SSIMWAVE INC.
GENERAL TERMS AND CONDITIONS

SSIMWAVE Inc. (“SSIMWAVE”) develops, markets and owns certain video quality measurement, monitoring and optimization Software and Documentation (the “Product”) for license and use by customers in the media and entertainment industry. These terms and conditions (the “Terms”) form an agreement in connection with the use of the Product (as further defined below), between SSIMWAVE and you and/or your organization or corporation (the “Customer”).

BY ACCEPTING THE TERMS, EITHER BY: A) SIGNING OR OTHERWISE ENTERING INTO AN END USER LICENSE AGREEMENT (“EULA”), ORDER FORM, PURCHASE ORDER OR OTHER DOCUMENT RELATED TO THE PRODUCT, OR B) USING, INSTALLING, ACCESSING OR ACTIVATING THE PRODUCT AFTER BEING MADE AWARE OF THESE TERMS, THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT, AND AGREES TO  COMPLY WITH AND BE BOUND BY THESE TERMS, TOGETHER WITH A EULA OR ANY ORDER FORM, PURCHASE ORDER OR OTHER DOCUMENT RELATED TO THE PRODUCT, INCLUDING SSIMWAVE’S PRIVACY POLICY LOCATED AT  https://www.ssimwave.com/privacy-policy/, ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE AGREEMENT ENTERED INTO BETWEEN SSIMWAVE AND THE CUSTOMER, WHICH TOGETHER SUPERSEDE ALL PRIOR OR OTHER AGREEMENTS BETWEEN THE PARTIES ON THE SUBJECT MATTER HEREIN. IF, AFTER READING THE TERMS, THE CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE CUSTOMER SHALL NOT USE, INSTALL, ACCESS OR ACTIVATE THE PRODUCT IN ANY WAY.  THE CUSTOMER MAY NOT ENTER INTO THE TERMS AND/OR ACCESS THE PRODUCT IF IT IS A COMPETITOR OF SSIMWAVE OR ANY OF ITS AFFILIATES.

  1. DEFINITIONS
    “Agents” includes but is not limited to employees, agents, consultants, contractors, representatives, directors, officers, shareholders, suppliers or affiliates.
    “Confidential Information” means all data and information of a confidential and proprietary nature of (whether written, electronic or oral form), relating to the business of a party or its affiliates in any way whatsoever and including without limitation (a) any and all technical, scientific, trade secret or business information, including but not limited to financial information, marketing plans or strategies, experience and know-how, product information and data, product development and customer and supplier information, (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that results from or is prepared by or for a party that contains, reflects, interprets or is based directly or indirectly upon such information, and (c) all Intellectual Property; which Confidential Information is marked or otherwise designated as “Confidential” (or equivalent notice), or which by virtue of its nature or the circumstances would reasonably be considered to be confidential, as well as all information received by the Customer from third parties that the Customer is obligated to treat as confidential.
    “Documentation” means any on-line user guides, documentation, and help and training materials with respect to the Product provided by SSIMWAVE, as may be amended from time to time.
    “Fees” includes all amounts owing by the Customer to SSIMWAVE, including without limitation, License Fees and service fees as may be provided in an Order Form or other document.
    “Intellectual Property” means any and all intellectual property owned by SSIMWAVE in the Product, and all modifications, enhancements, corrections, upgrades and additions thereto, including, without limitation, all technical information, technical data, inventions, products, data, algorithms, design, methods, know‑how, processes, copyrights, patents, trade secrets, trademarks, software (including object code and source code), models, patterns, drawings, specifications, prototypes, discoveries, techniques systems, works of authorship, ideas, and concepts, and all intellectual property rights therein (whether or not patentable or registerable under copyright, trade‑mark, trade secret or similar legislation or subject to analogous protection).
    “Order Form” means an ordering document or on-line purchase order issued pursuant to a quotation provided by SSIMWAVE specifying the Product to be provided to the Customer, which includes any addenda and supplements thereto, into which these Terms are deemed incorporated.
    “Software” means the software which provides video quality measurement and monitoring functions, analytics and optimization services, together with all modifications, enhancements, corrections, upgrades and additions thereto from time to time.
    “Taxes” includes but is not limited to all sales, use, excise, withholding, value added, or other taxes or duties, and any applicable export or import duties.
  2. LICENSE AND USE OF PRODUCT
    1. Grant of License. SSIMWAVE grants to the Customer, solely for internal use by the Customer, a limited, non-transferable, revocable, non-sublicensable, non-exclusive right and license to access and use the Product (the “License”) during the Term, made available to Customer pursuant to an Order Form, subject to the limitations, restrictions and requirements specified herein.
    2. Changes to License. SSIMWAVE reserves the right to modify the Terms of the License without notice at any time. The Customer is responsible for reviewing the Terms regularly to remain updated as to any changes, for by accepting these Terms, the Customer is agreeing to be bound by any amended Terms at any time in the future. To the extent that such changes are reflected in any modification to the License published with any upgrade or update to the Product, the Customer will be deemed to have accepted the modified terms at the time of acceptance and use of such update or upgrade to the Product.
    3. Prohibitions on Use. The Customer will not, and will not permit its Agents or users, directly or indirectly, at any time to do any of the following (without limitation):
      1. disrupt or interfere with the security of other parties’ access to, or otherwise abuse, publish or adapt, the Product;
      2. replicate, copy or transmit, in any form or by any means, electronic, mechanical, recording, or otherwise the Product, including onto any public or distributed network;
      3. reverse-engineer, de-compile, disassemble or in any manner deconstruct, or otherwise misappropriate or attempt to discover the source code, object code or underlying structure, ideas or algorithms of, all or any part of the Software;
      4. modify, translate, adapt, change, customize, enhance, augment, partially delete or alter or otherwise modify, or create derivative works based on any part of the Product in any manner whatsoever;
      5. rent, lease, distribute, disclose, license, sublicense, sell, resell, assign, transfer or otherwise commercially exploit the Product, or permit any person to access, use, read, disseminate, transmit, “download” or reproduce the Product;
      6. access or use data generated by the Product for any purpose other than those contemplated hereby;
      7. upload, post, publish or otherwise transmit through the Software any viruses, Trojan horses, bugs or other harmful, disruptive or destructive files;
      8. upload or transmit any material that acts as a passive or active information collection or transmission mechanism;
      9. alter or remove any proprietary notices appearing in the Product;
      10. violate any local, state, provincial, federal or foreign law, treaty, regulation or convention applicable to Customer in connection with the use of the Product, or use the Product to do anything unlawful, misleading, malicious, or discriminatory;
      11. access or use information provided by the Product to build, support, assist or encourage services competitive to SSIMWAVE, or harvest, collect or store information or any content obtained through the Software for any purpose; or
      12. use the Product for infringing, illegal, libelous, pornographic, illicit, deceptive, harmful or discriminatory purpose based on race, sex, religion, nationality, disability, sexual orientation or age or other such legally prohibited ground, or that is otherwise objectionable.
    4. General Support and Maintenance. SSIMWAVE shall support the Product throughout the Term, as outlined in, and in accordance with, the Service Level Objectives (“SLO”) provided by SSIMWAVE. Customer acknowledges that the support will not be available during system maintenance periods, or such times as SSIMWAVE may require for purposes of upgrades and maintenance to the Software, and SSIMWAVE will make reasonable efforts to announce the scheduled downtime via e-mail to Customer’s designated e-mail address. Support does not include services required as a result of (i) Customer misuse, improper use or alteration of Product; (ii) any problem caused by modifications in any version of the Product not made or authorized by SSIMWAVE; or (iii) any problem resulting from Customer combining or merging the Software with any product not supplied by SSIMWAVE, or not identified by SSIMWAVE as compatible with the Product.
    5. Extended Support, Customization and Other Services. If Customer wishes to have SSIMWAVE provide additional custom development and/or support and or other services (collectively, “Additional Services”), the Parties will negotiate the terms and conditions of the Additional Services which shall be incorporated into a separate agreement, including a description of the Additional Services, milestones for delivery, payment amounts due, and other mutually agreed terms and condit SSIMWAVE shall in all cases own any and all Intellectual Property developed as a result of the Additional Services.
  3. FEES AND PAYMENT
    1. Fees. The Product is provided to the Customer with fees payable as invoiced by SSIMWAVE (“Fees”), exclusive of all applicable taxes, as outlined in an Order Form.  SSIMWAVE reserves the right to modify the Fees on thirty (30) days’ prior notice to the Customer for any Renewal Term.
    2. Payment. All amounts owing by the Customer for the Product will be due within 30 days of the date of the invoice, unless otherwise directed by SSIMWAVE and for such amounts as indicated in the relevant Order Form. All Fees are quoted in United States dollars and are non-cancelable and non-refundable. Any payment not received from the Customer by the due date shall accrue interest at the lower of 1.5% of the outstanding balance per month (being 18% per annum), or the maximum rate permitted by law, whichever is less, from the date such payment is due until the date paid in full, with interest calculated and payable monthly in arrears based on the amount outstanding as of the last business day of such month. The Customer shall also pay all sums expended (including reasonable legal, collection and recovery fees and expenses) in collecting overdue payment.
    3. Taxes. All amounts payable by the Customer hereunder with respect to the Product, including all Fees, are exclusive of any applicable Taxes, and the Customer shall be solely responsible for the payment thereof, without deduction, as invoiced by SSIMWAVE. The Customer shall indemnify and hold harmless SSIMWAVE from any Taxes due and payable hereunder.
    4. Default in Payment. In addition to its termination rights provided herein, if the Customer defaults in payment of any amounts owing to SSIMWAVE, SSIMWAVE shall have the right to suspend the License and Customer’s access to the Software until such amounts are paid in full, and SSIMWAVE shall not be liable to Customer or to any other person as a result of any suspension or termination of access. In addition, the Customer shall be responsible to pay for all costs of collection and other expenses resulting from the default and suspension of the License.
  4. TERM AND TERMINATION
    1. Term. These Terms will be effective during the period set forth in the Order Form (the “Term”), which shall automatically renew on expiration for subsequent periods of one (1) year (each, a “Renewal Term”) unless terminated by either party as outlined below, and during each Renewal Term, Fees shall be deemed to be SSIMWAVE ’s then-current Fees.
    2. Events of Termination. The License and this Agreement may be terminated as follows:
      1. by either party on written notice at least sixty (60) days prior to the expiration of the Term or Renewal Term as the case may be;
      2. by SSIMWAVE if the Customer fails to make payment of any Fees or any amount due to SSIMWAVE;
      3. by SSIMWAVE if the Customer breaches any of the obligations or provisions of these Terms or any Order Form, and fails to remedy such breach within ten (10) days of written notice from SSIMWAVE of such default;
      4. by SSIMWAVE immediately on written notice to the Customer if the Customer breaches or threatens to breach any provisions of the Terms relating to SSIMWAVE’s Intellectual Property and/or Confidential Information;
      5. by SSIMWAVE if the Customer becomes insolvent, makes any assignment for the benefit of creditors, goes to liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or seeks the protection of, or has a proceeding instituted against it, under the bankruptcy code or any similar statute;
      6. immediately and automatically if it is determined that SSIMWAVE would be prohibited from doing business with the Customer under any applicable law, including any export regulations and controls.
    3. Effects of Termination. Upon termination, the Customer agrees that:
      1. it will immediately cease all use of the Product and any other materials within the Customer’s possession or control, and shall within ten (10) business days of the effective date of termination, return to SSIMWAVE, or at the direction of SSIMWAVE destroy, all Confidential Information, and provide an officer’s certificate attesting to the return or destruction of all such material to the reasonable satisfaction of SSIMWAVE, acting reasonably;
      2. it will pay in full for all Fees related to the Product, which shall continue to accrue and be owing until the expiration date of the Term or Renewal Term, as the case may be;
      3. it shall release SSIMWAVE from any further obligation or responsibility to the Customer and will have no rights or claims against SSIMWAVE in connection with termination, expiration or non-renewal of any License or agreement, and acknowledges that nothing herein contained shall be construed to limit or restrict in any way SSIMWAVE’s ability to pursue any remedies it may have at law or equity;
      4. provisions regarding ownership, intellectual property, confidentiality, warranty and indemnity, and all other provisions which expressly or by their nature are intended to survive termination, shall survive termination of these Terms.
  5. PROPRIETARY RIGHTS
    1. Ownership. The Customer acknowledges and agrees that the Product and all Intellectual Property and all rights therein and thereto are solely owned and/or licensed by SSIMWAVE, and neither the Customer nor its Agents shall acquire any right, title or interest in, to or under the Intellectual Property or any part thereof in the Product, except such limited rights granted by the License hereunder. In the event that the Customer or Agents acquire any such right, title or interest in, to or under any of the Intellectual Property of SSIMWAVE, it hereby transfers and assigns and/or causes its Agents to assign in perpetuity and without further compensation, all of such right, title and interest to SSIMWAVE, and hereby waives all moral rights with respect thereto, and shall in all cases execute such documents and do all such things as may be reasonably requested from time to time to give effect to the foregoing. The Customer shall promptly notify SSIMWAVE of: (i) any claims, allegations, or notifications that the Product may or will infringe the Intellectual Property rights of any other person or entity, and (ii) any determination, discovery, or notification that any person or entity is or may be infringing the Intellectual Property rights of SSIMWAVE. The Customer acknowledges and agrees that any goodwill created by the Customer with respect to the Product is the sole property of SSIMWAVE, and shall indemnify and save harmless SSIMWAVE with respect to any third party claim that the Customer’s actions with respect to the Product have infringed any third party’s intellectual property rights. All of SSIMWAVE’s Intellectual Property shall be deemed to be Confidential Information, and the Customer shall be bound by all confidentiality provisions with respect thereto.
    2. Trademarks and Logos. SSIMWAVE and the SSIMWAVE logo, trademarks and all other proprietary marks (“Trademarks”) are the sole property of SSIMWAVE , and the Customer shall not reproduce, use, modify or distribute Trademarks without the prior written permission of SSIMWAVE , nor contest or challenge ownership of the Trademarks, or take any action to acquire any right therein. The Customer shall promptly notify SSIMWAVE in writing of any unauthorized use or infringement of the Trademarks promptly upon receipt of notice thereof. The Customer agrees that SSIMWAVE may use the Customer’s name and logo to identify the Customer as a customer of SSIMWAVE’s on SSIMWAVE’s website, and as a part of a general list of SSIMWAVE’s customers for use and reference in SSIMWAVE’s corporate, promotional and marketing literature. Additionally, Customer agrees that SSIMWAVE may issue a press release identifying Customer as a SSIMWAVE customer and describing Customer’s utilization and the benefits that Customer receives from use of the Product.
    3. Customer License. “Customer Data” shall include any and all data, information or materials supplied or disclosed by the Customer in connection with the Software and services provided by SSIMWAVE. The Customer retains all right, title and interest in and to all Customer Data, and hereby grants to SSIMWAVE a non-exclusive, royalty-free, worldwide, transferable and sub-licensable right and license to use, copy and modify Customer Data for purposes of providing or supporting the Software and services. In addition, Customer hereby grants to SSIMWAVE a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, transferable and sub-licensable right and license to collect, organize, aggregate, repurpose, combine and derive aggregated and anonymous Customer Data provided to or accessed by SSIMWAVE as a result of the Customer’s use of the Software for purposes of Quality Assessment Data (described below).  The Customer may provide SSIMWAVE access (on-site or via remote access) to Customer systems (“Customer Systems”), including for the purpose of requesting that SSIMWAVE  either assist Customer in, or directly perform, any use or application of the Software for the Customer. SSIMWAVE will use reasonable commercial efforts to safeguard and use Customer Data in accordance with its privacy policy, but in no event will SSIMWAVE be liable for any loss of Customer Data or other information, or any claim arising out of SSIMWAVE’s access to and use of any Customer Systems as provided herein, unless caused by the gross negligence of SSIMWAVE.
    4. Quality Assessment Data. As a result of the use of the Product by the Customer as provided hereunder, SSIMWAVE will generate certain information, data, statistics, analyses, reports and other files or documentation relating to the use, performance and features of the Software, which may include and incorporate anonymized, aggregated Customer Data provided to SSIMWAVE combined with data from other sources (collectively, the “Quality Assessment Data”). Customer acknowledges and agrees that SSIMWAVE has the right to collect and derive anonymized, aggregated Quality Assessment Data, and any and all right, title and interest in and to the Quality Assessment Data and all Intellectual Property therein, shall be exclusively owned by SSIMWAVE, for use by SSIMWAVE as it may in its sole discretion determine.
    5. Feedback. During or after the Term, the Customer may voluntarily provide suggestions, comments or other feedback (“Feedback”) relating to the Product which SSIMWAVE  shall be free to use, disclose, reproduce, license or otherwise distribute and exploit in any manner as it may determine from time to time in its sole discretion, and all right, title and interest in and to the Feedback shall be exclusively owned by SSIMWAVE.
  6. CONFIDENTIAL INFORMATION
    1. Confidentiality Obligations. Each party shall be permitted to use the Confidential Information of the other party solely for purposes of the agreement between the parties as provided herein. Each party shall hold in confidence the Confidential Information of the other party, protecting such Confidential Information with the same degree of care that it uses to protect its own Confidential Information, but in no case with less than reasonable care and ensure that such Confidential Information is not disclosed, published, released, transferred or otherwise made available in any form to, for the use or benefit of, any other person except as provided hereunder, without the disclosing party’s prior written approval; provided, however, that the either party may disclose the same to its Agents who require the Confidential Information for the purposes hereunder, provided they are bound in writing to confidentiality provisions as provided herein. Each party shall be fully responsible for ensuring that any persons to whom it discloses Confidential Information comply with the confidentiality obligations contained herein, and shall be liable for any breach of  these Terms by such persons. Each party acknowledges and agrees that the Confidential Information of the other is the sole and exclusive and valuable property of the other party, and neither party shall acquire any right or license of any kind in any Confidential Information of the other, except the limited right to review such Confidential Information for purposes of the License. The parties agree that disclosure of the other’s Confidential Information would be detrimental to the interests and  business of the other party, and that it shall notify the other immediately upon discovery of any unauthorized use or disclosure of any Confidential Information, and cooperate in every reasonable way to help regain possession of such Confidential Information and to prevent its further unauthorized use or disclosure. The Customer confirms and agrees that no representation or warranty, express or implied, is being made by SSIMWAVE as to the accuracy or completeness of any Confidential Information supplied, and SSIMWAVE shall not have any liability to the Customer relating to the use of any Confidential Information or any inaccuracies, errors or omissions. The Confidential Information of a disclosing party shall be returned or destroyed by a receiving party immediately upon the request of the disclosing party for any reason and at any time.
    2. Exclusions. These restrictions shall not apply to the disclosure of Confidential Information which:
      1. is now or hereafter becomes generally known or available to the public without breach of the Terms by the receiving party;
      2. is known to the receiving party at the time of disclosure without breach of the terms hereof, as demonstrated by satisfactory evidence;
      3. is lawfully furnished to the receiving party by a third party without restriction or breach;
      4. is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information;
      5. is approved for use or disclosure by written authorization of the disclosing party; or
      6. is required to be disclosed by law or valid order of a court or other governmental authority, provided that the receiving party shall first have given prompt notice to the disclosing party of such request, the disclosing party has a reasonable time to attempt to limit or prevent such disclosure, and receiving party makes any required disclosures in consultation with the disclosing party and only discloses that portion of the Confidential Information which is legally required.
    3. Irreparable Harm. Each of the parties acknowledges that any unauthorized disclosure and use of Confidential Information will cause irreparable harm to the Disclosing Party for which damages may not be an adequate remedy. In the event of unauthorized disclosure and use of its Confidential Information, the parties shall cooperate in every reasonable way to help regain possession of such Confidential Information and to prevent its further unauthorized use or disclosure, and such party shall, in addition to any other rights or remedies it may have in law or equity hereunder be entitled to injunctive relief, which shall be in addition to all other available legal or equitable remedies. Each party agrees that the provisions of this section are fair and reasonable in the commercial circumstances of this Agreement.
    4. Survival. The obligations of confidentiality shall remain in effect throughout the Term and for a minimum period of five (5) years following the expiration or earlier termination, or such longer period until the relevant Confidential Information is no longer considered Confidential Information.
  7. LIMITATIONS AND INDEMNITIES
    1. Limited Warranty. SSIMWAVE warrants that it owns or licenses the Product, and that to the best of its knowledge, the Customer’s use of the Product will not infringe the Intellectual Property rights of any third party. SSIMWAVE warrants that the Product will operate in substantial conformity with the Documentation.  THE CUSTOMER CONFIRMS THAT IT HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY, CONDITION, COVENANT OR PROMISE MADE BY SSIMWAVE WHICH HAS NOT BEEN EXPRESSLY STATED IN THIS AGREEMENT, and acknowledges and agrees that it uses the Product, and relies on content contained in or resulting from the Product, at the Customer’s sole discretion and risk, that the nature and use of the Product requires the exercise by the Customer of subjective judgments as to accuracy, materiality, relevance and other factors of the data produced, and it is the responsibility of Customer to review, check and confirm results. The Customer acknowledges that the entire risk arising out the use or performance of the Product, and any services or assistance provided by SSIMWAVE in connection therewith, remains with the Customer, and it will be solely responsible for any damage to its business, systems or loss of data that may result from the use of the Product.
    2. Acknowledgement regarding Internet. The Customer acknowledges and accepts that, despite the internet being accepted as a secure environment, there may be interruptions in service or events, and access to the Software may be interrupted, suspended or terminated from time to time, due to circumstances both within and beyond the control of SSIMWAVE. Despite SSIMWAVE’s reasonable commercial efforts to keep the Software accessible at all times, the Software may be unavailable from time to time for any reason, and the Customer acknowledges and agrees that SSIMWAVE shall not be responsible at any time for any claims, data lost or damages incurred while transmitting information on the internet with respect to the Software. While SSIMWAVE shall take reasonable precautions to ensure security of the Software, Customer acknowledges that the internet provides the opportunity for unauthorized third parties to gain access to the Software. Accordingly, SSIMWAVE cannot and does not guarantee the privacy or security of any customer information transferred over or stored in any system connected to the internet, and SSIMWAVE disclaims any warranty or representation that confidentiality of information transmitted through the provision of the Software can or will be maintained. The Customer acknowledges that SSIMWAVE shall not be liable for any access to or usage by third parties of any information used in connection with the Software, and SSIMWAVE’s sole and exclusive liability shall be for SSIMWAVE to correct any reported problem in the Software directly attributable to its own support failure.
    3. Limitation of Liability. Except for the specific limited warranties provided herein and to the fullest extent allowed by applicable law, the Product is provided to the Customer on an “as is” basis, and SSIMWAVE hereby disclaims all warranties or conditions of every nature whatsoever (whether implied or arising by statute or otherwise in law, or from a course of dealing or usage of trade) with respect to the Product, and provides no representation as to accuracy, availability or usability, including without limitation, any implied warranties of merchantability or of fitness for a particular purpose, or that the functions contained in the Software will meet the Customer’s requirements, or that the operation of the Software will be uninterrupted, timely, secure or error free, or that the Software will operate precisely as described or that all errors will be corrected, or are free from infection by viruses, bugs or other defects that can impact on the Software. SSIMWAVE AND ITS AGENTS SHALL IN NO EVENT BE LIABLE FOR ANY LOSS, INJURY, CAUSE OF ACTION  LIABILITY OR DAMAGE OF ANY KIND OR NATURE WHATSOEVER (INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE), INCLUDING WITHOUT LIMITATION ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LEGAL FEES), (INCLUDING WITH RESPECT TO LOSS OR DAMAGE TO CUSTOMER OR OTHER DATA, LOSS OF BUSINESS PROFITS OR REVENUE OR BUSINESS INTERRUPTION) SUFFERED BY THE CUSTOMER OR ANY THIRD PARTY HOWSOEVER CAUSED,  (WHETHER RESULTING FROM ANY FAILURE OF SOFTWARE, COMPUTER, SUPPORT OR SECURITY, THE USE OF OR INABILITY TO USE THE PRODUCT OR ANY OTHER CAUSE), AND REGARDLESS AND REGARDLESS OF THE FORM OR CAUSE OF ACTION OR BASIS OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE), EVEN IF SUCH DAMAGES ARE FORESEEABLE OR SSIMWAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  The Customer agrees that the Customer’s exclusive recovery for any damages that the Customer may incur shall be limited to the direct damages the Customer actually incurs up to the maximum aggregate amount of Fees that SSIMWAVE received from the Customer during the six (6) month period immediately preceding the date on which the event giving rise to the cause of action is alleged to have occurred, irrespective of the nature of the claim. Some jurisdictions do not allow the limitation or exclusion of certain warranties or conditions, so some of the above exclusions may not apply to the Customer. No action against either party or any of its Agents, regardless of form (including negligence), arising out of or in any way related to hereto may be brought by the other party more than one year after the cause of action has arisen.
    4. Indemnification by Customer. The Customer agrees to indemnify and hold SSIMWAVE, its affiliates, and their respective Agents harmless from and against any and all liabilities, claims, demands, actions, damages, loss, cost or expense, including reasonable legal fees (“Claim”), arising directly or indirectly out of any claim, suit action or judgment (commenced or threatened) bought against SSIMWAVE with respect to a breach of the provisions of these Terms or any other agreement of the parties with respect to the Product by the Customer or its Agents, the use of the Product by the Customer, any violation by the Customer of any provincial, state, federal or other laws and regulations, or any third party rights,  or arising as a result of any third party alleging that the use of the Product by the Customer or its Agents, other than in accordance with these Terms, infringes, misappropriates or violates any Intellectual Property of the third party, which indemnity shall survive any termination or expiration of this Agreement.
    5. Indemnification by SSIMWAVE. SSIMWAVE shall indemnify and hold harmless Customer from and against third party Claims brought against the Customer that the Product provided by SSIMWAVE under this Agreement and used in accordance with the provisions of this Agreement infringes third party intellectual property rights if notified promptly in writing of the claim and given full authority, information and assistance for the defense, and may, at its sole option and expense:
      1. procure for Customer the right to continue using the affected Product;
      2. replace the same with a product of similar functions and efficiency that is not subject to such an action; or
      3. modify the Product so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities as provided in the Documentation;

      provided however that SSIMWAVE shall have no liability respecting any claim of infringement or breach to the extent such claim is based upon the combination, operation or use by the Customer of the Product with other equipment, software, apparatus, devices or things not supplied by SSIMWAVE or in a manner not substantially consistent with SSIMWAVE specifications and Documentation. This section states the entire liability of SSIMWAVE for any type of infringement or breach whatsoever of intellectual property rights of third parties resulting from or relating to the provision by SSIMWAVE of the Product.

    6. Mutual Indemnity Provisions. Each party’s indemnity obligations hereunder are subject to the following:
      1. the aggrieved party shall promptly notify the indemnifier in writing of the claim;
      2. the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the claim; and
      3. the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such claim.
  8. GENERAL TERMS AND CONDITIONS
    1. Non-Solicitation/Non-Interference. The Customer is prohibited from soliciting or hiring any employees, independent contractors or agents of SSIMWAVE (either directly or indirectly), without written permission of SSIMWAVE, at any time during the any Agreement, and for a period of two (2) years following its termination. The Customer shall not at any time interfere or attempt to interfere with the business of SSIMWAVE, or persuade or attempt to persuade any customer or prospective customer of SSIMWAVE to discontinue or alter its relationship with SSIMWAVE.
    2. Relationship of Parties. The parties shall at all times be independent contractors, and nothing in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties. Neither party nor any of its Agents is or shall represent that it is an agent, partner, employee, joint venture or representative of the other, nor is authorized to accept any obligation or incur any liability on behalf of the other except as expressly otherwise permitted.
    3. Dispute Resolution. In the event of a dispute of the Terms, the parties will use good faith efforts to settle such dispute within thirty days of notice of the dispute being delivered, failing which the dispute shall be finally settled by arbitration in accordance with the Arbitration Act (Ontario). The arbitration award shall be final and binding upon the parties and judgment thereon may be entered in any court having competent jurisdiction. The costs of the arbitrator shall be borne by the unsuccessful party to the arbitration.
    4. Force Majeure. Neither party hereto shall be liable to the other for delay in any performance or for the failure to render any performance of obligations when such delay or failure is a direct result of any present or future statute, law, ordinance, regulation, order, failure to deliver on the part of its suppliers, judgment or decree, act of God, earthquake, epidemic or pandemic, explosion, lockout, boycott, strike, labor unrest, riot, war, or similar catastrophic occurrence. Notwithstanding the foregoing, these provisions shall not be applicable to any obligation involving the payment of money by the Customer.
    5. Notices. Any notice given by one party to the other shall be in writing and sufficiently given if (a) personally delivered or couriered, (b) mailed by regular mail, or (c) sent by electronic transmission, and shall be deemed to be received by the recipient on the fifth business day after mailing, if sent by mail, and on the day of delivery if delivered or sent by electronic transmission. Such notices shall be sent to the parties at the address provided in the relevant Order Form.
    6. Governing Law. The Terms and any Order Form or other document entered into between the parties shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without reference to conflicts of law principles. The Customer irrevocably attorns to the exclusive jurisdiction of the courts of Ontario with respect to any dispute or legal proceeding which may arise out of, under, or in connection with these Terms. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Either party must initiate a cause of action for any claim(s) arising out of or relating hereto and its subject matter within one (1) year from the date when such party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
    7. Export Control. The Terms and any agreement between the parties are subject to any governmental laws, orders or other restrictions on the export of software programs and related information and documentation that may be imposed by governmental authorities. The Customer shall comply with any governmental laws, order or other restrictions related to export and re‑export (including technical data and any related information and documentation) which may be imposed from time to time by the government of Canada and any other applicable country.
    8. Assignment. The Customer may not assign, sublicense or otherwise transfer any of its rights or obligations, or any right to access and use the Product, in whole or in part, including without limitation by operation of law, without SSIMWAVE’s prior written consent. Any attempt to assign without such consent will be null and void, and the Customer agrees to notify SSIMWAVE immediately of any change of control. SSIMWAVE may assign this Agreement and subcontract or delegate its obligations hereunder to any third party without the consent of, but on notice to, the Customer. Subject to the foregoing, the Agreement and the terms and conditions will bind and inure to the benefit of each party’s permitted successors and assigns.
    9. Severability. If any provision of the Terms is found to be invalid, illegal or unenforceable, such portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, or may be severed therefrom, and the remainder of the provisions shall remain in full force and effect. The invalidity of that provision will not affect the validity of the remaining provisions, all of which shall remain in full force and effect.
    10. Waiver. Any waiver of any provisions must be in writing. Failure by either party to insist upon or enforce strict performance of any provision, or failure to exercise any right or remedy under the Terms does not constitute a waiver of that right or remedy.
    11. Entire Agreement.  These Terms, including all exhibits and schedules and any other documents incorporated by reference from time to time, together with any Order Form or other written agreement executed between the parties from time to time, collectively constitute the entire agreement and understanding between SSIMWAVE and the Customer with respect to the relevant subject matter, and supersedes any and all prior written or verbal agreements, proposals or representations. In the event of an inconsistency between the Terms, an Order Form the Documentation or any other agreement between the parties with respect to the subject matter hereof, the Order Form shall take govern, and any other executed agreement shall take precedence over  the Terms, and the Documentation, to the extent necessary to remedy such inconsistency. Headings in these Terms are for convenience only and will have no legal meaning or effect.
    12. Amendment. No modification, amendment, or waiver of any provision of the Terms or any Order Form will be effective unless in writing and signed by authorized representatives of both parties, and neither the course of conduct between SSIMWAVE and the Customer, nor any trade practice, shall act to modify any provision thereof.
    13. Customer Confirmation. The Customer acknowledges that it has carefully read and understood the Terms, and has been advised to obtain independent legal advice before accepting these Terms and using the Product, and has either done so, or chosen not to do so.