Active Takeoff End User License Agreement
END-USER LICENSE AGREEMENT FOR THE “ACTIVE TAKEOFF” SOFTWARE
IMPORTANT – PLEASE READ THE TERMS AND CONDITIONS OF THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE. THIS DOCUMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL PERSON OR A SINGLE LEGAL ENTITY, WHO WILL BE REFERRED TO IN THIS AGREEMENT AS THE “USER”) AND QUOTER SOFTWARE INC. GOVERNING YOUR ACCESS TO AND USE OF THE “ACTIVE TAKEOFF” SOFTWARE, TOGETHER WITH ANY ASSOCIATED MEDIA AND DOCUMENTATION, WHETHER PRINTED, ONLINE OR ELECTRONIC (COLLECTIVELY, THE “SOFTWARE”). BEFORE INSTALLING, ACCESSING OR USING THE SOFTWARE, YOU MUST READ AND ACCEPT THE TERMS AND CONDITIONS SET OUT BELOW (THE “AGREEMENT”). BY ACCEPTING THE TERMS AND CONDITIONS OF THIS CONTRACT, OR OTHERWISE INSTALLING, ACCESSING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE LEGALLY BOUND BY IT. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT INSTALL, ACCESS OR USE THE SOFTWARE.
1. DEFINITIONS.
In this AGREEMENT, the following words and phrases, when capitalized, have the meanings given to them in this AGREEMENT or below:
a) “FEES” means the fees applicable to the access to and use of the SOFTWARE under the subscription plan associated with such access or use, whether such fees are paid by the USER or by a third party on the USER’s behalf.
b) “INTELLECTUAL PROPERTY RIGHTS” means all proprietary and intellectual property rights of any kind, whether registered or unregistered, including patents (and applications), copyrights, moral rights, industrial designs, trademarks, trade names, service marks, rights in software, databases and data compilations, know-how and trade secrets, and all other similar rights, in each case in any jurisdiction, including rights relating to the origin, design, development, programming, operation, functionality, configuration or provision of the SOFTWARE.
c) “PARTIES” means collectively the USER and QUOTER SOFTWARE INC.
d) “PERSONAL INFORMATION” means information concerning an identifiable individual or information considered to be personal information in accordance with the laws and regulations governing privacy in the province of Quebec, Canada, or in any jurisdiction whose privacy laws apply to the processing of PERSONAL INFORMATION under this AGREEMENT.
e) “SERVICES” means the services made available by QUOTER SOFTWARE INC. to the USER under this AGREEMENT and the subscription plan associated with the USER’s access to and use of the SOFTWARE.
f) “USER DATA” means any information or data uploaded to the SOFTWARE by the USER.
2. LICENSE GRANT.
QUOTER SOFTWARE INC. grants you a non-exclusive and limited license to install, access and use the SOFTWARE and the features for which the applicable FEES have been paid, solely for the purposes of your internal business operations and strictly in accordance with the terms and conditions of this AGREEMENT. The SOFTWARE is licensed to you; it is not sold to you.
3. INSTALLATION AND USE.
You are authorized to install, access and use the SOFTWARE only in accordance with the configuration, scope of use, and number of licenses authorized under the applicable subscription plan for which the applicable FEES have been paid. QUOTER SOFTWARE INC. is authorized to monitor the type and number of licenses in use, as well as the use of the SOFTWARE, through license keys. Within reasonable limits, you are also authorized to install copies of the SOFTWARE that are not intended for production use, for disaster recovery, emergency restart and back-up purposes, including for use at one or more disaster recovery sites.
4. RIGHTS, RESTRICTIONS, AND TERMS OF USE OF THE SOFTWARE.
4.1. Maintenance of Copyright Notices.
You may not remove or alter any copyright notice on any copy of the SOFTWARE.
4.2. Distribution.
You may not distribute licenses or registered copies of the SOFTWARE to third parties. Evaluation versions of the SOFTWARE may be made available by QUOTER SOFTWARE INC.
4.3. Rental.
You may not rent, transfer, or lend the SOFTWARE.
4.4. Support Services.
QUOTER SOFTWARE INC. may provide support services related to the SOFTWARE. Any additional code provided in connection with such support services will form part of, and be governed by, this AGREEMENT.
4.5. Updates.
The SOFTWARE may be temporarily unavailable while updates are performed, and QUOTER SOFTWARE INC. does not guarantee continuous availability during such periods. The SOFTWARE may be updated from time to time and new features may be added. QUOTER SOFTWARE INC. may make updates and new features available to the USER in its sole discretion and makes no commitment regarding the development of future versions or functionality. The USER acknowledges that this AGREEMENT is not based on any promise of future functionality or on any representation by QUOTER SOFTWARE INC. regarding future development. QUOTER SOFTWARE INC. will use reasonable efforts to notify USERS in advance of any major update.
4.6. Compliance with Applicable Local Laws.
You must comply with all applicable laws in connection with your use of the SOFTWARE.
4.7. USER Responsibility.
The SOFTWARE is a tool designed to assist the USER. It does not replace the USER’s professional expertise or judgment. The USER remains solely responsible for the use of the SOFTWARE, as well as for any decision, conclusion, or action taken based on the results, information, or content generated by the SOFTWARE.
5. PROHIBITED USES OF THE SOFTWARE.
Unless QUOTER SOFTWARE INC. provides its prior written authorization, the USER must not, directly or indirectly, including in particular:
a) use the SOFTWARE other than in accordance with this AGREEMENT, its intended purpose, and the provided documentation;
b) copy, reproduce, modify, adapt, translate, improve, transform, or create derivative works of the SOFTWARE, in whole or in part, except to the extent expressly authorized by this AGREEMENT;
c) decompile, disassemble, reverse engineer, or attempt to discover the source code, structure, algorithms, or underlying concepts of the SOFTWARE;
d) rent, sublicense, assign, sell, distribute, make available or otherwise commercially exploit the SOFTWARE for the benefit of any third party;
e) circumvent, neutralize, or infringe upon any technical, security, or access control measures of the SOFTWARE, including license management mechanisms;
f) use the SOFTWARE for any illegal, fraudulent, or abusive purposes, or in violation of applicable laws and regulations, including those relating to privacy, intellectual property, or competition;
g) use the SOFTWARE in a manner that may compromise its security, integrity, availability, or performance, or that of the systems, networks, or data of QUOTER SOFTWARE INC. or third parties;
h) knowingly introduce viruses, worms, Trojan horses, malware, or any other harmful code into the SOFTWARE or related systems;
i) use the SOFTWARE to develop, train, or improve a competing product or service, or for unauthorized competitive analysis;
j) permit any unauthorized person to access or use the SOFTWARE or exceed applicable usage limits (including the number of USERS, licenses or features).
Any breach of this section constitutes a material breach of this AGREEMENT and may result, in addition to any other rights or remedies available to QUOTER SOFTWARE INC., in the immediate suspension or termination of the access to the SOFTWARE and the SERVICES.
6. DATA.
6.1. Ownership.
All USER DATA is and will remain, at all times, the exclusive property of the USER. The USER authorizes QUOTER SOFTWARE INC. to use USER DATA only to the extent necessary to provide the SERVICES in connection with the USER’s use of the SOFTWARE, or as otherwise duly authorized by the USER, and in accordance with QUOTER SOFTWARE INC.’s privacy policy. QUOTER SOFTWARE INC. does not acquire any ownership rights in the USER DATA.
6.2. Representation regarding USER DATA.
The USER represents and warrants to QUOTER SOFTWARE INC. that it has all rights and authorizations necessary to upload USER DATA to the SOFTWARE and that any operations performed by the USER or QUOTER SOFTWARE INC. in respect of the USER DATA will not infringe the rights of any other person. The USER is also responsible for all access to and use of the SOFTWARE through its login credentials or by its USERS.
6.3. Confidentiality.
QUOTER SOFTWARE INC. agrees to keep USER DATA confidential and not to use such information for any purpose other than providing the SERVICES in connection with the USER’s use of the SOFTWARE.
7. PROTECTION OF PERSONAL INFORMATION.
7.1. Roles of the Parties.
With respect to the processing of PERSONAL INFORMATION contained in the USER DATA:
a) the USER is deemed to control the purposes for which PERSONAL INFORMATION is processed through the SERVICES;
b) the USER warrants to QUOTER SOFTWARE INC. that it has obtained all necessary consents to allow QUOTER SOFTWARE INC. to process the PERSONAL INFORMATION uploaded to the SOFTWARE in accordance with this AGREEMENT;
c) QUOTER SOFTWARE INC. will use PERSONAL INFORMATION solely in accordance with the USER’s instructions and as provided in this AGREEMENT and its privacy policy;
d) any action taken by a USER through the SOFTWARE interface shall be deemed to be a valid instruction of the USER in respect of the processing of PERSONAL INFORMATION; and
e) QUOTER SOFTWARE INC. is authorized to engage subcontractors for the processing of PERSONAL INFORMATION when necessary.
8. CONFIDENTIALITY.
8.1. Confidentiality.
QUOTER SOFTWARE INC. undertakes to keep strictly confidential any confidential information, including USER DATA, to which it may have access in connection with the provision of the SERVICES (the “CONFIDENTIAL INFORMATION”). QUOTER SOFTWARE INC. will protect the CONFIDENTIAL INFORMATION using the same degree of care and diligence that it uses to protect its own confidential information of a similar nature (and in any event, no less than a reasonable standard of care). The USER acknowledges that USER DATA may be disclosed to hosting providers and other service providers retained by QUOTER SOFTWARE INC. to the extent necessary to provide the SERVICES, in accordance with this AGREEMENT.
8.2. Exceptions.
QUOTER SOFTWARE INC.’s obligations regarding CONFIDENTIAL INFORMATION do not apply to any information:
a) that becomes publicly known through no fault of QUOTER SOFTWARE INC.;
b) that was already known to QUOTER SOFTWARE INC. prior to its disclosure by the USER;
c) that is independently developed by QUOTER SOFTWARE INC.; or
d) that is disclosed to QUOTER SOFTWARE INC. by a third party who is not bound by a confidentiality obligation to the USER.
8.3. Authorized Disclosure.
QUOTER SOFTWARE INC. may disclose and/or use the CONFIDENTIAL INFORMATION if compelled to do so by an order of a court or competent authority in accordance with applicable law, provided that reasonable steps have been taken, where possible, to notify the USER of such compelled disclosure or use and to allow the USER to take appropriate steps to protect the CONFIDENTIAL INFORMATION.
9. INTELLECTUAL PROPERTY.
The SOFTWARE, along with any updates, corrections, improvements, or subsequent versions, is the exclusive property of QUOTER SOFTWARE INC. and is protected by applicable intellectual property laws and international treaties. The SOFTWARE is licensed to the USER, not sold. No INTELLECTUAL PROPERTY RIGHTS in the SOFTWARE or its features are transferred to the USER, except to the extent expressly provided for in this AGREEMENT. You are not authorized to copy the SOFTWARE, except: (a) to make a back-up copy not intended for production; or (b) to install the components of the SOFTWARE for which you have acquired a license, on computers and for the purpose of running said SOFTWARE. With respect solely to the documentation included with the SOFTWARE, you are authorized to make a reasonable number of copies (in paper or electronic form), provided that such copies are used only by USERS licensed to use the SOFTWARE and are not republished or distributed to third parties. You must reproduce and include all copyright, trademark, and other proprietary notices of QUOTER SOFTWARE INC. and its suppliers on all copies of the documentation that you make. Except as expressly provided in the Copyright Act (R.S.C., 1985, c. C-42), any copy of the SOFTWARE made by you constitutes a breach of this AGREEMENT.
10. NO WARRANTIES.
To the fullest extent permitted by law, the SOFTWARE is provided “as is” and “as available”, without warranties, conditions, or representations of any kind. QUOTER SOFTWARE INC. expressly disclaims all warranties, conditions and representations, whether express, implied, statutory or otherwise, including any implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, title, non-infringement, accuracy, completeness, reliability, availability, security, or that the SOFTWARE will be error-free or free of harmful components. Without limiting the generality of the foregoing, QUOTER SOFTWARE INC. does not warrant that the SOFTWARE will meet the needs, requirements, or expectations of the USER; that operation of the SOFTWARE will be uninterrupted, timely, secure or error-free; or that any defect, bug or malfunction will be corrected. QUOTER SOFTWARE INC. assumes no responsibility for the accuracy, completeness, relevance, or reliability of any information, data, content, analysis, results, recommendations, links, or other elements generated, provided, or made accessible through the SOFTWARE. Use of the SOFTWARE is at the USER’s sole risk. Without limiting the generality of the foregoing, QUOTER SOFTWARE INC. does not warrant that the SOFTWARE, servers, systems, or electronic communications will be free of viruses, worms, Trojan horses, logic bombs, or other harmful components. No information, advice, or results obtained through the use of the SOFTWARE, whether from QUOTER SOFTWARE INC. or the SOFTWARE itself, shall be construed as creating any warranty or obligation not expressly provided for in this AGREEMENT. No additional warranties are provided by any reseller, distributor, partner, authorized retailer, agent, or third party, and none of such warranties bind QUOTER SOFTWARE INC. in any way.
11. LIMITATION OF LIABILITY.
To the fullest extent permitted by applicable law, and subject only to any mandatory provisions of law or public order that cannot legally be excluded or limited, QUOTER SOFTWARE INC., its affiliates, licensors, suppliers, hosting providers, subcontractors, partners, distributors, successors and assigns, and each of their respective shareholders, directors, officers, employees, agents and representatives (collectively, the “QUOTER PARTIES”) shall not be liable to the USER, or any third party, for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind whatsoever, nor for any loss of profits, revenue, business, contracts, customers, goodwill, reputation, anticipated savings, opportunities, data, or use, any corruption, loss, destruction or inaccuracy of data, any business interruption, or any cost of procurement of substitute goods, services, technology, consultants or professional advisors, arising out of or relating to this AGREEMENT, the SOFTWARE, the SERVICES, or their use, unavailability, performance or non-performance, regardless of the form, basis or theory of liability invoked, whether contractual, extracontractual, delictual, tortious, statutory, strict liability, negligence or otherwise, even if a QUOTER PARTY has been advised of the possibility of such damages.
Without limiting the generality of the foregoing, QUOTER SOFTWARE INC. shall have no obligation or liability whatsoever for the restoration, recovery, reconstruction, re-entry or replacement of any data, content or information, or for the costs associated therewith. The USER acknowledges and agrees that it is solely responsible for implementing and maintaining appropriate backup, archival, redundancy, cybersecurity and business continuity measures for its own systems, environments, content and USER DATA.
The USER acknowledges and agrees that the SOFTWARE and SERVICES are tools made available for assistance purposes only and do not constitute legal, professional, business, financial, compliance or other advice. The USER is solely responsible for reviewing, validating and independently verifying all information, data, content, outputs, analyses, recommendations and results generated by or obtained through the SOFTWARE or SERVICES, and for all decisions, actions and omissions based thereon. QUOTER SOFTWARE INC. shall have no liability whatsoever for the USER’s or any third party’s reliance on the SOFTWARE, the SERVICES, or any output derived therefrom.
Without limiting the foregoing, and to the fullest extent permitted by applicable law, the total aggregate and cumulative liability of all QUOTER PARTIES arising out of or relating to this AGREEMENT, the SOFTWARE or the SERVICES, under all causes of action and theories of liability, shall in no event exceed the FEES actually paid to QUOTER SOFTWARE INC. for access to and use of the SOFTWARE and/or the SERVICES during the three (3) months immediately preceding the first event giving rise to the claim. For greater certainty, all claims arising out of the same event or series of related events shall be deemed to constitute a single claim for purposes of applying the foregoing liability cap.
The limitations, exclusions and disclaimers set out in this AGREEMENT form an essential basis of the bargain between the parties, reflect the allocation of risk agreed between them, and shall apply notwithstanding any failure of essential purpose of any limited remedy.
To the extent that certain jurisdictions do not permit the exclusion or limitation of certain liabilities or damages, the foregoing exclusions, limitations and restrictions shall apply to the maximum extent permitted by applicable law.
12. TERM AND TERMINATION.
12.1. Termination by the USER.
To the extent applicable, the parties expressly waive the application of articles 2125 to 2129 of the Civil Code of Québec.
12.2. Termination by QUOTER SOFTWARE INC.
QUOTER SOFTWARE INC. may terminate this AGREEMENT and cease providing the SERVICES immediately if the USER breaches any obligation under this AGREEMENT and fails to cure such breach within ten (10) days after receiving written notice of the breach. In such an event, you must destroy all copies of the SOFTWARE in your possession.
12.3. Survival.
The provisions of this AGREEMENT relating to intellectual property, confidentiality, limitation of liability, indemnification and FEES payable to QUOTER SOFTWARE INC., and any other provisions that by their nature are intended to survive termination, will survive and continue in full force and effect notwithstanding any termination or expiry of this AGREEMENT.
13. FORCE MAJEURE.
Neither party shall be liable for any failure or delay in performing its obligations under this AGREEMENT, other than any obligation to pay FEES or other sums due, to the extent such failure or delay results from an event beyond its reasonable control, including civil commotion, war, fire, flood, earthquakes, severe weather, telecommunications failures, electrical outages, network failures, governmental actions, strikes or labour disputes, terrorism, pandemics, epidemics, quarantines, public health emergencies, acts of God, or any other event, whether or not similar to the foregoing, beyond the reasonable control of the affected party and rendering performance under this AGREEMENT impracticable or impossible. The affected party shall use reasonable efforts to notify the other party of the occurrence of such event within ten (10) business days after becoming aware of it.
14. GENERAL PROVISIONS.
14.1. Governing Law.
This AGREEMENT (including all instruments incorporated by reference) shall be governed in all respects and interpreted in accordance with the laws in force in the Province of Quebec, including the applicable federal laws of Canada, including any matter relating to its validity or application.
14.2. Dispute Resolution.
The parties agree to designate the judicial district of Montreal, Province of Quebec, Canada, to the exclusion of any other judicial district that might have jurisdiction, as the proper venue for the institution and hearing of any legal proceedings arising out or relating to this AGREEMENT.
14.3. Non-Waiver.
The failure of a party to exercise its rights under this AGREEMENT or to exercise them late shall not be deemed a waiver of that party’s right to exercise such rights. Any waiver of a right provided for in this AGREEMENT shall be valid only if made in writing.
14.4. Severability.
To the extent possible, each provision of this AGREEMENT shall be interpreted so as to be enforceable and valid under applicable law; however, in the event that any provision of this AGREEMENT is deemed invalid, illegal, or unenforceable for any reason under the applicable laws or regulations of any jurisdiction, such invalidity, illegality, or unenforceability shall not affect the validity of the remaining provisions of this AGREEMENT.
14.5. Assignment.
The USER may not assign or otherwise transfer its rights and obligations under this AGREEMENT without the prior written consent of QUOTER SOFTWARE INC., which shall be at the sole discretion of QUOTER SOFTWARE INC.
QUOTER SOFTWARE INC. may assign its rights and obligations under this AGREEMENT and any other agreement governing the SERVICES provided to the USER as part of the disposition of all or part of its assets.