Software License Agreement
Software License Agreement
“Agreement” means this Software License Agreement.
“Documentation” means the reference and operating/maintenance manuals, and any other documentation that ProSlide publishes relating to the Software.
“HMI” means human machine interface.
“ProSlide” means ProSlide Technology Inc., 150-2650 Queensview Drive, Ottawa, ON K2B 8H6, together with its affiliates in various countries.
“ProSlide Water Ride(s)” means any ProSlide water ride and related equipment that may contain Software of any kind.
“Software” means any executable machine code, firmware, embedded software, binary code, source code, object code and any other computer information incorporated into ProSlide Water Ride(s); all setup, installation and configuration software; together with any related software downloaded by You including through any ProSlide services; and includes any and all copies, modifications, updates, upgrades, enhancements and new releases of the Software. This definition of Software excludes any open source software.
“Substantial Completion” is achieved following (a) a water ride(s) passing the site acceptance test; and (b) ProSlide’s issuance of an acceptance test certificate indicating that the water ride(s) operates according to ProSlide specifications and meets the design intent.
“Warranty Period” means twelve (12) months from the date the Software is (a) installed and configured by a ProSlide employee on the ProSlide Water Ride(s); and (b) is deemed to have reached Substantial Completion.
“You” and “Your” refers to any person or entity that acquires or uses the Software or Documentation.
2.1 ProSlide grants to You a non-exclusive, non-transferable, non-assignable license to use the Software and Documentation solely for the following purposes:
(a) to install and operate the Software on one HMI only for use with ProSlide Water Ride(s), as per the specifications set out in the Documentation;
(b) to make one copy of the Software solely for back-up purposes;
(c) use the Documentation to assist You with the operation of the ProSlide Water Ride(s) and/or Software; and,
(d) to make a reasonable number of copies of the Documentation.
3.1 The Software and Documentation contain valuable patent, copyright, trade secret, trademark, and other proprietary rights of ProSlide and its suppliers. ProSlide and its suppliers reserve all such rights. No title to or ownership of the Software or Documentation or any right therein other than expressly set out herein is transferred to You. You will not infringe any proprietary right of ProSlide or its suppliers and will take appropriate steps for the protection of such rights. You will not remove, obscure or alter any notice of patent, copyright, trademark, trade secret or other proprietary rights relating to or appearing anywhere on any of the Software or Documentation, irrespective of whether any of the foregoing is registered or unregistered.
Third Party and Open Source Software
4.1 ProSlide warrants that the Software will perform substantially in conformance with the Documentation during the Warranty Period. ProSlide does not warrant that the Software will be uninterrupted or error-free or that defects will be corrected.
4.2 In the event that during the Warranty Period the Software fails to perform substantially in accordance with the Documentation, materially affects safety or service and/or prevents beneficial use of the Software, subject to Your prompt notice of non-conformity to ProSlide, ProSlide will use commercially reasonable efforts to correct the problem within a reasonable period of time. ProSlide shall have the right to inspect and test the Software to determine, in its reasonable opinion, whether the nonconformity is covered under the Software warranty. If ProSlide is unable to resolve the problem, ProSlide will in its sole discretion, either: (a) replace or update the Software (including the application of related and available bug fixes), or (b) install a new release of the Software when it becomes generally available. The foregoing is ProSlide’s entire liability and Your sole and exclusive remedy under the above limited warranty.
4.3 The limited Software warranties provided to You under this Agreement shall become void if one of the following occurs: (a) the Software is not used properly in accordance with the Documentation or is otherwise abused, misused, damaged, vandalized or negligently serviced, (b) Your improper maintenance or operation, (c) the Software is installed, integrated or used in combination with products that are not approved by ProSlide, (d) any unauthorized modification, or (e) You breach a material term of this Agreement.
4.4 For clarity, all of ProSlide’s warranty obligations under this Section are subject to Your ongoing obligation, at Your own cost and expense, to perform ordinary and necessary inspections and maintenance of the ProSlide Water Ride(s) as prescribed by in the Documentation, outlined in ASTM F24 and F2376 (North American versions) and what is normal, usual and customary industry practice. You hereby acknowledge Your obligations as expressed hereunder and that Your failure to perform such ordinary and necessary inspections and maintenance, as set out above, shall void the warranty as a whole under this section and render ProSlide free from any obligations thereon.
4.5 TO THE FULL EXTENT PERMITTED BY LAW, PROSLIDE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, TERMS AND CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT AND THIS IS SO ACKNOWLEDGED BY YOU.
4.6 All limited warranties are void if failure of the Software has resulted from Acts of God, accident, abuse, misapplication or electrical surge or any other cause beyond ProSlide’s control.
4.7 ProSlide does not warrant or represent that the Software is immune from fraudulent or unauthorised intrusion or use (including its use to interconnect to long distance networks, computer virus and/or other malicious code of whatever nature) and accordingly ProSlide will not be liable for any loss, damage, cost or expense directly or indirectly occasioned thereby.
5.1 You agree to comply fully with all relevant export laws and regulations of Canada, United States, and Europe and any other applicable export laws and regulations to ensure that the Software is not exported directly, or indirectly, in violation of such laws.
6.1 The general contract provisions regarding governing law, assignment, warranties and exclusion of implied warranties, liability, indemnification, interpretation and language are incorporated by reference from the Executed Agreement (defined below).
6.2 In the event of any conflict between the terms of this Agreement and a fully signed contract governing the sale to You of ProSlide Water Ride(s) (the “Executed Agreement”), the terms and provisions of the Executed Agreement will govern.
CAREFULLY READ THE FOLLOWING AGREEMENT. INSTALLATION OR USE OF THE SOFTWARE CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT PROMPTLY REMOVE THE SOFTWARE AND ALL COPIES FROM ALL PROSLIDEWATER RIDE(S). LAWFUL USE OF THE SOFTWARE IS CONDITIONAL UPON YOUR COMPLIANCE WITH THE TERMS OF THIS AGREEMENT.
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