in Company’s opinion, provided that the replaced or modified Software contains substantially similar functionalities, or (c) terminate this Agreement.
6. AVAILABILITY OF SERVICES
If you are in breach of this Agreement, and that Company reasonably believes that such breach is likely to negatively impact or cause damage to the Software, then Company may suspend Your account and access to the Software immediately, without prior notice.
Company undertakes to use commercially reasonable efforts to provide continuous access to the Software but does not guarantee that it will be continuously available or useable, notably taking into account downtime for planned maintenance work and service interruptions that are beyond Company’s control, including without limitation any increase in activity requiring an unplanned increase in system capacity. Customer is advised to plan its affairs accordingly.
Company will notify You in advance, at the email address associated with Your account, of any downtime that is due to planned maintenance work.
7. OWNERSHIP OF SOFTWARE
The Software and its components are protected by national legislation and international treaties offering protection of Intellectual Property (as defined below in Section 7.3). As between the Parties, Company is, and shall remain, the sole and exclusive owner of all right, title and interest in and to the Software including all related Intellectual Property rights (collectively, the “Company Intellectual Property”). THE SOFTWARE AND ITS COMPONENTS ARE LICENSED NOT SOLD OR LEASED. No property, ownership or real right or interest in the Software or any component thereof, is granted, assigned, conveyed, transferred or sold to You by virtue of this Agreement or otherwise. Your right to use the Software is strictly derived from the limited license granted to You hereunder.
7.2 Third-Party Components
The Software may incorporate third-party software components or other Intellectual Property of third parties licensed to the Company for use in association with the Software (the “Third-Party Components”). To the extent that such Third-Party Components are governed by separate terms and conditions, such terms and conditions are annexed hereto or will be disclosed or made available to you in writing and Your use of the Software shall constitute Your acceptance to be bound by and to comply with all such terms and conditions. The Company represents and warrants having secured sufficient rights to allow You to use the Third-Party Components as integrated into the Software, but excludes and expressly disclaims any other warranty or liability, under any theory of law, related to such Third-Party Components.
7.3 Intellectual Property
For the purposes hereof "Intellectual Property" means (i) all domestic and foreign registered trademarks, unregistered trademarks, certification marks, business names, trade names, brand names, trade dress, logos, slogans, distinguishing guises, business styles, and the goodwill associated with any of the foregoing; (ii) all domestic and foreign copyrights, neighboring rights, database rights and moral rights, whether registered or not; (iii) all domestic and foreign patents and utility models, whether registered or not; (iv) all domestic and foreign maskworks, whether registered or not; (v) all domestic and foreign designs and industrial designs, whether registered or not; (vi) all domestic and foreign integrated circuit topographies, whether registered or not; (vii) for any of the intellectual property covered by (i) to (vi), any and all applications, registrations to issue thereon, and continuations, continuations-in-part, divisions, reissues, extensions and any renewals thereof; (viii) all Confidential Information, proprietary business information and trade secrets including inventions (whether patentable or not), invention disclosures, improvements, discoveries, know-how, ideas, formulas, processes, designs, technical or non-technical data, technology, patterns, devices, methods, techniques, drawings, schematics, financial data, business plans, product plans, uniform standards and specifications, as well as any documentation relating to any of the foregoing; (ix) all privacy, publicity, celebrity and personality rights; (x) all intranets, extranets, domain names, website names, URLs, as well as all website design and content; (xi) computer programs and other software including any of their versions, updates, upgrades, object and source codes, any improvement and related documentation together with all translations thereof; and (xii) any other industrial or intellectual property which could receive protection under any domestic or foreign legislation, as may be amended from time to time.
8. SUPPORT SERVICES
You may submit support requests through the features provided for this purpose in the Software. Company will use commercially reasonable efforts to provide web-based, written support services in connection with the Software, including to respond to Your requests.
9. PROHIBITED USES
- Save and except as expressly allowed in this Agreement, You have no rights with respect to the Company Intellectual Property or any component thereof. Without limiting the generality of the foregoing, You shall not, directly or indirectly:
- sublicense, transfer or otherwise permit any third party to access and/or use the Software;
- work around any technical limitations within the Software or any Third-party Components;
- introduce software or automated agents or scripts to the Software so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Software;
- attempt to access the Software by any means other than through the interface that is provided by Company;
- decompile, transform, disassemble, reverse engineer or otherwise attempt to decrypt or derive the source code, any trade secrets, or any sensitive or proprietary information of, or included in or related to the Software;
- produce or create derivative works, compilations, collective works or any other applications whatsoever from the Software;
- modify, translate, copy, alter, destroy, remove, merge, reproduce, distribute, tamper or use without authorization any part of the Company Intellectual Property, including, without limitation, any copyright, proprietary trademark or legal markings, serial numbers, or other notices placed upon or contained within such Company Intellectual Property;
- use the Software on behalf of third parties;
- rent, resell, lease, give access, share, lend or operate the Software on a time share or service bureau basis, or distribute the Software as part of an ASP, VAR, OEM or other similar arrangement;
- use or access the Software to publish, transfer, display, store, distribute or disseminate or otherwise transmit, load upon or make available anything (including information, files, software, data or other content) that is inappropriate, inaccurate, illegal, profane, defamatory, obscene or indecent, or any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software, program or device that may be damaging, or to damage, misappropriate, hack into or misuse the Software; or
- otherwise use the Software for unlawful, prohibited, illegal, inappropriate, offensive, damaging or otherwise unsuitable purposes, including in connection with activities involving junk email, spamming, hacking, harassment, stalking, threatening or otherwise violating the rights of any person.
10. CONSENT TO DATA AND INFORMATION GATHERING AND USE
10.1 Usage and technical data and information.
You acknowledge, agree and consent to the following: Company has the right and does receive certain data and information from the Software or third-party supplier software, and/or from Your Hardware or software thereon, for various purposes related to Your use of the Software and/or third party supplier software, which may include information such as the identity of a user’s Hardware, account activity, the identity of the operating system, usage information in relation to the Software or third-party supplier software, data identifying the cause of a crash in the Software and information about the license in use, etc. (collectively, “Usage and Technical Data”). You acknowledge, agree and consent to Company: (i) processing Usage and Technical Data for the operation of the Software and the provision of related services, (ii) sharing Usage and Technical Data with its subcontractors for the operation of the Software and the provision of related services (including for redundancy, reliability, disaster recovery, technical support and other similar purposes), and (iii) using relevant usage, performance or technical portions of such data and information on an aggregate or otherwise depersonalized basis: (1) to improve the Software, (2) as part of trends or reports published by Company, and/or (3) for marketing and advertising purposes.
10.2 Customer Data.
Customer authorizes Company to use and process Customer Data (as hereinafter defined) on a confidential basis (in accordance with Section 11) strictly for: (a) the provision of support and maintenance services for the benefit of Customer or (b) Company’s legitimate internal business purposes, such as research and development for improving the Software or developing new software, products or services. “Customer Data” means all data, information, computer files and records originating with Customer and input into the System by or on behalf of Customer and all derivatives thereof created by Customer’s use of the System, including without limitation CAD model files, input parameters, material properties, simulation results, but excluding Usage and Technical Data.
10.3 Personal information.
For the purposes hereof, “Confidential Information” means, with respect to each Party, any information that is marked as confidential by the disclosing Party or that a reasonable Person would understand as being confidential given the context of its disclosure. Without limiting the generality of the foregoing, Confidential Information belonging to Company shall include the Company Intellectual Property, and Confidential Information belonging to Customer shall include Customer Data.
Each Party agrees that the Confidential Information of the other Party to which it may have access in relation to this Agreement shall be kept in strict confidence by it. Said Confidential Information shall not be used or disclosed by the receiving Party or by any of its Representatives, except in accordance with the terms of this Agreement. Each Party agrees that it may only transmit Confidential Information of the other Party to Representatives who: (a) need to know the Confidential Information in relation to the performance of the disclosing Party's obligations under this Agreement; (b) are informed of the confidential nature of the Confidential Information; and (c) agree in writing to be bound by a confidentiality agreement on the same terms as those set forth in this Agreement. Each Party agrees to take all reasonable measures to protect the Confidential Information and Intellectual Property of the other Party, all in the same manner as said Party would for its own Confidential Information and Intellectual Property, but in no event with less than reasonable care.
The confidentiality provisions of this Section 11 will not apply to any Confidential Information that (i) was or becomes generally available to the public other than as a result of disclosure in violation of this Agreement; (ii) becomes available to a Party on a non-confidential basis from a source other than the other Party or it Representatives, provided that such source is not bound by a confidentiality of nondisclosure agreement with such other Party or otherwise prohibited from disclosing such Confidential Information by a legal, contractual or fiduciary obligation towards such other Party; (iii) was in the receiving Party’s possession prior to receipt from the other Party without any obligation of confidentiality; (iv) is independently developed by the receiving Party without the use of the other Party’s Confidential Information; or (v) the receiving Party is required to disclose by a final order of a court of competent jurisdiction, so long as said Party provide the other Party with written notice of the required disclosure promptly upon receipt of notice of the required disclosure so that such other Party may seek a protective order or other appropriate remedy from a court or tribunal before any Confidential Information is so disclosed.
The Parties acknowledge that an award of monetary damages may be inadequate to protect each Party’s interest in its Confidential Information, in the event of a breach of the confidentiality obligations contained in this Section 11. Each Party shall have the right, upon actual or threatened violation of this Section 11, in addition to such other remedies which may be available to it, to seek injunctive relief to prevent such acts or attempts.
12. NO WARRANTY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SUPPORT SERVICES ARE FURNISHED “AS IS”, WITHOUT ANY REPRESENTATIONS, WARRANTIES, RIGHTS, OBLIGATIONS OR CONDITIONS OF ANY KIND. WITHOUT LIMITATION, ANY AND ALL REPRESENTATIONS, WARRANTIES, OBLIGATIONS, RIGHTS OR CONDITIONS OF TITLE, OWNERSHIP, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, QUALITY, WORKMANSHIP, HIDDEN DEFECTS, PEACEFUL ENJOYMENT, SECURITY, DELIVERY AND GOOD STATE OF REPAIR, ARE DENIED, DISCLAIMED AND EXCLUDED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY AND ITS AFFILIATES AND DISTRIBUTORS DENY AND DISCLAIM THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT IT WILL PERFORM OR FUNCTION APPROPRIATELY OR PRODUCE A DESIRED RESULT. IN ADDITION, THE COMPANY DOES NOT OFFER ANY WARRANTY OVER ANY THIRD-PARTY COMPONENTS.
TO THE EXTENT ANY WARRANTY OBLIGATION EXISTS UNDER APPLICABLE LAW NOTWITHSTANDING THE FOREGOING, THE WARRANTY SHALL NOT APPLY: (I) IF YOU USE THE SOFTWARE IN THE CONTEXT OF A PROHIBITED USE; (II) IF YOU USE THE SOFTWARE IN AN ABUSIVE MANNER, OR MISUSE THE SOFTWARE; OR (III) IF THE DEFECT WAS PRIMARILY CAUSED BY AN ERROR, BUG, DEFECT OR FAILURE OF OTHER SOFTWARE USED IN CONJUNCTION WITH THE SOFTWARE, OR BY THE SOFTWARE'S INTERACTION OR USE IN CONJUNCTION WITH PRODUCTS, TECHNOLOGY, SOFTWARE, HARDWARE, EQUIPMENT OR SYSTEMS NOT EXPRESSLY IDENTIFIED IN THE DOCUMENTATION.
13. LIMITATION OF LIABILITY
COMPANY’S SOLE RESPONSIBILITY AND LIABILITY FOR ANY AN ERROR, BUG, DEFECT OR OTHER FAILURE IN THE SOFTWARE OR ANY OUTPUT THEREOF SHALL BE TO TAKE COMMERCIALLY REASONABLE EFFORTS TO CORRECT THE ISSUE AFFECTING THE SOFTWARE. THIS DOES NOT APPLY TO ANY SOFTWARE MADE AVAILABLE FOR TRIAL, TESTING OR DEMONSTRATION PURPOSES, FOR WHICH ANY AND ALL LIABILITY OF COMPANY IS DISCLAIMED AND EXCLUDED.
IN THE EVENT COMPANY IS LIABLE FOR ANYTHING ELSE NOTWITHSTANDING THE FOREGOING LIMITATION, THEN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE MAXIMUM LIABILITY OF Company AND ITS affiliates, Licensors, suppliers, DISTRIBUTORS AND RESELLERS, AS WELL AS THEIR RESPECTIVE directors, officers, EMPLOYEES, CONTRACTORS, SUBCONTRACTOR OR OTHER AGENTS (COLLECTIVELY THE “REPRESENTATIVES”), FOR ALL CLAIMS AND DAMAGES UNDER OR IN RELATION TO THIS AGREEMENT (INCLUDING AS A RESULT OF THE USAGE OR IMPOSSIBILITY TO USE THE SOFTWARE OR ANY THIRD-PARTY COMPONENT OR AS A RESULT OF THE PERFORMANCE OF SUPPORT SERVICES) SHALL BE LIMITED TO YOUR ACTUAL AND DIRECT DAMAGES AND SHALL NOT, UNDER ANY CIRCUMSTANCES EXCEED THE TOTAL AMOUNTS THAT YOU ACTUALLY PAID TO COMPANY AS A LICENSE FEE DURING THE PERIOD OF TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE BREACH OR THE ACT GIVING RISE TO COMPANY’S LIABILITY; PROVIDED THAT Company AND ITS affiliates, Licensors, suppliers, DISTRIBUTORS AND RESELLERS, AS WELL AS THEIR RESPECTIVE representatives SHALL HAVE NO LIABILITY WHATSOEVER UNDER OR IN RELATION TO THIS AGREEMENT, UNDER ANY CIRCUMSTANCES, IN RESPECT OF INCIDENTAL, AGGRAVATED, PUNITIVE, TREBLE, EXEMPLARY, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOST BUSINESS, LOST REVENUE, LOST PROFITS, LOST OPPORTUNITIES OR GAINS, LOST GOODWILL, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, WHETHER DIRECT OR INDIRECT, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IS SUCH DAMAGES WERE REASONABLY FORESEEABLE.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 13 DO NOT APPLY TO: (I) MATERIAL INJURY CAUSED THROUGH AN INTENTIONAL OR GROSS FAULT; OR (II) BODILY OR MORAL INJURY CAUSE TO YOU.
14. CHANGES TO SOFTWARE
Company and its third-party suppliers or licensors reserve the right to modify and update the Software and/or Third-Party Components at any time, and to release updates or new versions of the Software and/or Third-Party Components on an ongoing basis, in their sole discretion, including to address customer needs, competitive demands, changes in applicable law or to otherwise enhance its offerings or adapt it to evolving industry standards and market realities. This Agreement shall apply continuously to all updates and versions of the Software made available to You.
15. CHANGES TO TERMS OF SERVICE
To the extent permissible under applicable law, Company reserves the right to modify this Agreement at any time in its sole discretion, in which case Company will notify You at the email address associated with Your account and indicate the date on which the changes come into effect. The modified Agreement will be posted on Company’s website and/or in the Software with a revised “Last Update” date as indicated below. Your continued use of the Software following the posting of changes or modifications will constitute Your acceptance of such modifications. If You do not accept the modifications, You must stop using the Software and terminate Your account in accordance with Section 5.
16. MISCELLANEOUS PROVISIONS
16.1 Transfer and Assignment.
Company may assign this Agreement, in whole or in part, to any person or entity without Your prior consent, which assignment shall operate novation; You may not assign this Agreement to any person or entity, in whole or in part; this Agreement shall inure to the benefit of and be binding upon the Parties hereto and their permitted assigns.
The provisions of this Agreement regarding restrictions on use, ownership, warranties and disclaimers, exclusions of liability, effects of termination and miscellaneous, and any other provisions which by their nature should survive the termination or expiry of this Agreement, will survive any termination or expiration of this Agreement.
16.3 Entire Agreement.
This Agreement shall constitute the entire agreement between the Parties and supersede any other previous or contemporaneous communications, agreements, representations, or advertising with respect to the matter hereof.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the Parties.
16.5 No Waiver.
No term or provision hereof will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the Party against whom the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of or excuse of any other, different or subsequent breach.
Unless otherwise expressly indicated, all amounts and payments hereunder are expressed and shall be made in US dollars.
16.7 Export Restrictions.
You agree and will ensure that the Software will not be (i) shipped, transferred, exported or re-exported into any country outside the Territory; (ii) sold, transferred or conveyed to anyone; or (iii) accessed or used in any manner prohibited by Canadian and/or United States export laws, regulations and restrictions, unless a proper permit or license has been obtained.
16.8 US Government Entities.
If You are part of a US Government entity, You are advised that the Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is a “commercial computer software” and includes “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252-227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III) as applicable, the Software is provided to You (a) only as a commercial item and (b) any use, duplication, or disclosure thereof is subject to restrictions as set forth in this Agreement.
16.9 Independent Contractors.
Each Party is an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture, mandate, partnership, principal-agent or employment relationship between the Parties. No Party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other and neither shall have any power or authority to bind the other or to assume or create any obligation or responsibility express or implied on the other’s behalf or in its name, nor shall either represent to anyone that it has such power or authority.
16.10 Applicable Law and Jurisdiction.
This Agreement shall be governed by the laws in force in the Province of Quebec, Canada, without regard to its conflict of law rules. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The courts located in the city of Montreal, Province of Quebec, Canada, shall have sole and exclusive jurisdiction over any action, claim, demand, proceeding or lawsuit whatsoever arising under or in relation to this Agreement or its subject matter, except that Company may seek injunctive relief or any other equitable remedy with respect to any violation of this Agreement in any appropriate jurisdiction.
Should you have any questions concerning this Agreement or should you want to contact Company, please write to:
MAYA HEAT TRANSFER TECHNOLOGIES LIMITED
1100 Avenue Atwater, Suite 3000, Westmount, Quebec, Canada, H3Z 2Y4
Last update: 2023-02-09.