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QUARC HOME END USER LICENSE AGREEMENT

QUANSER QUARC HOME END USER LICENCE AGREEMENT

THIS QUANSER QUARC HOME END USER LICENCE AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“YOU”, “YOUR”), AND QUANSER INC. (“QUANSER”) WITH AN OFFICE AT 119 SPY COURT, MARKHAM, ONTARIO, L3R5H6, CANADA (TOGETHER THE “PARTIES” AND INDIVIDUALLY A “PARTY”). 

PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE APPROPRIATE BUTTON. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE QUANSER QUARC HOME SOFTWARE SOFTWARE COVERED BY THIS AGREEMENT.

THE QUANSER QUARC HOME SOFTWARE SOFTWARE MAY CONTINUE TO CHANGE OVER TIME AS QUANSER REFINES AND/OR ADDS MORE FEATURES. QUANSER MAY STOP, SUSPEND, OR MODIFY THE QUANSER QUARC HOME SOFTWARE SOFTWARE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU. QUANSER MAY ALSO REMOVE ANY FEATURES FROM THE QUARC HOME SOFTWARE IN ITS SOLE DISCRETION.

  1. Definitions. Unless the context requires otherwise, the following terms have the meanings set out below (and where the context so admits, the singular shall include the plural, and vice versa).

“Documentation” means the applicable installation guide and other standard end user documentation, including, any safety instructions, codes of conduct, guidelines, or usage rules prepared and supplied by Quanser for the specific type and version of the Quanser QUARC Home Software.

“Desktop Product” means any device including desktop or laptop devices including notebook computers and ultraportable or convertible devices running a desktop operating system on which the Quanser QUARC Home Software has been designed and authorized by Quanser to operate.

“Quanser Website” means the website that may be used for documentation or marketing purposes.

“Quanser QUARC Home Software” means the Quanser proprietary desktop software components and applications provided to You under this Agreement (in whatever form, medium or manner provided or subsequently installed or used.

  1. Grant of Licence

Subject to the terms and conditions herein, this Agreement grants You a limited, non-sublicensable, non-exclusive, non-transferable right to install, run, and use a copy of the Quanser QUARC Home Software on a Desktop Product. The Quanser QUARC Home Software is licensed, not sold.

If You are acquiring the QUARC Home Software on a subscription basis or as part of a free trial, then the license rights set out above apply only for the time period for which You have paid the requisite subscription fees or for the time period authorised by Quanser or its authorised distributor, as the case may be.

In all cases, the license(s) granted under this Agreement, only permit You to use the Quanser QUARC Home Software only for Your own internal or personal purposes.

Updates and Upgrades. This Agreement and the licenses granted herein, do not imply any rights or entitlement to future upgrades or updates of the Quanser QUARC Home Software. Notwithstanding the foregoing, the Quanser QUARC Home Software may include functionality to automatically check for updates or upgrades, and You may be required to update the Quanser QUARC Home Software or Third Party Components in order to continue to access or use the QUARC Home Software. Quanser may (but is not obligated to) make updates or upgrades available to You from time-to-time. Any updates or upgrades provided to You by Quanser under this Agreement shall be considered QUARC Home Software. For clarity, Quanser may at any time, modify the functionality of the QUARC Home Software via upgrade, update, or otherwise at any time in its sole discretion.

Beta Products. If the QUARC Home Software is identified as pre-commercial, evaluation, “alpha” or “beta” software (“Beta Software”), the license rights set out above with respect to Your use of such Beta Software apply only for the time period authorised by Quanser (“Test Period”) and solely to the extent necessary to enable You to test and provide Feedback to Quanser regarding the Beta Software.  Such license will automatically terminate upon the expiration of the Test Period, which period may be extended or terminated by Quanser at any time, in its sole discretion, but, unless You are in breach of this Agreement, Quanser will, if feasible, use commercially reasonable efforts to provide You with prior notice of any change to the duration of the Test Period.  Notwithstanding the Test Period, You acknowledge and agree that Quanser may include technical measures in the Beta Software that render it inoperable after a specified period of time and You agree that You will not circumvent such technical measures, nor attempt to do so.  In consideration of the grant of license to the Beta Software, You agree that You will provide Quanser with Feedback on Beta Software as Quanser reasonably requests, including ongoing feedback regarding bugs and faults experienced during the Test Period, without any compensation or reimbursement of any kind from Quanser.  Quanser may specifically request that You complete a survey related to Beta Software and You agree to complete any such surveys.  YOU ACKNOWLEDGE AND AGREE THAT ALL TESTING, EVALUATION, AND USE OF BETA SOFTWARE IS DONE ENTIRELY AT YOUR OWN RISK.

  1. Ownership and Limits to Use

You do not acquire any ownership right, title or interest in or to any intellectual property or other proprietary rights, including patents, designs, trademarks, copyright, database rights or rights in any confidential information or trade-secrets, in or relating to Your QUARC Home Software. You also do not acquire any license rights in or related to Your QUARC Home Software, other than the rights expressly licensed to You under this Agreement, in the associated Documentation, or in another mutually agreed upon written agreement that You may have with Quanser. Quanser expressly reserves all rights with respect to the Quanser QUARC Home Software and Documentation not expressly granted by this Agreement. You acknowledge that this Agreement shall provide to You only a limited license as set forth herein during the term of this Agreement.

  1. Rules of Use for Quanser QUARC Home Software

You are responsible for all activities with respect to Your Quanser QUARC Home Software Bundle undertaken by You and You will ensure that:

  1. a) You only use the Quanser QUARC Home Software in accordance with this Agreement, all applicable laws and regulations, and the applicable Documentation for the Quanser QUARC Home Software;

(b) You have the right and authority to enter into this Agreement;

(c) You do not knowingly, after making such inquiries as a reasonable person in Your position would undertake, use or permit others to use the Quanser QUARC Home Software in a manner that in Quanser’s judgment, acting reasonably, interferes with, degrades or adversely affects any software, hardware, system, network, or service, including any part of Your or any other end user’s Quanser QUARC Home Software, used by any person, including Quanser, or otherwise has a detrimental effect upon Quanser, and You will immediately cease any such activity upon Quanser delivering notice of same to You;

(d) You do not sell, rent, lease, or transfer, or attempt to sell, rent, lease, or transfer, the Quanser QUARC Home Software, or any part thereof, made available to You to any other person;

(e) You cooperate with Quanser and provide information requested by Quanser to assist Quanser in investigating or determining whether there has been a breach of this Agreement.  You hereby authorise Quanser to cooperate with:  (i) law enforcement authorities in the investigation of suspected criminal violations; (ii) third parties in investigating acts in violation of this Agreement; and (iii) system administrators at Internet service providers, networks or computing facilities in order to enforce this Agreement; and

(f) You may not modify, create derivative works, or alter in any manner the Quanser QUARC Home Software or the Documentation (including translation or localisation) or take part in any such an effort initiated by a third party.

  1. Confidentiality and No Reverse Engineering

You acknowledge and agree that the Quanser QUARC Home Software was: (a) developed at considerable time and expense by Quanser; and (b) contain confidential information including the trade-secrets of Quanser. Without limiting the foregoing, for Beta Software, confidential information includes the appearance, ‘look and feel’, performance, specifications, features and functionality of software, which information may not be discussed or shown to the public by You in any manner until publicly released by Quanser.  This Agreement gives You no right to obtain from Quanser any source code for the Quanser QUARC Home Software and, except to the extent that Quanser is expressly precluded by law from prohibiting these activities, You agree that You will not alter, modify, adapt, create derivative works, translate, deface, or Reverse Engineer the Quanser QUARC Home Software or attempt to do so, or permit, acquiesce, authorise or encourage any other party to do the same.  For the purpose of this Agreement, “Reverse Engineer” includes any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing (including any aspect of “dumping of RAM/ROM or persistent storage”, “cable or wireless link sniffing”, or “black box” reverse engineering) data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code), service, or hardware or any method or process of obtaining or converting any information, data or software from one form into a human-readable form.

  1. Additional Terms

You may be required to agree to additional terms and conditions with Quanser in relation to Third Party Components (e.g. open source components) and in order to use certain features.  With respect to Third Party Components made available to You by Quanser, if the Third Party Components are not accompanied by a separate license or terms of service, its use shall be subject to the terms and conditions of this Agreement as though it were the Quanser QUARC Home Software; provided that such Third Party Components is provided to You by Quanser “AS IS” and “AS AVAILABLE”, with no express or implied conditions, endorsements, guarantees, representations or warranties, and as between You and Quanser, the limitations and exclusions of liability and disclaimers set out in this Agreement shall apply, but the refund provisions set out in this Agreement shall not apply.

  1. Term

This Agreement shall be effective upon Your agreeing to be bound by the terms and conditions of this Agreement (as described in the preamble above) and shall continue in effect unless terminated in accordance with the provisions set out herein.

  1. Remedies and Termination

In addition to any other of Quanser’s rights or remedies set forth in this Agreement:

(a) If You breach this Agreement, Quanser or its agent may, but is not obligated to, take certain actions they deem appropriate.  Quanser may, in addition to all other rights and remedies provided by this Agreement or by law, immediately terminate this Agreement and any other license agreement between You and Quanser for any other portion of Your QUARC Home Software used by You if You breach this Agreement, or any Addendum or other agreement You have in effect with Quanser.

(b) Except as expressly provided herein, Quanser shall not have any liability to You arising from or related to the termination of this Agreement, or any rights or licenses granted herein, in accordance with this Agreement.

(c) Any termination under this Agreement by Quanser will be effective without Quanser obtaining any judicial or administrative consent, approval or resolution whatsoever in Your jurisdiction.

  1. Effect of Termination

Upon termination of this Agreement or the provision of the Quanser QUARC Home Software to You, however caused, or if a free trial for the Quanser QUARC Home Software expires, or the Test Period for Beta Software expires or is terminated:  (a) You will immediately discontinue all use of the Quanser QUARC Home Software, and return all copies of such. In the event of the termination of this Agreement by Quanser pursuant to provisions of this Agreement, You shall pay to Quanser all fees (including reasonable lawyers’ fees and costs) and related expenses expended or incurred by Quanser in the enforcement of its rights hereunder.  Notwithstanding the foregoing, because of the nature of the Quanser QUARC Home Software, it may be impossible to return the Quanser QUARC Home Software. In such cases, please permanently delete the Quanser QUARC Home Software from Your computing platform.

  1. Limitation of Liability

THE QUANSER QUARC HOME SOFTWARE AS WELL AS THE DOCUMENTATION IS PROVIDED TO YOU AS IS. QUANSER DISCLAIMS ALL LIABILITY AND, OTHER THAN WHAT IS EXPRESSLY SET OUT IN THIS AGREEMENT, QUANSER OFFERS NO WARRANTY OF ANY NATURE, EXPRESS OR IMPLIED, RELATING TO THE USE, PERFORMANCE OR RESULTS THAT MAY BE OBTAINED THROUGH THE USE OF THE QUANSER QUARC HOME SOFTWARE AND DOCUMENTATION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL QUANSER BE HELD LIABLE FOR ANY LOSS OR DAMAGE, DIRECT OR INDIRECT, CONSEQUENTIAL OR INCIDENTAL RESULTING FROM THE USE OF QUANSER QUARC HOME SOFTWARE, THIRD PARTY COMPONENTS, AND DOCUMENTATION, INCLUDING, WITHOUT LIMITING THE PRECEDING, THE LOSS OR ALTERATION OF DATA, LOSS OF PROFIT, INTERRUPTION OF BUSINESS AND LOSS OF EMPLOYEE WORK TIME. THIS EXCLUSION OF THE LIABILITY OF QUANSER WILL PREVAIL EVEN WHEN YOU ADVISE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.  IN ANY CASE, QUANSER’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED THE SUM OF THE FEES YOU PAID FOR THIS LICENCE (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF QUANSER TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE.

  1. Representations of Distributor

Quanser represents for Your benefit that:

  1. a) it is duly authorised by Quanser and holds all rights necessary to execute this Agreement and there are no legal, judicial or contractual limitations preventing its execution; and
  2. b) the Quanser QUARC Home Software and the Documentation are original works that, to Quanser’s knowledge, do not violate any copyright.
  3. Warranty

Quanser does not warrant that the Quanser QUARC Home Software will meet your requirements, be error free, or operate without interruptions. You acknowledge that the Quanser QUARC Home Software operates in an environment that includes software and hardware of Third Party vendors and that Quanser does not control the products of Third Party vendors.

You have ninety (90) days from the receipt of this licence to report any defect in the Quanser QUARC Home Software. In such an event, Quanser will, at no cost to You, endeavor to have programming errors corrected if possible, and deliver to You a functional version of the Quanser QUARC Home Software. This obligation exists only if You provide at all relevant times the facilities described in this Agreement.

During this warranty period, to identify and resolve any problems relating to the Quanser QUARC Home Software, refer to the Documentation for the applicable contact details for reporting such problems.

Notwithstanding the preceding, You are not entitled to the warranty if You modify elements of the Quanser QUARC Home Software without the prior written authorisation of Quanser, if You do not follow the instructions found in the Documentation, or if You breach the terms and conditions of this licence.

THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THOSE CONCERNING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

  1. Severability; Entire Agreement

If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement and any additional licenses accompanying the Quanser QUARC Home Softwareconstitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements with respect to the Quanser QUARC Home Software. Except as expressly set forth herein, any amendment of any provision of this Agreement shall be effective only if in writing and signed by authorized representatives of both parties.

  1. Governing Law

This Agreement will be governed by and construed in accordance with the laws of the province of Ontario. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. Any disagreement or dispute arising out of or relating to this Agreement, or the breach thereof, which the Parties are unable to resolve after good faith negotiations, shall be submitted first to the upper management level of Quanser and You. You and the upper management of Quanser shall meet within thirty (30) days of the dispute being referred to them and if the Parties are unable to resolve such disagreement or dispute within thirty (30) days of meeting, except to the extent specifically prohibited by applicable law in Your jurisdiction, such disagreement or dispute shall be settled by final and binding arbitration to be conducted in Ontario, Canada in accordance with the Commercial Rules of the American Arbitration Association (“Rules”) and shall be heard by one arbitrator appointed in accordance with the said Rules and to be mutually agreed to by the Parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. If the provisions of the foregoing are prohibited by law in Your jurisdiction, the arbitration shall be:  (i) held in Your jurisdiction; (ii) settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC Rules”); and (iii) heard by one arbitrator appointed in accordance with the ICC Rules and to be mutually agreed to by the Parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. Each Party shall bear one half of the costs associated with the arbitration proceedings.  No dispute between the Parties, or involving any person but You, may be joined or combined together, without the prior written consent of Quanser.  Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  Notwithstanding the foregoing, Quanser has the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of law for claims or disputes regarding:  (i) amounts owed by You to Quanser in connection with Your acquisition of Your Quanser QUARC Home Software; and (ii) Your violation or threatened violation of the Sections of this Agreement entitled “Grant of License” (Section 2), “Ownership and Limits to Use” (Section 3), “Rules of Use for Your Quanser QUARC Home Software” (Section 4), “Confidentiality and No Reverse Engineering” (Section 5), “Effect of Termination” (Section 9), and “Export Controls” (Section 15).  You irrevocably waive any objection on the grounds of venue, forum non conveniens or any similar grounds and irrevocably consent to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the City of Toronto, Ontario for any such claims arising from or related to this Agreement. The Parties specifically agree that, in the event that there is a dispute under this Agreement and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial. The Parties hereby waive all rights to a trial by jury in any matter related to or arising from this Agreement.  If You are any agency of the government of the United States of America, then Your rights in respect of the Quanser QUARC Home Software  shall not exceed the rights provided under this Agreement, unless expressly agreed upon by Quanser in a written agreement between You and Quanser and signed by the Chief Executive Officer of Quanser.

  1. Export Controls

You agree that You will not export or re-export any of the Quanser QUARC Home Software or Confidential Information received from Quanser except in compliance with the applicable laws and regulations of the relevant government authorities.  You also agree that You will not use the Quanser QUARC Home Software for any purposes prohibited by applicable law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You represent that to the best of Your knowledge, You are eligible to receive the Quanser QUARC Home Software under applicable law. You certify that You will not transfer or export any product, process or service that is a direct product of the Quanser QUARC Home Software.

  1. No Waiver or Assignment

No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of Quanser, and no single waiver will constitute a continuing or subsequent waiver. This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns. You may not assign this Agreement or the rights and obligations herein without the prior written consent of Quanser. Quanser may assign this Agreement to an affiliate or purchaser of the business or assets associated with the Quanser QUARC Home Software.

  1. Language

The parties confirm hereby that they each require that this Agreement and all documents and notices in connection therewith be drawn up in English.

YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

Effective Date: July 1, 2020

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