This Service License Agreement (“Agreement”) is entered into between Smart City Water Inc. (“LICENSOR”) and the license-holding organization/entity (“LICENSEE”) for the use of the VO SWMM software program (the “Software”).
1. Grant of License: The LICENSOR grants the LICENSEE a non-exclusive, non-transferable license to use the Software in accordance with the terms and conditions outlined in this Agreement and the Terms and Conditions Agreement.
2. Scope of Use: The LICENSEE is authorized to use the Software solely for internal business purposes. The LICENSEE shall not sublicense, sell, or distribute the Software or any part of it without prior written consent from the LICENSOR.
3. Restrictions: The LICENSEE shall not modify, reverse-engineer, decompile, or disassemble the Software in any way. Any attempt to do so will result in the immediate termination of this Agreement, including the removal of access to the Software without refund. The LICENSEE shall also be liable for all damages incurred as a result of such actions, including but not limited to damages for lost profits, copyright infringement, and trade secret misappropriation. The LICENSOR may also pursue any other remedies available at law or in equity. These outlined restrictions will remain in effect beyond the term of the Agreement.
4. Ownership: The LICENSOR retains all rights, title, and interest in and to the Software, including all intellectual property rights. This Agreement does not grant the LICENSEE any rights to patents, copyrights, trademarks, or trade secrets related to the Software.
5. Support and Maintenance: The LICENSOR shall provide reasonable support and maintenance services for the Software during the term of this Agreement. The LICENSOR shall develop and intermittently release software updates and bug fixes during and/or adjacent to the Agreement period.
6. Fees: The LICENSEE shall pay the applicable fees for the use of the Software as specified in the pricing plan shared by the LICENSOR. Failure to pay the fees may result in the suspension or termination of the LICENSEE’s access to the Software. The LICENSOR reserves the right from time to time to revise the Software prices and terms (including renewal fees). The LICENSEE must pay the purchase fee and annual renewal fees in full prior to license access and/or receiving the license period extension. Late renewals will be subject to additional late fees or the removal of discounts previously provided.
7. Annual Subscription Renewal: Before the annual license period expiry date, the LICENSEE agrees to pay an annual renewal fee for continued use of the license subscription (including Software maintenance and support) in the amount of the LICENSOR’s price. This license subscription renewal charge is to be paid annually and is subject to change at the LICENSOR’s discretion. The LICENSEE must inform the LICENSOR directly if they wish to cancel their subscription 30 Days before the license renewal date. If the LICENSEE fails to renew prior to the license period expiration date and later elects to renew the subscription, the LICENSOR reserves the right to charge the LICENSEE its fees for the period(s) of the lapsed time. If renewals are not paid by the license period expiry date, SCW reserves the right to restrict access to the VO software. After 2 weeks of non-payment past the license period date, SCW reserves the right to increase the subscription renewal from a 50% discount to a 40% discount. After one month of non-payment, SCW reserves the right to cancel the subscription. License subscriptions are automatically renewed annually.
8. Software Performance: The LICENSOR shall use commercially reasonable efforts to ensure that the Software is available for use by the LICENSEE, excluding scheduled downtime for maintenance or upgrades. Scheduled downtime shall be communicated to the LICENSEE in advance whenever possible. The LICENSEE acknowledges that the Software may be unavailable from time to time due to circumstances beyond the LICENSOR’s control, such as force majeure events or third-party service disruptions.
9. Data Privacy and Security: The LICENSOR shall take reasonable measures to ensure the security and privacy of the LICENSEE’s data. However, the LICENSEE acknowledges that the LICENSOR cannot guarantee complete security of data transmitted over the internet or stored on the Software.
10. Compliance with Laws: The LICENSEE agrees to comply with all applicable local, provincial, national, and international laws and regulations in connection with the use of the Software.
11. Term and Termination: This Agreement shall remain in effect until terminated by either party. The LICENSOR reserves the right to terminate this Agreement immediately if the LICENSEE breaches any of the terms outlined herein.
12. Limitation of Liability: The LICENSOR shall not be liable for any indirect, incidental, special, or consequential damages arising out of the use of the Software.
13. Indemnification
A) Mutual Indemnification: The LICENSEE (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the LICENSOR (the “Indemnified Party”), its affiliates, directors, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to the Indemnifying Party’s breach of this Agreement or negligence or willful misconduct in connection with the performance of its obligations under this Agreement.
B) Notice and Cooperation: The Indemnified Party shall provide the Indemnifying Party with prompt written notice of any claim or potential claim of which it becomes aware. The Indemnifying Party will have the right to assume the defense of any such claim with counsel of its choosing. The Indemnified Party agrees to cooperate with the Indemnifying Party in the defense of any such claim at the Indemnifying Party’s expense.
C) Limitation: The indemnification obligations under this clause shall not apply to damages resulting from the Indemnified Party’s own negligence or willful misconduct.
14. Dispute Resolution
A) Arbitration: Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or validity thereof, shall be settled by binding arbitration in accordance with the Arbitration Act, 1991 of Ontario. The arbitration shall be conducted in Toronto, Ontario, by a single arbitrator appointed by the parties or, failing their agreement, by the ADR Institute of Canada. The decision of the arbitrator shall be final and binding on the parties and may be enforced in any court of competent jurisdiction.
B) Recovery of Legal Fees and Equitable Relief: The prevailing party in any arbitration or legal action shall be entitled to recover its reasonable legal fees and costs from the other party. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief from a court of competent jurisdiction to prevent or restrain any actual or threatened breach of this Agreement.
15. Entire Agreement: This Agreement, along with the EULA and the Terms and Conditions Agreement, constitutes the entire agreement between the parties with respect to the use of the Software and supersedes all prior or contemporaneous understandings regarding such subject matter.
16. Acceptance: By accepting this Agreement, the LICENSEE agrees to be bound by its terms and conditions.
