Last Updated: 2019.01.01
1. ACCEPTANCE
This software end user license agreement (the “Agreement”) is between you, whether a natural person or other entity, (“You” or “Your”) and AJ Tek Corporation (“AJ Tek”, “We”, “Our” or “Us”) and pertains to the software, its components, features, enhancements, updates and modifications (collectively the “Software” or “Suite”) and any related services (“Services”) provided by AJ Tek under this Agreement.
For greater clarity, “You” or “Your” refers to the original and first user – whether a natural person or a business, organization, government, or other entity – who lawfully acquires the Software or Services directly or indirectly from AJ Tek or from an entity authorized by AJ Tek.
By purchasing, downloading, accessing, installing, facilitating the installation, clicking ‘I Agree’, or using the Software or Services (or allowing or authorizing any other person or entity to do so) You warrant that You have the authority provided by Your state, province, country, or jurisdiction, and on behalf of any entity with whom You may be associated, to enter into a legally binding contract and that You have read and agree to be bound by the terms of this Agreement. You understand and acknowledge that this Agreement comprises the entire agreement between You and AJ Tek. If you do not agree with the terms and conditions set forth hereinafter, you may not purchase, download, access, install, click “I Agree”, or use the Software or Services.
2. LICENSE SCOPE AND GRANT
In consideration for payment of all applicable license fees and subject to the terms and conditions of this Agreement, AJ Tek grants You a revocable, limited, and non-exclusive license to install and use the Software and Services, for their intended purposes, on a single installation of the software for a period of 1 year, renewable at the end of the term (the “Subscription Term”). This license is non-sublicensable and non-transferable. All rights in and to the Software and Services are reserved to the use and benefit of AJ Tek and/or its licensors, successors and assignors.
2.1 Test Installation
You may install and test one additional instance of the Software for the purpose of testing. This installation must be and remain isolated and inaccessible to production machines at all times.
3. RESTRICTIONS
Your license to use the Software and Services is subject, among other things, to the following terms, conditions, and restrictions on use:
You may alter and modify the Software’s source code for Your use, subject to this Agreement, however, You may not distribute, publish, resell, or otherwise share the Software or derivative works based on the Software without prior express written consent from AJ Tek Corporation.
You may not utilize the Software or Services to engage in, facilitate, or otherwise allow others to engage in any activity that violates any law or regulation or the terms and conditions within this Agreement.
You are solely responsible for complying with all governmental regulations and policies. You agree to indemnify Us from any loss, action or damage arising from Your failure to use the Software in a manner inconsistent with applicable legislation.
You may not remove any copyright or proprietary notices on or within the Software’s source code at any time.
4. CONFIDENTIAL INFORMATION & INTELLECTUAL PROPERTY
We have the sole and exclusive right to the Software which is being licensed, not sold, to You by AJ Tek under the terms and conditions of this Agreement. The Software is protected by copyright, trademark, and other intellectual property laws. AJ Tek reserves any rights not expressly granted herein.
4.1 Confidential Information
In this Agreement, “Confidential Information” means all information of AJ Tek that is not generally known to the public that is disclosed by AJ Tek to You, or that is otherwise learned by You or comes into Your possession or knowledge, in connection with or as a result of this Agreement. Without limitation, the Confidential Information includes any and all trade secrets and other confidential intellectual property in any form or medium including, without limitation, any and all product information, source code, scripts, technology, technical information, algorithms, processes, service terms, data, lists, copyrightable works, outlines, derivative works, and improvements thereof, whether or not patentable, copyrightable, otherwise protectable, or subject to other forms of protection. All Confidential Information remains the confidential and proprietary information of AJ Tek. Confidential Information does not include information and data that (i) is now available to You from non-confidential sources, (ii) is or becomes public other than through a breach of this Agreement, or (iii) did not originate from or was not supplied by AJ Tek, directly or indirectly, and was known to You prior to this Agreement as demonstrated by written records.
4.2 User Developed Intellectual Property
All intellectual property including, without limitation, any and all discoveries, inventions, product information, source code, scripts, technology, technical information, algorithms, flowcharts, processes, plans, models, service terms, data, lists, works, outlines, know-how, derivative works, improvements, and any confidential materials, information and instructions, whether or not patentable, copyrightable, otherwise protectable, or subject to other forms of protection which You solely or jointly conceive, create, develop, or reduce to practice, or cause to be conceived, created, developed, or reduced to practice by You, and which are directly or indirectly based on or derived from or result from the Confidential Information, (collectively, the “Developed IP”) shall be assigned and transferred by You to AJ Tek as of the moment of their creation or development, and is and shall be the sole and exclusive property of AJ Tek. You hereby waive, in favor of AJ Tek, its successors, assigns, nominees and other legal representatives, any and all moral rights You have or may have with respect to any Developed IP. If requested, You shall promptly sign all reasonable waivers, assignments, declarations, and agreements to further ensure such moral rights waiver and the assignment of all such Developed IP to the AJ Tek.
4.3 Non-Disclosure, Use & Retention
None of the Software or Services shall be used for any commercial purposes other than as expressly permitted herein, or for their intended and expressly contemplated purposes. None of the Software and Services shall be used for reverse engineering, or to reverse engineer the Software, Services, or any features or elements thereof. None of the Software, Services, Confidential Information, or Developed IP may be used to develop or provide any similar software or services for any third parties, nor to compete directly or indirectly with AJ Tek.
You shall not make copies, disclose, or divulge any of the Software, Services, Confidential Information or Developed IP, except with the prior written consent of AJ Tek and to persons who have concluded with AJ Tek an agreement in similar terms to this Agreement. You shall hold all Confidential Information and Developed IP in trust for the benefit of AJ Tek. You will stand in a fiduciary relationship with AJ Tek with respect to the Confidential Information and Developed IP. None of the Confidential Information or Developed IP shall be used by You for any commercial purpose, nor for any purpose other than as expressly contemplated herein or as required by the Software and in connection with the Services. You may, however, disclose Confidential Information and Developed IP which is required to be disclosed by law, whether under an order of a court or government tribunal or other legal process, provided You first inform AJ Tek of such requirement in sufficient time to allow AJ Tek to, if possible, avoid such disclosure by You.
You acknowledge and agree that irreparable harm will be suffered by AJ Tek in the event of Your breach or threatened breach of any of Your obligations under this Agreement, and that AJ Tek will be entitled to seek, in addition to any other rights and remedies that AJ Tek may have at law or equity, a provisional, interlocutory or permanent injunction restraining You from engaging in or continuing any such breach hereof. Any claims asserted by You against AJ Tek shall not constitute a defense in any injunction action, application or motion brought against You by AJ Tek.
4.4 Return or Destruction of Materials
You shall return to AJ Tek or destroy, as directed by AJ Tek, the Software, Confidential Information and/or Developed IP upon request by AJ Tek at any time. You shall then certify, by way of affidavit or statutory declaration that all such Software, Confidential Information and/or Developed IP has been returned or destroyed, as applicable.
5. ASSIGNMENT
You may not rent, lease, sub-license, transfer, sell, resell, share, authorize, assign, or temporarily assign Your rights to the license or this Agreement to another individual or entity except as expressly permitted herein. None of the Software or Services shall be re-sold by You or re-used by anyone else. AJ Tek may, in its sole discretion, assign its rights under this agreement, in whole or in part, to any successors, licensees, assigns, nominees, or other legal representatives, without notice to You.
6. TERMINATION
This Agreement shall remain in effect until terminated. Your rights under this Agreement will automatically terminate without notice from Us in the event You fail to comply with any term or condition within this Agreement. The entirety of Sections 3, 4, 5, 6, 8, 9, 10, 11 and 12 of this Agreement shall survive the termination of this Agreement for any reason. Upon termination of this Agreement, You shall immediately cease all use of the Software and destroy all copies, full or partial, of the Software that may be in Your possession or otherwise under Your control.
7. MODIFICATION
We reserve the right to amend or modify the terms of this Agreement at any time, and to change, discontinue or impose conditions on any aspect of the Software or related Service and to provide notification solely by posting an updated version of the Agreement on the AJ Tek website. You acknowledge that You are solely responsible for regularly reviewing this Agreement and our policies. Continued use of the Software after modification to the Agreement constitutes Your binding consent to such changes.
8. DISCLAIMER OF WARRANTY
8.1 Software & Services Provided “As-Is”
THE SOFTWARE AND SERVICES ARE PROVIDED “AS-IS” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, BY STATUTE, COMMON LAW, USAGE OR OTHERWISE, REGARDING THE SOFTWARE AND SERVICES, INCLUDING THEIR FITNESS FOR A PARTICULAR PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY, OR THEIR NON-INFRINGEMENT AND THIS IS SO ACKNOWLEDGED BY YOU. THE ENTIRE RISK AS TO THE RESULTS, QUALITY AND PERFORMANCE OF THE SOFTWARE AND SERVICES IS WITH YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR OUR EMPLOYEES, REPRESENTATIVE OR AGENTS OR THROUGH OR FROM THE SOFTWARE, SERVICES, OR OUR WEBSITE SHALL CREATE ANY WARRANTY, EXPRESS OR IMPLIED. AJ Tek is under no responsibility to correct or repair the Software of Services.
8.2 Sole Responsibility For Selection & Modification
YOU ASSUME FULL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND SERVICES TO ACHIEVE YOUR INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF THE SOFTWARE AND SERVICES, AND FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THE SOFTWARE AND SERVICES. AJ TEK MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE, SERVICES, OR DOCUMENTATION PROVIDED WITH THEM WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE AND SERVICES WILL BE INTERRUPTION OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY FOR ANY MODIFICATIONS YOU MAKE TO THE SOFTWARE OR SERVICES, AND ANY INTERACTIONS YOUR MODIFICATIONS MAY CAUSE TO THE BEHAVIOUR OF THE SOFTWARE AND SERVICES.
8.3 Not for Fail-Safe or Hazardous Applications
THE SOFTWARE AND SERVICES ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS IN WHICH THE FAILURE OF THE SOFTWARE OR SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
8.4 Statutory Rights
Nothing in this Agreement is intended to or shall be construed as excluding or modifying any statutory rights, warranties or conditions which may be applicable to this Agreement, or the Software or Services, and which by virtue of any applicable national, state, or provincial fair trade or other consumer legislation may not be modified or excluded. To the extent such legislation is applicable to Your license of the Software or Services, or is required by such legislation, any required warranty (hereinafter a “Required Warranty”) is limited in duration to ninety (90) days from the date of installation and AJ Tek and its suppliers’ liability for any breach of any such warranty or condition shall be and is hereby limited to either: (a) the replacement of such Software or Services; or (b) the correction of any defect in such Software, Services, or documentation which may be provided with them as AJ Tek, at its sole discretion, may determine to be necessary to correct the defect. However You shall provide AJ Tek timely written notice of any nonconformity with as much specificity as is known and as soon as You become aware of such nonconformity, but in any event prior to the expiration of the 90 day period. AJ Tek shall have the right to inspect and test the Software and Services to determine, in its reasonable opinion, whether the nonconformity is its responsibility to remedy. All such Required Warranties are void if failure of the Software or Services has resulted from Acts of God, accident, abuse, misapplication, modification of the software by You or Your agents, electrical surge, or any other cause beyond AJ Tek’s control.
8.5 No Representation Against Unauthorized Intrusion
AJ Tek does not warrant or represent that the Software or Services are secure or free from bugs, viruses, errors, or other programming limitations, or is immune from fraudulent or unauthorized intrusion or use (including its use to interconnect to long distance networks, computer virus and/or other malicious code of whatever nature). The Software has risks inherent to all software applications and, as such to the extent permitted by law or AJ Tek’s contractual obligations, AJ Tek disclaims and will not be liable for any loss, damage, injury or non-performance, cost or expense directly or indirectly occasioned thereby.
8.6 Allocation Of Risk
Provisions of this Agreement such as the warranty limitations, exclusive remedies, and limitations of liability are unrelated, independent allocations of risks between You and AJ Tek. Unenforceability of any such allocations shall not affect the enforceability of other such allocations. The fees paid by You for the Software and Services reflect the allocations of risk contained in this Agreement.
9. LIMITATIONS OF LIABILITY
9.1 Limitation Of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, EMPLOYEES, AGENTS, CONTRACTORS OR OUR SUCCESSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO PERSONAL INJURY OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, COVER, CONSEQUENTIAL OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR SAVINGS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION, LOSS OF GOODWILL, LOSS OF REPUTATION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE USE OF, OR INABILITY TO USE, THE SOFTWARE, THE SERVICES, OR ANY RELATED CONTENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THESE LIMITATIONS WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
9.2 Statutory Rights
Some jurisdictions do not allow limitation or exclusion of incidental or consequential damages in certain circumstances involving certain types of customer classes, so that the above limitation or exclusion may not apply to You to the extent that liability is by law incapable of exclusion or restriction.
9.3 Maximum Liability
IN NO EVENT SHALL AJ TEK’S TOTAL AGGREGATE LIABILITY, DIRECT OR INDIRECT, ARISING FROM OR IN CONNECTION WITH THE SOFTWARE, OR THIS AGREEMENT EXCEED THE LICENSE FEES PAID BY YOU FOR THE SOFTWARE OR SERVICES, AS APPLICABLE, REGARDLESS OF THE BASIS OF THE CLAIM FOR WHICH SUCH LIABILITY ARISES FROM.
10. ENTIRE AGREEMENT
You agree that this Agreement is the complete, final, and exclusive statement of the Agreement between You and AJ Tek, and supersedes any proposals or prior agreements, promises, representations, descriptions, or any other communications, relating to the subject matter hereof. No amendment, modification, or waiver of this Agreement will be valid unless set forth in written instrument signed by both parties, and this Agreement may only be modified in writing, signed by an officer of AJ Tek Corporation and You.
11. SEVERABILITY
If, for any reason, a court of competent jurisdiction deems any provision or part of this Agreement to be invalid, unlawful or unenforceable, that provision or part shall be enforced to the maximum extent allowed by applicable law if possible, failing which it shall be deleted. In either event, the other provisions and parts of this Agreement shall remain in effect and unaffected, such that the remainder of the Agreement shall remain in full force and effect.
12. GOVERNING LAW
This Agreement is governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. You hereby consent to exclusive jurisdiction and venue of the courts of the Province of Ontario in relation to this Agreement. By agreeing to the terms of this Agreement, You are waiving any claims that You might otherwise have against AJ Tek Corporation based on the laws of other jurisdictions.
