This End User License Agreement, including the Purchase Agreement which incorporated by reference herein (this "Agreement"), is a binding agreement between Bourgault Industries Limited ("Licensor") and you as the licensee of the Software ("Licensee"). This Agreement governs your use of the Software (as defined hereinafter).
LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE OR BY ACTIVATING OR OTHERWISE CONNECTING THE APP SOFTWARE TO THE IMPLEMENT SOFTWARE, YOU ARE (A) ACCEPTING AND AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT WITH RESPECT TO THE APP SOFTWARE THAT HAS BEEN DOWNLOADED AND INSTALLED ON YOUR DEVICE AND THE IMPLEMENT SOFTWARE TO WHICH THE APP SOFTWARE CONNECTS ON THE IMPLEMENT; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE OR SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S SOFTWARE.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
1.2 “Additional GPS Services Fee” means the amount listed on the applicable Purchase Agreement for which Licensee subscribed to receive Additional GPS Services to the extent such services are provided by Licensor.
1.3 “App Software” means the wireless iOS-based Bourgault Intelligent Control application that may be downloaded by the Licensee from the Apple Store and installed on a tablet display.
1.4 "Documentation" means reference guides, user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
1.6 "Implement Software" means the backend software running on the internal personal computer of the Implement which controls, monitors, and coordinates the operations and functionality of the Implement.
1.7 "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.9 "Licensee" has the meaning set forth in the preamble.
1.10 "Licensor" has the meaning set forth in the preamble.
1.12 “Purchase Agreement” means the agreement pursuant to which the Licensee purchased or leased the Implement from Licensor or its authorized dealers or distributors.
1.13 “Software” means both the App Software and the Implement Software.
1.14 "Third Party" means any Person other than Licensee or Licensor.
1.15 "Update" has the meaning set forth in Section 7.2.
2. License. Subject to and conditional on Licensee's purchase of the Implement and Licensee's strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable limited license to use the Software solely as set forth in this Section 2, in accordance with the Documentation, and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This license grants Licensee the right to download, install, and use in accordance with the Documentation, the App Software on a device as an application for the Licensee’s own internal or personal use. This License also grants Licensee the right to use the Implement Software as pre-installed in the purchased implement (for greater certainty, the Licensee is not permitted to download or install the Implement Software).
4.1 Licensee shall not, directly or indirectly:
(iv) military or aerospace applications, weapons systems, or environments;
5. Responsibility for GPS and Use of Software.
5.1 Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by any Person to whom Licensee may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this Agreement.
5.2 Licensee acknowledges that Software requires GPS services to function. In the event the Implement is not equipped with a Bourgault GPS receiver, Licensee shall be responsible for obtaining an adequate GPS solution for use in connection with the Software at the Licensee’s sole cost. Licensees with an Implement equipped with a Bourgault GPS receiver shall receive basic GPS services compatible with such receiver pursuant to the terms of this License, and for which Licensor disclaims all liability. Any Additional GPS Services may be subject to an additional cost as described in Section 10.2.
6.1 The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 4. Licensee shall not, and shall not attempt to, remove, disable, bypass, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
6.3 If any of the measures taken or implemented under this Section 6 determines that the Licensee's use of the Software (a) exceeds or exceeded the use permitted by this Agreement, or (b) is not is full compliance with this Agreement, then Licensee shall, within three (3) days following the date of Licensor's written notification thereof, pay to Licensor any applicable retroactive Fees for such excess use and cure any breaches under this Agreement to bring Licensee’s use into compliance.
6.4 Licensor shall also have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Licensee, if Licensee fails to comply with this Section 6. Licensor's remedies set forth in this Section 6.3 are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.
7.1 Subject to Section 7.3, the license granted hereunder entitles Licensee to basic software maintenance and support services.
7.3 Licensor has no obligation to provide maintenance and support services, including Updates:
(a) for any but the most current or immediately preceding version or release of the Software;
(b) for any copy of Software for which all previously issued Updates have not been installed;
(c) if Licensee is in breach under this Agreement; or
8. Collection and Use of Information.
(a) Licensee’s ongoing usage of the Software;
(b) the provision of maintenance and support services; and
(c) security measures included in the Software as described in Section 6.
(c) collaborating with OEMs whose equipment is used in connection with the Implement for any purpose such OEM deems appropriate, in their sole discretion.
10.1 All Fees are payable in advance in the manner set forth in the Purchase Agreement and are non-refundable. Licensor reserves the right to charge additional Fees for access to supplementary services provided through the Software.
10.2 Notwithstanding Section 10.1, in the event Licensee elects to subscribe for Advanced GPS Services provided by Licensor, Licensee shall pay to Licensor the Advanced GPS Services Fee in the manner and amount prescribed by Licensor. Licensee shall be solely responsible for fees associated with Advanced GPS Services the Licensee subscribes to that are not provided by Licensor.
11.1 Licensee may terminate this Agreement and/or Licensee’s use of Software at any time.
11.3 Upon termination of this Agreement, the license granted hereunder shall also terminate, in which event Licensee will not be entitled to a refund or credit of unused Fees (if any) pre-paid by Licensee for access to the Software. No termination shall affect Licensee's obligation to pay all Fees that may have become due before such termination.
12. DISCLAIMER OF WARRANTIES. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE LICENSOR PROVIDES NO CONDITION, WARRANTY, OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED
13. LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY, UNDER NO CIRCUMSTANCES SHALL LICENSOR, ITS AFFILIATES OR ITS THIRD PARTY SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTIES FOR DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ANY LOSS OR DAMAGE CAUSED BY THE SOFTWARE; ANY PARTIAL OR TOTAL FAILURE OF THE SOFTWARE; PERFORMANCE, NONPERFORMANCE OR DELAYS IN CONNECTION WITH ANY INSTALLATION, MAINTENANCE, WARRANTY OR REPAIRS OF THE SOFTWARE, DAMAGES FOR CROP LOSS, DAMAGE TO LAND, DAMAGE TO MACHINES, LOST PROFITS, LOSS OF BUSINESS OR LOSS OF GOODWILL, LOSS OF USE OF EQUIPMENT OR SERVICES OR DAMAGES TO BUSINESS OR REPUTATION ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY ASPECT OF THIS LICENSE AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND WHETHER OR NOT LICENSOR, ITS AFFILIATES OR ITS THIRD PARTY SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR'S CUMULATIVE LIABILITY TO YOU OR TO ANY OTHER PARTY FOR ANY LOSSES OR DAMAGES RESULTING FROM ANY CLAIMS, LAWSUITS, DEMANDS, OR ACTIONS ARISING FROM OR RELATING TO USE OF THE SOFTWARE EXCEED YOUR TOTAL PAYMENT FOR THE LICENSE OF THE SOFTWARE.
14.1 Governing Law and Forum. This Agreement and all related documents and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Saskatchewan and the federal laws of Canada applicable therein. The Parties hereby agree to irrevocably submit to the non-exclusive jurisdiction of the courts of the Province of Saskatchewan in respect of all legal proceedings concerning the interpretation or enforcement of this Agreement, agree that any such court is a proper venue therefor, and irrevocably waive the defense of an inconvenient forum.