License agreement

SOFTWARE SUBSCRIPTION AGREEMENT

Maya Heat Transfer Technologies Ltd (“Maya HTT”)

1100 Atwater Avenue, Suite 3000

Westmount, Quebec H3Z 2Y4

Phone: (514) 369-5706

TMG Correlation

** IMPORTANT - READ CAREFULLY **

BY PROCEEDING TO DOWNLOAD, INSTALL OR USE THE SOFTWARE IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED OR BY OBTAINING A LICENSE KEY FOR THIS SOFTWARE, YOU HEREBY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN CLICK “DO NOT ACCEPT”, DO NOT INSTALL OR USE THE SOFTWARE AND DELETE THE SOFTWARE FROM YOUR COMPUTER SYSTEM. BY INSTALLING OR USING THE SOFTWARE OR BY CLICKING ON “ACCEPT” YOU ACKNOWLEDGE AND AGREE THAT ON BEHALF OF YOURSELF AND YOUR EMPLOYER YOU HAVE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY, THAT YOU AND YOUR EMPLOYER AGREE TO BE BOUND BY THIS AGREEMENT AND THAT IF APPLICABLE YOUR EMPLOYER HAS INFORMED YOU OF THE RELEVANT PROVISIONS OF THIS AGREEMENT WHICH MAY BE APPLICABLE TO YOU. THIS AGREEMENT SHALL GOVERN YOUR INSTALLATION AND USE OF THE SOFTWARE IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED, MAYA HTT URGES YOU TO CAREFULLY READ THIS AGREEMENT AND ASSESS YOUR USE OF THE SOFTWARE PRIOR TO INSTALLING OR USING THE SOFTWARE OR MAKING ANY DECISION TO USE OR PURCHASE IT.

This SOFTWARE SUBSCRIPTION AGREEMENT (the “Agreement”) is dated as of the date of, in the case of any Evaluation Software (as defined in Section 14 below), the date of Your acquisition of a License Key, or in in the case of any purchase of a license for use of the Licensed Software (as defined below), date of the Purchase Order (as defined below) pursuant to which such license is purchased, is between MAYA HEAT TRANSFER TECHNOLOGIES LTD, a Canada corporation (the “Company”) and, in the case of any Evaluation Software, the customer to whom temporary License Keys are delivered or, in the case of any purchase of a license for use of the Licensed Software, the customer set forth on the Purchase Order pursuant to which such license is purchased (in each case, herein “You” or “Your”), and sets forth the terms and conditions whereby Company agrees to provide You and You agree to acquire from Company the number of licenses to install and use certain software and use certain documentation and maintenance services related thereto, owned or licensed by Company, as set forth on the Purchase Order pursuant to which You agree to subscribe to the software and documentation and maintenance services licensed hereby, which is hereby incorporated herein by reference and made a part of this Agreement. The terms or conditions contained in any Purchase Order or other similar document provided by You are excluded and such terms and conditions will not apply and will not supplement or modify this Agreement. The Purchase Order together with the terms and conditions of this Agreement, shall constitute and be construed as a single agreement consisting of the terms and conditions contained in this Agreement. This Agreement specifically supersedes and replaces the terms and conditions of all prior agreements between Company and You, including, but not limited to, any shrink-wrap agreements, click-wrap agreements or demo or trial agreements which may accompany or are embedded in Company’s products or which have been previously in force between the parties. In consideration of the mutual promises and agreements contained herein, the parties hereto also agree as follows:

GENERAL TERMS AND CONDITIONS

1. DEFINITIONS

(a) “Agreement” means this software subscription agreement, together with the Purchase Order made a part hereof in accordance with the terms of this Agreement and all amendments, modifications, supplements and alterations thereto effected in accordance with the terms of this Agreement.

(b) “Error” means any error, defect, or omission that (i) is discovered in the Licensed Software, (ii) is reproducible and (iii) prevents its operation substantially in accordance with the Licensed Documentation.

(c) “Hardware” means any of Your workstation, central processing unit, server, personal computer or other similar device or system.

(d) “Licensed Documentation” means the published user manuals that Company makes generally available for the Licensed Software.

(e) “Licensed Material” means the Licensed Software and the Licensed Documentation.

(f) “Licensed Software” means the machine-readable object code version of (i) the software specified on each Purchase Order, whether embedded on disc, tape, internet download site or other media and (ii) all Updates for the Licensed Software that Customer is entitled to receive in connection with its receipt of Maintenance Services pursuant to this Agreement.

(g) “License Term” means (A) the initial period of time (the “Initial Term”) (i) specified on the Purchase Order pursuant to which Customer agreed to lease the Licensed Material or (ii) to the extent no such initial period is specified on the Purchase Order, a one-year period of time, in each case commencing on the Effective Date and (B) all subsequent renewals and extensions thereof effected in accordance with the terms of this Agreement (each, a “Renewal Term”).

(h) “Maintenance Services” means the technical support services provided by Company pursuant to Section 4 of this Agreement.

(i) “Purchase Order” means (i) Company’s standard price quote, order form or purchase confirmation (including any purchase confirmation delivered electronically through an online store owned or controlled by Company or its affiliates), as such document may be amended, supplemented or modified from time to time in accordance with this Agreement or (ii) any other non-Company price quote, purchase order, order form or purchase confirmation delivered by Customer to Company but solely to the extent permitted by and delivered in accordance with Section 13.

(j) “Update” means any revision, enhancement, improvement or modification to or programming fix for the Licensed Software or Licensed Documentation which Company makes generally available, incorporates into and makes a part of the Licensed Software or Licensed Documentation and does not separately price or market.

2. LICENSE

(a) Use

Subject to the terms and conditions of this Agreement including, but not limited to the applicable licensing restrictions set forth in Section 2(b) below, and subject further to Your full compliance herewith and according to the scope, time period and other terms indicated on the applicable Purchase Order delivered in connection with this Agreement, Company hereby grants You and You hereby accept from Company, a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited, license during the License Term to download, and install the Licensed Software in object code only on Hardware that is owned by You, solely for professional, commercial, industrial or institutional uses in accordance with the applicable restrictions and conditions contained in this Agreement and to copy the Licensed Software as permitted by this Agreement. Upon expiration of the License Term this Agreement and all rights and licenses granted under this Agreement shall automatically expire.

(b) License Usage and Restrictions

You acknowledge and agree that, as between You and Company, Company owns and shall continue to own all right, title, and interest in and to the License Material, including associated intellectual property rights and any copyright thereon or included therein and any and all trademarks, logos and other proprietary markings under copyright, trade secret, patent, or trademark laws. This Agreement does not grant You any ownership interest in or to the Licensed Material, but only a limited right and license to install and use the License Software and to use the Licensed Material in accordance with the terms of this Agreement and each applicable Purchase Order. You further acknowledge and agree that the license granted hereunder shall expire automatically upon expiration or termination of the License Term.

Without limiting the generality of the foregoing, You shall not, directly or indirectly: (i) decompile, transform, modify, translate, 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 Licensed Software, (ii) modify, merge, alter, copy, distribute or otherwise reproduce or tamper with the Licensed Software or produce or create any other applications whatsoever or any derivative works thereof, (iii) copy, alter, destroy, remove, reproduce, distribute, tamper or use without authorization any copyright, trade secret, patent, trademark or other proprietary or legal markings or notices placed upon or contained within the Licensed Software, (iv) rent, resell, lease, give access, share, lend or operate the Licensed Software on a time share or service bureau basis, or distribute as part of an ASP, VAR, OEM or other arrangement, the Licensed Software, (v) use or access the Licensed 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 that is destructive, harmful or disruptive (including, without limitation, any viruses or other programs that may damage, misappropriate, hack into or misuse the Licensed Software), or (vi) otherwise use the Licensed Software for unlawful, prohibited, illegal, inappropriate, offensive, damaging or otherwise unsuitable purposes, including in connection with activities involving junk email, spamming, hacking, defamation, abuse, harassment, stalking, threatening or otherwise violating the rights of any person.

(c) Copies and Disaster Recovery

You may copy the Licensed Software as reasonably required in conjunction with Your permitted use under this Agreement and for backup purposes. You will retain and reproduce all copyright or proprietary notices in their exact form on all copies of the Licensed Software made by You. The original and all complete copies of the Licensed Software, including the intellectual property rights inherent in the Licensed Software, will remain the sole property of Company and will be subject to the terms and conditions of this Agreement. If You breach or threaten to breach the terms of this Section 2(c), Company will have the right, in addition to such other remedies which may be available to it, to seek injunctive relief enjoining such acts or attempts, it being acknowledged and agreed by You that monetary damages are inadequate to protect Company.

(d) Renewal of License

Upon expiration of the Initial Term and each Renewal Term, all licenses granted under this Agreement shall automatically renew for the same length as the preceding term and Company will invoice You at the then-current subscription-based list price for such additional License Term unless is notified by You in writing at least sixty (60) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable, that You will not renew the licenses granted hereunder for another Renewal Term.

(e) Other Services

All licenses and Maintenance Services purchased by You in respect of the Licensed Material shall be governed by this Agreement, together with the applicable Purchase Orders delivered hereunder. Unless otherwise agreed by the parties in writing, all other services purchased by Customer in respect of the Licensed Software, if any, including implementation services, training services and professional services (collectively, “Ancillary Services”), shall be governed solely by a separate written mutually acceptable services agreement entered into by the parties or, in the absence of such agreement, Company’s standard professional services agreement, and acceptance of the Licensed Material shall not be contingent upon Your acceptance of any such Ancillary Services.

3. DELIVERY AND PAYMENT TERMS

(a) Delivery

All Licensed Material shall be delivered by Company to You via electronic delivery using a secure internet download site. Ownership of all the licenses purchased hereunder and risk of loss for the related Licensed Materials shall be deemed to have passed to Customer once Company has made the Licensed Material available for download by You, notified You of the availability of the Licensed Material for download and provided You with all License Keys necessary for the installation and operation of the Licensed Software.

(b) Payment

Upon delivery of a Purchase Order by You, Company shall deliver an invoice to You specifying the subscription license fees payable for the Initial Term. Each year thereafter during the License Term Company shall invoice You for all renewal subscription fees due in respect of each Renewal Term. You shall pay all license fees specified in each invoice within thirty (30) days of Your receipt of such invoice. In the event that You elect to pay any fees due hereunder with a credit card, (i) You are required to provide Company with a valid form of credit card payment and to keep all such credit card information current and accurate in respect of all renewal fees, (ii) You shall promptly notify Company if Your credit card has changed or has been declined and (iii) You hereby consent to Company automatically processing and charging all fees due by You hereunder, including all renewal subscription fees, to the credit card submitted by You. All fees payable by You in respect of any Ancillary Services may be separately invoiced. Your payment obligation with respect to all license fees owing hereunder shall be independent of the provision of Ancillary Services, whether or not such Ancillary Services are separately invoiced. Any late payment of any amount owing hereunder shall accrue interest at a rate equal to the lesser of (i) 15% per annum and (ii) the maximum rate permitted by law.

(c) Taxes

All payments referred to in this Agreement are exclusive of value added tax, sales tax and any other applicable taxes, duties, or imposts which (with the exception only of those based on Company’s income) shall also be payable by You in accordance with applicable law.

4. MAINTENANCE

Company does not warrant that the Licensed Software will operate error-free or may be used error-free. With respect to the Licensed Software specified in each Purchase Order, upon Your payment of the license fees associated with such Licensed Software, as specified in each Purchase Order, Company shall provide Maintenance Services for such Licensed Software during the License Term in accordance with this Section 4 and in accordance with the additional Maintenance Services terms specified in such Purchase Order. Maintenance Services is included in the subscription license fee and is not separately charged or invoiced. Maintenance Services includes problem determinations, reasonable problem resolutions, provisioning of software program temporary fixes and new releases. Maintenance Services shall also include any additional Maintenance Services terms specified in the Purchase Order pursuant to which You purchased a license to use the Licensed Software. Maintenance Services shall be provided in accordance with the additional Maintenance Services terms specified in such Purchase Order. Maintenance Services shall entitle You to receive, at no additional cost, all Updates.

5. PROPRIETARY RIGHTS

You shall not acquire, by virtue of this Agreement, any right or license other than as expressly provided herein. You shall not reproduce the Licensed Material or other confidential or proprietary information of Company, except as provided in this Agreement. All proprietary rights in and to the Licensed Material and all confidential or proprietary information of Company, including without limitation, all rights under and with respect to patents, copyrights, trademarks and rights under the trade secret laws of any jurisdiction shall remain the sole property of Company or its applicable licensor, whether recognized by or perfected under applicable local law. You shall promptly notify Company of any infringement of Company’s proprietary rights of which it becomes aware.

6. LIMITED WARRANTIES

(a) Warranty

Company warrants that, for a period of ninety (90) days from the Effective Date (the “Warranty Period”), the Licensed Software will substantially conform to the technical specifications set forth in the Licensed Documentation published by Company in relation to the Licensed Software. This limited warranty is void in the event that the Licensed Software and/or the Hardware on which it is used are affected by an accident, abusive treatment or wrongful application, which results in any defect in the Licensed Software. This limited warranty extends only to You as the original Licensee. The above limited warranty DOES NOT apply to any beta software, any Licensed Software made available for trial, testing or demonstration purposes, any temporary Licensed Software modules or any Licensed Software for which Company or a designee of Company does not receive a license fee.

(b) Remedies

If (i) at any time during a License Term, the Licensed Software contains Errors which make the Licensed Software unable to perform substantially as described in the accompanying Licensed Documentation or (ii) during the Warranty Period, Company breaches the warranty set forth in clause (a) above, then You shall promptly notify Company of such Error or breach and Company shall (A) use all commercially reasonable efforts to correct such Error or breach within thirty (30) days of notification or (B) provide You within thirty (30) days of notification with a plan acceptable to You for correcting such Error or breach. If such Error or breach is not corrected or if an acceptable plan for correcting such Error or breach is not established within such thirty (30) day period, Company shall replace the defective Licensed Software or, if not practicable, accept the return of the defective Licensed Software and refund to You the pro rata pre-paid amount for the remaining portion of the Initial Term or Renewal Term, as applicable. Company’s obligations under this Section 6(b) shall be waived in the event such Error or breach is due to (I) any defect in or misconfiguration of the Hardware upon which the Licensed Software is installed, (II) improper handling or use of the software media by You, or (III) an unauthorized alteration, revision, or configuration of the Licensed Software or to Your Hardware by You or its employees. You acknowledge that this Section 6(b) sets forth Your sole and exclusive remedy, and Company’s and its authorized representatives’ sole and exclusive liability, for any breach of warranty, Error, or failure of the Licensed Software to function properly.

(c) Disclaimer

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE LICENSED MATERIAL, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY COMPANY OR ITS AUTHORIZED REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN AND DISCLAIMED.

7. INDEMNITY

(a) Indemnity

Subject to this Section 7 and Section 8 below, Company agrees to indemnify, defend and hold harmless You from and against all claims, damages, losses, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of any claim by a third party asserting that the Licensed Material or any of Your use thereof, infringes upon any third party's patent, copyright or trademark, provided that (i) You promptly notify Company in writing no later than thirty (30) days after Your notice of any potential claim, (ii) You permit Company to defend, compromise or settle the claim, and provided further that no settlement intended to bind You shall be made without Your prior written authorization and (iii) You give Company all available information, reasonable assistance, and authority to enable Company to do so.

(b) Alternative Remedy

If a claim described in Paragraph 7(a) may or has been asserted, You will permit Company, at Company’s option and expense, to (i) procure the right to continue using the Licensed Material, (ii) replace or modify the Licensed Material to eliminate the infringement while providing functionally equivalent performance or (iii) accept the return of the Licensed Material and refund to You the pro rata pre-paid amount for the remaining portion of the Initial Term or Renewal Term, as applicable.

(c) Limitation

Company shall have no indemnity obligation to You hereunder if the violation or infringement claim results from (i) a correction or modification of the Licensed Material not provided by Company, (ii) the failure to promptly install an Update, (iii) the combination of the Licensed Software with other non-Company software and (iv) continuing the allegedly infringing activity after receiving written notice of such infringement claim from Company.

8. NO CONSEQUENTIAL DAMAGES

UNDER NO CIRCUMSTANCES WILL COMPANY OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS BY YOU OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE LICENSED MATERIAL, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, BREACH OF ANY INTELLECTUAL PROPERTY RIGHT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY INCURRED IN ANY ACTION OR PROCEEDING BY COMPANY OR ITS AUTHORIZED REPRESENTATIVE EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU FOR THE SPECIFIC LICENSED SOFTWARE THAT DIRECTLY CAUSED THE DAMAGE.

9. CONFIDENTIALITY

(a) Confidentiality

You acknowledge that the Licensed Materials incorporate confidential and proprietary information developed or acquired by or licensed to Company and that all results of testing of the Licensed Software, whether performed by You or another third party, are confidential. In no event will You publish or disclose the results of any testing or performance specifications of the Licensed Software without Company’s express prior written consent. A party that receives Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) shall not: (i) export or re-export (within the meaning of Canadian or US laws or other export control laws or regulations) any Confidential Information, except in strict compliance with Canadian and US laws; (ii) reverse engineer any Confidential Information; or (iii) disclose or make available the Disclosing Party’s Confidential Information to any of the Receiving Party’s employees, agents, contractors or consultants or to any third parties, except those that have agreed in writing to be bound by terms and conditions substantially similar to, and no less restrictive with respect to limitations on use and disclosure, than those contained in this Agreement and each of which have a “need to know” in order to carry out the purposes set forth in this Agreement. Each party shall take all reasonable precautions necessary to safeguard the confidentiality of all Confidential Information disclosed by the other party, including those precautions (A) taken by the disclosing party to protect its own Confidential Information and (B) which the disclosing party or its authorized representative may reasonably request from time to time. Neither party shall allow the removal or defacement of any confidentiality or proprietary notice placed on the Confidential Information disclosed by the disclosing party. The placement of copyright notices on Confidential Information shall not constitute publication or otherwise impair their confidential nature of such information.

(b) Disclosure

If an unauthorized use or disclosure of the Disclosing Party’s Confidential Information occurs within the Receiving Party’s enterprise, the Receiving Party will immediately notify the Disclosing Party or its authorized representative and take, at Receiving Party’s expense, all steps which may be available to recover such Confidential Information and to prevent its subsequent unauthorized use or dissemination.

10. TERMINATION

This Agreement shall become effective upon the Effective Date and shall continue in effect until the earlier of when: (i) You destroy your copy of the Licensed Software, or (ii) the License Term of the license specified in the Purchase Order has lapsed, or (iii) this Agreement is terminated by Company as a result of Your failure to cure a breach of this Agreement within fifteen (15) days of the receipt of a notice thereof from Company. This Agreement will terminate automatically if You cease to do business, become insolvent, go or are put into receivership or liquidation, pass a resolution for Your winding up (other than for the purpose of reconstruction or amalgamation) or for any of the foregoing, make an arrangement for the benefit of Your creditors, enter into bankruptcy, suspension of payments, moratorium, reorganization or any other proceeding that relates to insolvency or protection of creditors’ rights or take or suffer any similar action in consequence of debt. Upon the termination of this Agreement for any reason and upon expiration of the License Term, all rights granted to You hereunder will cease, and You will promptly (i) purge the Licensed Software and any related Updates from all of Your Hardware, storage media and other files, (ii) destroy the Licensed Material and all copies thereof and (iii) certify to Company that You have complied with these termination obligations. Upon any termination: (a) all licenses hereunder shall terminate and You shall immediately cease using the Licensed Material, and (b) You must and shall destroy all copies of the Licensed Software and any supporting Licensed Material, stored on whatever Hardware or other media. The provision of Sections 1, 3, 8 through 15 shall survive the termination of this Agreement.

11. LICENSE KEY & USE REPORTING

You acknowledge that a security code owned and controlled by Company, or its affiliates (the "License Key") is required to render the Licensed Software operational on Your Hardware during the License Term. Once utilized to install the Licensed Software on Your Hardware, no other security code will be required for the Licensed Material to operate on such Hardware in accordance with the terms and restrictions contained in this Agreement and no other disabling device will prevent the Licensed Software from operating on Your Hardware during the License Term. Further, You acknowledge that the License Key shall expire upon the expiration of the current License Term and that upon such expiration the Licensed Software shall cease to operate unless and until another License Key is obtained from Company. You shall not attempt to crack, alter or otherwise derive the License Key. Company shall promptly (which in the event of any renewal of a License Term shall be prior to expiration of the current License Term) provide You with all necessary License Keys upon renewal of each License Term and upon any authorized transfer of the Licensed Software to any other Hardware permitted under Section 2(b) of this Agreement. Company reserves the right to gather data on license usage by You for each item of Licensed Software, including License Key numbers, server IP addresses, email addresses of users, domain counts and other information deemed relevant, to ensure that the Licensed Software is being used in accordance with the terms of this Agreement. Company expressly prohibits domain count overrides without prior written approval. You hereby consent to Company gathering and processing such usage information and agree not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any unauthorized use of the Licensed Software by You or other use by You in violation of the restrictions contained herein shall be deemed a material breach of this Agreement. In addition to the foregoing, within ten (10) business days of Your receipt of Company’s written request, You shall provide to Company a written report certifying to Company the number of licenses for Licensed Software installed, used or accessed by You, the identity of the applicable servers, Hardware upon which such licenses are installed and, to the extent applicable, the installation location and location and number of users accessing such licenses, together with such other information as may be requested by Company and necessary to confirm Your compliance with the terms of this Agreement. The auditing, reporting and certification rights and obligations set forth in this Section 11 shall survive termination of this Agreement for a period of eighteen months.

12. ENFORCEABILITY

If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, void, invalid or illegal, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

13. ENTIRE AGREEMENT

(a) You acknowledge that it has read this Agreement, understands it and agrees to be bound by its terms. You and Company further agree that, subject to clause (b) below, this Agreement, together with all Purchase Orders delivered in connection herewith, is the complete and exclusive statement of the agreement between You and Company and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement, including any shrink-wrap agreements, click-wrap agreements or demo or trial agreements which may accompany the Licensed Material or which may have been previously in force between the parties. Subject to clause (b) below, this Agreement may not be amended, modified, supplemented or altered except by a written agreement that is signed by both parties.

(b) UNDER NO CIRCUMSTANCES MAY THE TERMS OF THIS AGREEMENT BE AMENDED, MODIFIED, SUPPLEMENTED, ALTERED, SUPERSEDED OR REPLACED BY ANY NON-COMPANY INVOICE OR NON-COMPANY PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT DELIVERED BY YOU TO COMPANY. EACH PARTY ACKNOWLEDGES AND AGREES THAT, AS A CONVENIENCE TO YOU AND ONLY FOR YOUR INTERNAL ACCOUNTING PROCEDURES, YOU MAY DELIVER TO COMPANY YOUR INVOICE OR YOUR PURCHASE ORDER OR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTION CONTEMPLATED HEREUNDER AND THAT NO ACTION BY COMPNAY, INCLUDING COMPANY’S DELIVERY OF ANY LICENSED MATERIALS OR ACCEPTANCE OF PAYMENT, SHALL BE DEEMED TO BE ACCEPTANCE OF ANY OF THE TERMS OR CONDITIONS CONTAINED IN YOUR INVOICE OR YOUR PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT AND SUCH TERMS AND CONDITIONS SHALL BE VOID AND OF NO FORCE OR EFFECT, UNLESS ACCEPTED BY COMPANY PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY BOTH PARTIES.

14. TRIAL LICENSE

(a) If You have installed Evaluation Software (as defined below) and You are authorized by Company to evaluate such Evaluation Software, then only the terms and conditions of this Section 14 (including those Sections of this Agreement incorporated in this Section 14 by reference) will govern Your temporary use of such Evaluation Software (and no other terms of this Agreement shall apply to You or govern Your use of Evaluation Software) and upon subscription to a commercial license for such Evaluation Software, this entire Agreement, exclusive of this Section 14, shall apply to You and govern all use of such commercial Licensed Material.

(b) Company is the owner and provider of certain proprietary software and documentation that You may request to use, from time to time, on a temporary basis for the sole purpose of testing and evaluating such software prior to purchasing a commercial term license for such software (“Evaluation Software”). All installation and usage of Evaluation Software by You requires a temporary License Key or trial License Key to be issued by Company and You are only permitted to use Evaluation Software during the term of the temporary License Key or trial License Key issued by Company.

(c) Evaluation Software is provided to You solely for evaluation purposes for Your own testing and evaluation purposes (an “Evaluation”) and upon delivering a temporary License Key or trial License Key to You, Company hereby grants You a non-transferable, non-exclusive, limited license to operate and use the Evaluation Software for such Evaluation during the period commencing on the date You download the Evaluation Software and ending on the expiration of the temporary License Key or trial License Key (including any extensions thereof authorized by Company, the “Evaluation Period”). You agree not to cause or permit the reverse engineering, disassembly, modification, translation or decompilation of any Evaluation Software. You shall not copy the Evaluation Software, or create or develop any derivative software based upon the Evaluation Software.

(d) You acknowledge that all Evaluation Software incorporates confidential and proprietary information developed or acquired by Company and that all results of testing of the Evaluation Software, whether performed by You or another third party, are confidential. In no event will You publish or disclose the results of any testing or performance specifications of the Evaluation Software without Company’s express prior written consent. You shall not remove or deface of any confidentiality or proprietary notice placed on the Evaluation Software. The placement of copyright notices on Evaluation Software shall not constitute publication or otherwise impair their confidential nature of such information.

(e) ALL EVALUATION SOFTWARE PROVIDED BY COMPANY IS DELIVERED "AS IS, WHERE IS" AND COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FUSIONCHARTS DOES NOT WARRANT THAT THE EVALUATION SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. UNDER NO CIRCUMSTANCES WILL COMPANY OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE OR WHETHER BASED ON CLAIMS BY YOU OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO YOUR USE OF EVALUATION SOFTWARE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY’S OR ITS AUTHORIZED REPRESENTATIVES INCURRED IN ANY ACTION OR PROCEEDING RELATING TO YOUR USE OF EVALUATION SOFTWARE EXCEED ONE HUNDRED DOLLARS.

(f) The Evaluation and the evaluation license granted under this Section 14 shall automatically terminate immediately upon the earliest of (i) the expiration of the Evaluation Period, (ii) the date upon which You purchase a commercial license for such Evaluation Software and (iii) the date upon which either party notifies the other party of its termination of the Evaluation. Upon expiration of the Evaluation Period or the Evaluation, You shall cease using and shall uninstall and destroy the Evaluation Software unless You have purchased a commercial license for such Evaluation Software on or prior to such expiration.

(g) Sections 1, 5, 8, 12, 13 and 15(a) through 15(g) of this Agreement shall be deemed incorporated by this reference in this Section 14 and the Evaluation license granted under this Section 14.

15. MISCELLANEOUS

(a) You shall not assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity, whether by contract, merger or by operation of the law, without Company’s prior written consent. In the event of any merger of You or a sale of substantially all of Your assets in which You are not the surviving entity, You may assign or transfer any licenses granted under this Agreement; provided, that You provide Company with written notice of such transfer within thirty days of such merger or sale. Any assignment or delegation in breach of this Section 17(a) shall be void. This Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns.

(b) All notices or approvals required or permitted under this Agreement must be given in writing and delivered to the appropriate party at the address set forth in this Agreement or in any Purchase Order delivered in connection with this Agreement.

(c) The waiver of compliance with or breach of any term or condition of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other failure to comply or breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.

(d) THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF QUEBEC WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES. COMPANY AND YOU HEREBY IRREVOCABLY AGREE ON BEHALF OF THEMSELVES THAT THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY LITIGATION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE IN AN APPROPRIATE FEDERAL OR PROVINCIAL COURT IN THE PROVINCE OF QUEBEC LOCATED IN THE CITY OF MONTREAL.

(e) Unless otherwise specified herein, the rights and remedies of Company set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.

(f) This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of business organization or agency relationship.

(g) Headings used in this Agreement are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of this Agreement. This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the parties hereto.

(h) In consideration of the mutual covenants contained herein, including the rights and licenses granted to You herein, the parties hereto do hereby agree that for a period of two years following Your most recent purchase of any licenses or services, including Maintenance Service, from Company or its authorized representative, You shall not solicit, induce, hire, engage, or attempt to hire or engage any employee of Company, or in any other way interfere with Company’s contractual or employment relations with any of its employees, nor will You hire or engage or attempt to hire or engage any individual who was an employee of Company at any time during such two-year period.

16. LANGUAGE

It is the express wish of the Parties hereto that this Agreement be drafted in English.