This Agreement (as defined below) is entered into at the place and date mentioned above between Les Solutions de Verre et Mur-Rideau Inc., a duly incorporated company having its head office at 1020 Bouvier Street, Suite 400, Quebec City (QC) G2K 0K9, represented by Mathieu Audet, duly authorized, as he so declares (hereinafter "") and the Licensee (as defined below) (hereinafter collectively with LSVM, the "").
LSVM is the holder of the intellectual property rights in the Applications (as hereinafter defined) it has developed;
the Licensee wishes to be granted by LSVM one or more licenses to use the Applications and to retain LSVM's services to provide certain related Services (as hereinafter defined);
LSVM wishes to grant the Licensee one or more licenses to use the Applications and offer certain related Services to the Licensee, who accepts, the whole in accordance with the terms of this Agreement;
:
The following words and expressions, whether used in this Agreement or in its preamble, shall have the following meaning, unless otherwise stipulated, and unless the context requires a different interpretation:
"" means any correction, modification, customization, update, content addition or new edition of the Applications undertaken by LSVM or any other person or entity;
"" means the IT devices of the Licensee's IT Infrastructure (as hereinafter defined) through which the Applications are used;
"" means the application(s) developed by LSVM, consisting of one or more preliminary validation tool(s) allowing for validations as described in the Quote in the "Description of Services" section;
"" means the Civil Code of Quebec, as it may be amended from time to time;
"" means this Agreement, its schedules and the Quote, as they may be amended, supplemented or updated from time to time by the Parties;
"" means the amounts payable by the Licensee to LSVM in consideration for the Services as more fully detailed in the Quote;
"" means any information identified as confidential by LSVM upon its disclosure to the Licensee, the Intellectual Property, the Quote, any support material for the Applications, this Agreement or any other information of LSVM that could reasonably be interpreted as confidential given the circumstances;
"" means any device, equipment, operating system, network as well as any other software of the Licensee required for the operation of the Applications;
"" means the license granted by LSVM under this agreement, as defined in paragraph 2.1 hereof;
"" means the person or company to whom the Quote is addressed and to whom LSVM grants the License and offers the Services hereunder;
"" means the intellectual property that relates to the Applications, its Improvements, as well as its use or that derives from it, in any jurisdiction, including copyrights within the meaning of the Copyright Act (Canada) in the Applications and in the content, including without limitation the interfaces and source code of the Applications, data compilations related to the Applications. Intellectual Property also includes the LSVM trademark, as well as any other trademark associated with the Applications and trade secrets within the meaning of Article 1612 of the Civil Code, including technical information, databases, spreadsheets, mathematical formulas, processes and methods related to the Applications or LSVM;
"" means the sums payable by the Licensee to LSVM in consideration for the granting of the License, as more fully detailed in the Quote;
"" means the technical support and training services detailed in the Quote;
"" means this quote addressed to the Licensee by LSVM;
"" means Canada;
"" means one (1) natural person working in the Licensee's company or business, authorized to use the Applications according to the terms of this Agreement. For the purchase of multiple licenses, occasionally, the user(s) may be changed. The names and email addresses of the new users must be transmitted in writing to LSVM. The client must allow a reasonable delay for LSVM to make the changes to the access.
2.1 . Subject to the payment of the Royalties, LSVM grants to the Licensee a temporary and non-exclusive license for the use of the Applications by one (1) User in the Territory on the Devices of the Licensee's IT Infrastructure, according to the terms of this Agreement (the "").
2.2 . The Licensee may not, unless with prior written agreement with LSVM, grant sub-licenses. Moreover, the Licensee may not allow access to the Applications to third parties without prior authorization from LSVM.
2.3 . LSVM may, from time to time, make Improvements to the Applications, at its discretion, through updates or otherwise. LSVM may decide, at its sole discretion, the timing and modalities of the deployment of Improvements, in order to ensure the stability of the Applications. The Licensee may suggest or request Improvements to the Applications or the Intellectual Property for customization purposes. However, any Improvement suggested by the Licensee, as well as any Intellectual Property rights that may result from it, will be the exclusive property of LSVM without further consideration and the Licensee hereby assigns to LSVM all its rights, titles and interests in such Improvements and waives all moral rights that may result from them.
2.4. . The License granted to the Licensee is non-transferable and can only be used by the Licensee's authorized Users, for its projects in which the Licensee is involved. The Licensee undertakes that neither it, nor any User, will use, directly or indirectly, the Applications to compete with LSVM, with the aim of harming the latter, or to provide paid or unpaid services to third parties, including, without limitation, performing calculations or verification services for third parties, whether these third parties are clients, partners or others. The use of the Applications is limited to the Licensee's company for which the License has been granted, for internal validation purposes. The provisions of this Article 2.4 apply to the Licensee and Users regardless of the legal form of the Licensee's business, including, without limitation, whether the Licensee and/or Users operate in the form of a sole proprietorship, corporation or partnership in particular.
Without limiting the generality of the foregoing, the Licensee undertakes to respect, and ensure that any User respects, the following:
- Any use of the Applications for consulting services purposes is strictly prohibited;
- The Licensee and Users may use the Applications exclusively for the internal activities of the company for which the License has been granted, related to projects in which the Licensee's company is directly involved. It is explicitly prohibited to use the Applications for consulting purposes, i.e., to provide validations or services to third parties or to companies other than that of the Licensee. The Licensee or Users may under no circumstances use the Applications to provide services to a third party;
- If the Licensee or Users engage in architectural firm activities, provide services or work for a company engaging in such activities, the Applications may be used by the Licensee and Users for guidance purposes in developing specifications, conducting preliminary validations during tenders, examining equivalence proposals or analyzing change orders during contract execution, but only within the framework of projects in which the company related to the Licensee is involved;
- Glass and/or glazing manufacturers and suppliers, self-employed individuals, companies offering engineering services in particular, and any other service company may not use the Applications for the purpose of providing advice and recommendations to anyone;
In case of violation of this article by the Licensee or Users, LSVM will be entitled to immediately terminate this Agreement without refund of any amount paid by the Licensee, without prejudice to LSVM's other rights or remedies.
3.1 . The Services will be performed diligently by LSVM or by LSVM's subcontractors, in the Licensee's IT Infrastructure, according to the terms provided herein and in the Quote. For any question or request regarding the Services, the Licensee undertakes to contact LSVM, which will see to the appropriate follow-up.
4.1 . In consideration for the License, the Licensee agrees to pay LSVM the amount of Royalties determined in the Quote, according to the terms provided in the Quote. For clarity, the Royalties mentioned in the Quote do not include applicable sales taxes, which remain the responsibility of the Licensee.
4.2 . In consideration for the Services, the Licensee agrees to pay LSVM the Fees provided in the Quote, according to the terms provided in the Quote. For clarity, the Fees mentioned in the Quote do not include sales taxes applicable to the Licensee.
4.3 . LSVM reserves the right to modify the amount of Royalties and Fees payable for the Services once (1) a year at the renewal of the Agreement. For this purpose, LSVM shall send the Licensee a written notice thirty (30) days before the effective date of the modification.
5.1 . The Royalties and Fees shall be paid in the manner provided for in the Quote.
5.2 . Any unpaid amount due under this Agreement will bear interest at the annual rate of eighteen percent (18%), or one and a half percent (1.5%) monthly, from the day the payment deadline expires until full payment of the amounts due. Without limiting the generality of the foregoing, the Licensee accepts and understands that LSVM reserves the right not to make the Applications available to the Licensee or not to begin the execution of the Services or, as the case may be, to immediately cease the execution of the Services or to revoke the License, temporarily or permanently, in case of non-payment of Royalties, Fees or any other amount payable under this Agreement by the Licensee, without further notice or delay, and without this constituting a default on the part of LSVM. The Licensee also acknowledges that LSVM will be entitled to retain any property of the Licensee in its possession in case of non-payment, as well as any deliverable prepared under this Agreement by LSVM.
6.1 . LSVM undertakes, upon payment of Royalties, to deliver the Applications to the Licensee on the delivery date provided in the Quote.
6.2 . The Applications and the Services exclude any warranty of any kind whatsoever, implicit, explicit or express, including but not limited to, any warranty of merchantability, non-infringement, fitness for a particular purpose or otherwise. Moreover, LSVM disclaims all responsibility and gives no warranty regarding the goods, structures and products on which validations are performed using the Applications as well as on the installation of said goods, structures and products. LSVM does not guarantee the performance, use and operation of the Applications. No damages can be claimed from LSVM regarding the use or operation of the Applications. The Licensee acknowledges that LSVM is in no way responsible for the validity of the data used and entered by the Licensee. Furthermore, the Licensee acknowledges that any estimate or other result arising from the Applications and their use must be validated by an engineer before any design or execution work and the Licensee releases LSVM from any responsibility in this regard. The Licensee understands that LSVM makes no warranty as to the absence of error or omission in the calculations or other results resulting from the use of the Applications. Also, it is the responsibility of the Licensee to ensure that its IT Infrastructure is not obsolete and can support the Applications and any Improvement.
6.3 . The maximum liability of LSVM under this Agreement, whether under its extracontractual or contractual civil liability or for any other issue related to the Applications, is limited to the total amount paid by the Licensee to LSVM as Royalties under this Agreement in a period of one (1) year preceding the date of the event giving rise to liability. Without limiting the generality of the foregoing, LSVM shall not be liable for any indirect, incidental or consequential damages, including, but not limited to, loss of revenue or profits, loss of goodwill or missed opportunities.
7.1 . The Licensee undertakes to pay LSVM all amounts due under this Agreement in full and on time.
7.2 . The Licensee must use the Applications only in the IT Infrastructure, respecting the limit number of Devices provided in the Quote, as well as the usage restrictions provided herein. Moreover, the Licensee must comply with the usage instructions that will be provided by LSVM to ensure the proper functioning of the Applications.
7.3 . The Licensee may not modify, reproduce, publish, sell, distribute, sub-license in any way the Applications or the Intellectual Property or proceed to reverse engineering of the source code of the Applications or the Intellectual Property. It is also prohibited to exceed the number of Users provided in the Quote. In case of violation of this article by the Licensee or Users, LSVM will be entitled to immediately terminate this Agreement without refund of any amount paid by the Licensee, without prejudice to LSVM's other rights or remedies.
7.4 . The Licensee undertakes to provide LSVM with reasonable access, whether physical or remote, for technical support of the Applications when required and for the performance of the Services.
7.5 . The Licensee acknowledges that the Intellectual Property remains the exclusive property of LSVM and the Licensee undertakes not to contest it.
8.1 . The Licensee undertakes to indemnify and hold harmless LSVM, its officers, directors, shareholders, members, representatives, employees, agents and agents from any lawsuit, conviction, claim, loss, expense, penalty, infraction, damage or any other expense of any kind whatsoever arising directly or indirectly from an act, omission, fault, default or negligence on its part, its officers, directors, shareholders, members, representatives, employees, agents and agents for anything directly or indirectly related to this Agreement. The Licensee acknowledges that it is responsible for ensuring the safety, proper functioning and reliability of any structure or good it manufactures or installs. The Licensee understands and acknowledges that LSVM gives no warranty regarding the safety of products manufactured or installed following the use of the Applications or the use that the Licensee makes of them. Moreover, LSVM assumes no responsibility for any claim relating to injuries or bodily or material damages suffered by any person on the premises where the Licensee's structures are installed or manufactured or occurring in relation to the use of the Applications by the Licensee or the goods or buildings on which validations are performed using the Applications. Consequently, the Licensee undertakes to defend and hold harmless and indemnify LSVM as well as its directors, officers, trustees, employees, agents or subcontractors with respect to any damage, loss, claim, demand, lawsuit, formal notice, costs or liability whatsoever, including legitimate and reasonable legal fees and disbursements, both judicial and extrajudicial, that LSVM may incur or suffer in relation to any claim made by a third party in connection with a loss, damage or expense arising from the use of the Applications by the Licensee, including but not limited to, in connection with any use, damage or fault of the Licensee in relation to its use of the Applications or any damage caused by goods or buildings on which validations are performed via the Applications.
9.1 . The Licensee hereby acknowledges that all Confidential Information disclosed during the term of the Agreement remains the exclusive property of LSVM and, consequently, the Licensee acknowledges that any unauthorized disclosure of the Confidential Information may cause serious damage to LSVM. Consequently, the Licensee undertakes towards LSVM in order to protect the interests of the latter, to:
use the disclosed Confidential Information only for the purposes for which it was disclosed;
not allow a third party to have access to this Confidential Information except if a disclosure of it proves necessary for the realization of the object of its disclosure;
take all appropriate measures, when the disclosure of Confidential Information to a third party becomes necessary and authorised by LSVM, to protect the confidentiality of such Confidential Information by entering into a non-disclosure agreement with such third-party which shall provide at least the same protection of the Confidential Information as provided for herein;
take all reasonable appropriate means to limit access to said Confidential Information;
notify the disclosing Party of any unauthorized access to or any unauthorized use of the Confidential Information by a third party;
assist LSVM in the context of lawsuits or legal proceedings aimed at protecting the Confidential Information.
9.2 . The Parties agree that at the end of the Agreement, the Licensee must, upon request of LSVM, return any Confidential Information that has been transmitted to it by LSVM, including, if applicable, the copies that the latter has authorized, without retaining any copy or extract whatsoever.
10.1 . LSVM retains exclusive ownership of its rights to the Intellectual Property. All derivative products, modifications, updates and other Improvements made by LSVM or any other person also remain the property of LSVM.
11.1 . This Agreement shall enter into force as of the signature of the Quote by the Licensee and shall remain in force until the expiry of a period of one (1) year from the date of delivery of the Applications as indicated in the Quote. This Agreement will be automatically renewed for subsequent periods of one (1) year, unless written notice to the contrary from either Party is transmitted to the other Party within thirty (30) days preceding the expiry of the Agreement or any subsequent renewal.
11.2 . Subject to LSVM's right to immediate termination of the Agreement as provided in paragraphs 2.4 and 7.3, each Party may, at any time, terminate the Agreement, without prejudice to its other rights and remedies, if the other Party does not respect one of the provisions of the Agreement and if such default is not remedied within a period of ten (10) days from the transmission of a written notice to this effect indicating the nature of the default and the intention of the sending Party to terminate the Agreement if the defaulting Party refuses or fails to correct the default within the ten (10) day period. LSVM's failure to notify the Licensee of a default will not be considered as a waiver on its part to assert such default.
11.3 . LSVM will be entitled to terminate this Agreement at any time, without reason, upon sixty (60) days written notice. The Licensee whereby waives the application of Sections 2125 and 2129 of the Civil Code.
11.4 . The Licensee acknowledges that it must immediately cease any use of the Applications upon termination of this Agreement as well as any document transmitted in connection with the Applications or Services. LSVM may then take appropriate steps to ensure that the Applications as well as any document related to the Applications or Services do not come into the possession of a third party, including requesting the Licensee to destroy any copy of the Applications and any document related to the Applications or Services and to confirm to it by sworn written statement that all copies have been duly destroyed.
12.1 . Except for clauses of the Agreement where otherwise provided, any notice required under this Agreement is sufficient if it is recorded in writing and sent by a mode of communication that allows the sender to prove that said notice was effectively delivered to the recipient at the address indicated herein for that party or to any other address that this party may make known in accordance with this section.
12.2 . This Agreement constitutes the entire agreement between the Parties as to its object.
12.3 . Each provision of this Agreement is severable and a declaration by a competent court that a provision or part thereof is null or unenforceable will have no effect on the validity or enforceability of any other provision of the Agreement.
12.4 . Unless expressly provided otherwise, neither this Agreement nor any of the rights or obligations arising hereunder may be assigned in whole or in part by the Licensee.
12.5 . Each Party to this Agreement agrees, from time to time and at all times after its signature, at the request of the other Party to this Agreement, to do any other thing and to sign any other document and writing that may be reasonably required to perfect and execute the terms and purpose of this Agreement.
12.6 . This Agreement shall be governed by and interpreted in accordance with the laws of the province of Quebec and the laws of Canada applicable therein.
12.7 . The Parties agree that, for any claim or legal action for any reason whatsoever relating to the Agreement, the courts of the province of Quebec, judicial district of Quebec, will have the exclusive jurisdiction for the hearing and decision on these claims or legal actions to the exclusion of any other judicial district that may have jurisdiction over such litigation according to the prescriptions of the law.
12.8 . The Agreement may be modified at any time by mutual agreement between the Parties. Any modification must, however, be recorded in writing and signed by each of the Parties to the Agreement. It is presumed to take effect on the day it is recorded in a writing duly signed by the Parties.
12.9 . By using the Applications, any User acknowledges having read this Agreement and agrees to be bound by its terms and conditions and accepts and undertakes to respect the obligations of the Licensee and the terms relating to the use of the Applications, with the necessary adaptations.
In the event of any discrepancy between the French and English versions of this Agreement, the French version shall prevail.