2.1. LICENSED SOFTWARE means all software, Underlying Software and Documentation delivered pursuant to this Agreement, as listed in Exhibits “A”, “B” where applicable and shall include all Error Corrections, modifications, improvements, enhancements, additions, Underlying Software, Updates, releases and versions thereof.

2.2. NEW PRODUCTS Those products, software and services which are added to this Agreement by mutual agreement of the two parties following its execution. When such New Products are added to this Agreement then for purpose of this Agreement, such New Products shall be considered “Products”.

2.3. LICENSOR INTELLECTUAL PROPERTY RIGHTS All United States and foreign patents, applications for patents, copyrights, mask works, trade secrets and other intellectual property rights relating to the design and development of Products, and which are now or hereafter owned, controlled or possessed by Licensor, including any such rights licensed to Licensor by any third party.

2.4. LICENSOR KNOW-HOW All information and data of Licensor (whether confidential or not) which is necessary and sufficient to develop and operate, and which is now or hereafter owned, controlled or possessed by Licensor, including all, test information, software (including source and object code listings and supporting documentation), manuals, basic process steps and vendor lists.

2.5. UNDERLYING SOFTWARE means a binary executable version of a certain computer program which Licensor has either created or has the ownership of or a licensable right in and which is a portion of one of the software programs identified as Licensed Software in Exhibit “A” and Exhibit “B”, including Updates and Error Corrections.

2.6. DERIVATIVE PRODUCT means any work derived from, the Underlying Software, which derivation was created or developed, at the expense of, or on the initiative of Licensee.

2.7. DOCUMENTATION shall mean all written materials as listed in Exhibit “A” and Exhibit “B”.

2.8. CONFIDENTIAL INFORMATION means information concerning the business, customers, and/or products of a party to this Agreement that is of substantial value to that party, which value would be impaired if such information were disclosed to third parties and which is marked “proprietary” or “confidential” when disclosed, or if disclosed orally, is reduced to writing and delivered to the receiving party as such within thirty (30) days after the initial disclosure. Notwithstanding the foregoing, the Underlying Software and the Licensed Software, excluding Documentation, shall be deemed to be the Confidential Information of Licensor, whether or not marked as such.

2.9. SUPPORT CONTACTS means the persons designated by Licensee in Exhibit “A” who are the primary point of contact to communicate with Licensor on any problems, questions, and/or issues related to the Licensed Software.

ERROR means a failure attributed to the Licensed Software or the Documentation, which causes the Licensed Software to deviate materially from all portions of the Documentation except that portion of the Documentation that contains disclaimers against errors in the documentation software and fitness for a particular purpose.

2.11. ERROR CORRECTION means, either, a software modification, patch, or addition that, when made or added to the Licensed Software, establishes material conformity of the Licensed Software to the Documentation.

2.12. UPDATE means any modification or addition that, when made or added to the Licensed Software, fixes bugs and may provide functionality enhancements, but does not change the overall utility or functional capability. An update generally includes all Error Corrections provided as patches for the current version of the Licensed Software.

2.13. UPGRADE means any modification or addition that, when made or added to the Licensed Software, substantially changes the overall utility or functional capability. Upgrades are denoted by major release level changes.

3.1 LICENSE Subject to the terms and conditions of this Agreement, Licensor hereby grants Licensee non-exclusive rights to provide the use of the Licensed Software to their customers as defined in Exhibit “A” and Exhibit “B”, attached hereto.

4.1. FEES Licensee(s) shall pay the licensor a set fee based on license and usage from the end users, according to the terms of Exhibit “A”, “B”. Licensee(s) agrees to pay all such invoices at the beginning of every month.

4.2. REPORTS The software can produce reports to the Licensees detailing the usages of the said softwares and web applications as detailed in Exhibit “A” and Exhibit “B”.

4.3. AUDIT RIGHTS Licensor agrees to make and to maintain until the expiration of two (2) years after each fee report issued under this Agreement, sufficient books, records and accounts to confirm Licensees’ payment obligations hereunder. Licensee shall have web access to their own reports and that of their users.

4.4. PAYMENTS. All payments of fees from licensees are payable to Licensor.

4.5. DEFAULTING ON PAYMENTS Failure to pay your licensing fees on time may result in the immediate inactivation of the software application.

5.1. LICENCED SOFTWARE. Licensee shall not be an owner of any copies of the Licensed Software, but, rather, is licensed pursuant to this Agreement to use, or have their clients use such copies. Licensee acknowledges and agrees that, as between Licensee and Licensor, all right, title and interest in the Licensed Software and any part thereof, including, without limitation, all rights to patent, copyright, trademark and trade secret rights, Licensor Intellectual Property Rights, Licensor Know-How, any Derivative Product, any Upgrade, Underlying Software and all other Intellectual Property Rights therein and thereto, and all copies thereof, in whatever form, including any written Documentation shall at all times remain solely with Licensor.

5.2. Licensee acknowledges that the Licensor generated Website pages may contain a fixed footer set by Licensor that may contain, among other things, a link to a Licensor end user privacy policy and end user terms of service policy, and each may be updated by Licensor from time to time. Licensees agree not to interfere with the display of or links contained in such fixed footer.

5.3. Any images or templates provided by Licensor are not for resale as a digital product and are limited to a one time printed use.

6.1. GENERAL. Licensor and Licensee(s) agree to keep confidential and not to disclose or make available to any third party Confidential Information received from the other in any form without the express written approval of the other. Each party agrees not to use such Confidential Information except to the extent necessary to perform under this Agreement, and neither party shall intentionally circulate the Confidential Information of the other party within its own organization except to those with a specific need to know.

Licensee(s) shall retain in strict confidence the Licensed Software, Licensor Know-How, any Derivative Product, any Upgrade and the Underlying Software and use only as expressly licensed herein. Licensee(s) agrees that it will under no circumstances distribute or in any way disseminate or disclose the Licensed Software to third parties, except as expressly provided in this Agreement.

The obligations of both parties recited herein shall terminate with respect to any portion of such Confidential Information when and to the extent it is or becomes: (a) part of the public domain through no fault of the other party: (b) communicated by the disclosing party to a third party free of any obligation of confidence: (c) independently developed by the receiving party without access to or use of the Confidential Information of the disclosing party: (d) known to the receiving party free of any obligation of confidence from a source other than the disclosing party without breach of this Agreement and not otherwise in violation of the disclosing party’s rights.

The obligations of this Section 5.1 with respect to Confidential Information, other than Licensed Software, shall cease upon the fifth anniversary of the initial disclosure of such Confidential Information.

7.1. LICENSOR REPRESENTS AND WARRANTS THAT LICENSOR OWNS ALL RIGHTS AND TITLE TO THE LICENCED SOFTWARE OR OTHERWISE HAS SUFFICIENT RIGHTS TO GRANT LICENSEE(S) THE LICENSES GRANTED HEREIN. LICENSOR FURTHER WARRANTS THAT THE LICENSED SOFTWARE IS SUBSTANTIALLY FREE FROM PROGRAM ERRORS AND THAT IT FULLY CONFORMS WITH THE DOCUMENTATION AS LISTED IN EXHIBIT “A” AND EXHIBIT “B” EXCEPT THE PORTION OF THE DOCUMENTATION THAT CONTAINS DISCLAIMERS AGAINST ERRORS IN SOFTWARE, EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES. THE LICENSED SOFTWARE IS PROVIDED “AS IS.” LICENSOR MAKES NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND LICENSOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, WILL MEET LICENSEE’S REQUIREMENTS, OR THE LICENSED SOFTWARE WILL OPERATE WITH THE COMBINATION OF HARDWARE AND SOFTWARE SELECTED BY LICENSEE.

7.2. The Licensee acknowledges that it has sole responsibility for all User Files stored on Licensor servers. Licensee acknowledges and agrees that Licensor will not be responsible for any failure of the Services provided. Failure of Services include failing to store a User File, the deletion of a User File stored on the servers, or for the corruption of or loss or any data, information or content contained in a User File.

7.3. The Licensee acknowledges that it has sole responsibility to monitor the content of its own materials and its clients’ materials to determine its right or its client’s right, if any, to download, reproduce, distribute or otherwise use, any media assets provided to such clients hereunder. It is further expressly agreed that the Licensee shall have sole responsibility to secure from each of its clients, any and all rights necessary to use such client’s media assets.

7.4. The Licensee expressly understands and agrees that the services to be made available to it hereunder are made available to it without warranties of any kind whatsoever either express or implied. Licensee acknowledges and agrees that under no circumstances will Licensor be liable to it or to any of Licensee’s clients for any claims or damages relating to delivery or any interruption of the services, including, without limitation, any loss of revenue or profits or any liability to third parties.

7.5. If You are located in the European Economic Area (EEA) or have any visitors in the EEA, You represent and warrant that You use the Service in accordance with the GDPR, including that You:

a. will clearly describe in writing how You plan on using any Data processed, including for Your use of Our Service. We have developed some model wording you can use for this (please seek advice from Your own counsel before using it!);
b. have complied, and will comply, with all regulations, as well as Data protection, electronic communication, and privacy laws that apply;
c. have processed all Data relating to any individual in compliance with all Data protection laws and regulations; and
d. You agree to indemnify and hold us harmless from any losses, including attorney fees, that result from Your breach of any part of these warranties;
e. You further agree that, if applicable to you, you have signed a Data Processing Agreement.

7.6. In the course of providing our service, RACAD/W2P may process personal data on your behalf. In order to outline specifics of how we will perform this processing and what our obligations are as well as the obligations of our users/customers, we encourage to have a Data Processing Agreement (DPA) in place with anyone that uses our service and requests it. This document will form part of a contract of service with RACAD/W2P (as the Data Processor) and our users/customers (as the Controllers). The DPA reflects the parties’ agreement with regard to the processing of personal data performed using our service. Upon RACAD/W2P’s receipt of the validly completed and signed Agreement, this Agreement shall be in full force and effect.

8.1. TERM. This Agreement shall become effective upon the Effective Date and shall be perpetual provided neither party terminates or has terminated this Agreement under the terms and conditions herein.

8.2. TERMINATION. This Agreement may be terminated by either party upon notice if the other party (i) breaches any material term or condition of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof: provided, however, that if such breach cannot be cured within such thirty (30) day period, but the breach is capable of cure within a reasonable period of time which is acceptable to the other party and the breaching party diligently pursues such cure, the breaching party shall be allowed such agreed time period to cure such default, (ii) becomes the subject of any voluntary or involuntary proceeding under the Canadian Bankruptcy Code or insolvency proceeding and such proceeding is not terminated within thirty (30) days of its commencement, (iii) ceases to be actively engaged in business. Additionally, Licensee has no right to terminate this Agreement until the expiry date listed in the sign up form.

9.1. USE. During the term of this Agreement, Licensee(s) shall have the right to indicate to the public in the Territory that it utilizes the Licensed Software, and to advertise such utilization under Licensor Intellectual Property Rights, the trademarks, marks, and trade names (“Licensee’s Trademarks”). Nothing herein shall grant to Licensee any right, title or interest in Licensor’s Intellectual Property Rights. At no time during the term of this Agreement shall Licensee challenge or assist others to challenge Licensor’s Trademarks or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to those of Licensor.

10.1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES AGREE THAT THIS SECTION 10 REPRESENTS REASONABLE ALLOCATION OF RISK

11.1 Any obligation Licensor may have to provide support, updates or maintenance to the Licensee shall be pursuant to a Support Agreement pursuant to Exhibit “A” and Exhibit “B” Licensee shall have the sole obligation to support all Licensee Product(s) distributed by Licensee.

12.1. Indemnity. Licensor agrees at its own expense, to defend or at its option to settle, any claim or action brought against Licensee to the extent that it is based on a claim that the Licensed Software, when used or distributed within the scope of this Agreement, infringes any patent, copyright, trademark or trade secret of any third party; and Licensor agrees to pay any settlements entered into or damages finally awarded against Licensee to the extent based on such a claim; provided that Licensee provides Licensor with (i) prompt written notice of such claim or action, (ii) sole control and authority over the defense or settlement of such claim or action and (iii) proper and full information and reasonable assistance to defend and/or settle any such claim or action. Notwithstanding the above, Licensee shall be entitled at its option and cost to retain its own counsel, which counsel shall participate in all proceedings in a manner consistent with the above provisions. If a final injunction is entered, or Licensor believes, in its sole discretion, is likely to be entered, prohibiting Licensee from exercising its right to use the Licensed Software granted hereunder, Licensor, at its sole option and expense, may either (i) procure for Licensee the right to use and distribute the Licensed Software as provided herein, (ii) replace the Licensed Software with other non-infringing products; (iii) suitably modify the Licensed Software so that it is not infringing; or(iv) accept return of the Licensed Software and refund the amortized value of such Licensed Software to Licensee. Licensor will not be liable for any costs or expenses incurred without its prior written authorization.

12.2. DISCLAIMER. THE FOREGOING PROVISIONS OF THIS SECTION 12 STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF LICENSOR AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT RESPECTING THE LICENSED SOFTWARE.

13.1. GOVERNING LAW. This Agreement shall be interpreted and governed by the laws of the Province of Ontario, Canada, without reference to conflict of laws principles.

13.2. ENTIRE AGREEMENT. This Agreement, constitutes the entire Agreement between the parties hereto with respect to the subject matter hereof and supersedes and cancels all previous registrations, agreements, commitments and writings in respect thereof.

13.3. USAGE. Licensee acknowledges that any use of the System for commercial purposes by Licensee shall be deemed to constitute acceptance of the services under this Agreement and Usage agreement. As well, Licensee acknowledges that substantial conformance of the System to the mutually agreed specifications shall also constitute acceptance.

13.4. MODIFICATION. No Modification to this Agreement, nor any waiver of any rights, shall be effective unless assented to in writing by the party to be charged, and the waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default.

13.5. ASSIGNMENT. This Agreement and the license provided hereunder are not assignable without the prior written consent of Licensor which shall not be unreasonably withheld. Any attempt at assignment without such consent shall be null and void and of no force and effect.

13.6. DISPUTES. The parties will attempt to settle any claim or controversy arising out of this Agreement through good faith negotiations and mutual cooperation. If those attempts fail, then 30 days following delivery of a notice of dispute, not resolved, the dispute shall be referred to a single arbitrator for resolution in accordance with the Arbitration Act (Ontario) or any successor or replacement statute.
The use of such a procedure shall not be construed to affect adversely the rights of either party under the doctrines of laches, waiver or estoppel. Nothing in this paragraph shall prevent either party from resorting to judicial proceedings if: interim resort to court is necessary to prevent serious and irreparable injury to a party or to others. This section shall not apply to claims or disputes relating to intellectual property rights.

13.7. SEVERABILITY. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The parties agree to renegotiate in good faith any term held invalid and to be bound by the mutually agreed substitute provision.

13.8. NO WAIVER. The failure of either party to enforce any term or condition of this Agreement shall not constitute a waiver of that party’s rights to enforce subsequent breaches of any term or condition under this agreement.

13.9. NOTICES. Any notices required to be given under this Agreement shall be in writing and addressed to the respective party at the address shown on the first page of this Agreement or such other address as may be provided by each party from time-to-time. Notices shall be effective when received and shall be sent by certified or registered mail, return receipt requested, or by overnight courier.

13.10. FORCE MAJEURE. Neither party shall be liable to the other for its failure to perform any of its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed because such services were rendered impracticable or impossible due to circumstances beyond the responsible party’s reasonable control, provided that the party experiencing the delay promptly notices the other of the delay. The terms and conditions on Exhibits “A” and Exhibit “B” are attached hereto and made a part hereof.