MASTER LICENSE AGREEMENT
1. AGREEMENT / CONFIRMATION OF AUTHORITY
1.1 This master license agreement is by and between Daylite.ai Inc. (“Licensor”) and the entity on behalf of which you are entering into this master license agreement (“Customer”). This master license agreement, along with the License Order Forms entered into by Licensor and Customer, governs Customer’s use and Licensor’s provision of the Products.
1.2 By agreeing to these terms and conditions, you represent and warrant that you have the authority to bind the Customer to all of the terms and conditions of this master license agreement.
As used in this Agreement, the following terms shall have the meanings specified below:
“Agreement” shall mean this master license agreement and any License Order Form executed by the parties from time to time.
“Change of Control” shall mean that the securities of Customer to which are attached more than 50% of the total votes which, if exercised, are sufficient to elect a majority of the board of directors or similar positions of Customer cease to be beneficially owned or held, directly or indirectly, by the person or entity that beneficially owns or holds such securities as of the Effective Date.
"Confidential Information" shall mean all information disclosed to a party (the “Receiving Party”) by or on behalf of the other party (the “Disclosing Party”) about the Disclosing Party's business that is confidential to the Disclosing Party and which shall include all information relating to the Products and the terms and conditions of this Agreement (which information shall be deemed to be Licensor's Confidential Information) and all information which, by the nature of the circumstances surrounding the disclosure, ought to be treated as confidential.
“Customer Content” shall mean all items supplied by Customer or its authorized users for inclusion in, use in association with, or uploading to, any Product, including program, data, or other software files, documents, text, pictures, photographs, graphics, videos, animation, and sound recordings, and any associated metadata.
“Effective Date” shall mean the earlier of: (i) the date of the first License Order Form entered into hereunder; or (ii) the date on which you accept these terms and conditions.
“License Fee” shall mean, with respect to any Product, the amount set out in the applicable License Order Form for such Product.
“License Order Form” shall mean a written order specifying the key commercial terms relating to Customer’s use of one or more Products and executed by a representative of each of Customer and Licensor.
“License Term” shall mean, with respect to any Product, the period of time commencing on the applicable Start Date for such Product, and continuing for the length of time set out in the License Order Form for such Product.
“Products” shall mean the Licensor software products and services described in a License Order Form and any modified, updated or enhanced versions of such products and services that Licensor may make available pursuant to this Agreement.
“Start Date” shall mean, with respect to any Product, the date set out in the License Order Form for such Product.
“User Documentation” shall mean the user documentation furnished to Customer by or on behalf of Licensor along with the Products.
3. GRANT OF LICENSE, CHANGES
3.1 Subject to the provisions contained in this Agreement, Licensor hereby grants to Customer, and Customer hereby accepts:
3.1.1 a non-exclusive, non-assignable, worldwide, revocable license, during the applicable License Term, to:
220.127.116.11 access and use the Products for the number of concurrent users specified in the applicable License Order Form, all of whom must be personnel directly engaged by Customer, solely for Customer’s internal purposes; and
18.104.22.168 use the User Documentation provided with each Product licensed hereunder solely for the purpose of supporting Customer’s use of the Products.
3.1.2 Customer shall limit access to the Products solely to internal users and shall use the Products solely for Customer’s internal purposes. Customer shall not use the Products to process any data or files for any third party or in any service bureau arrangement.
3.1.3 Customer may not copy any Product or User Documentation. Customer shall not modify, remove or obscure in any way, any copyright or trademark notices of Licensor or its suppliers on any Product or any User Documentation.
3.2 From time to time during the term of this Agreement, Customer and Licensor may agree to amend the license terms and associated fees applicable to any Product by executing a new License Order Form for such Product. Upon full execution of such a new License Order Form, any prior License Order Form for the applicable Product shall be automatically amended without further formality as of the date set out in the new License Order Form. For clarity, any applicable License Fees shall be prorated as of the effective date of the new License Order Form.
4. RESTRICTIONS, SECURITY MEASURES
4.1 Customer may not sell, assign, lend, otherwise transfer or sublicense any Product or User Documentation or any of its rights or obligations hereunder to any third party.
4.2 Customer acknowledges and agrees that Licensor and its suppliers own all right, title and interest in the Products and User Documentation, and in all patents, trademarks, trade names, inventions, copyrights, know-how, and trade secrets or other intellectual property rights relating to the Products, User Documentation or the marketing thereof. The use by Customer of the Products is authorized only for the purposes herein set forth and upon termination of this Agreement for any reason, or expiration of the applicable License Term, such authorization shall cease. There are no implied licenses granted under this Agreement, and all rights not expressly granted to Customer in this Agreement are reserved.
4.3 Customer may not, directly or indirectly, including through any person or entity under its control or direction, in any form or manner, copy, distribute, reproduce, incorporate, use or allow access to the Products or modify or prepare derivative works of the Products or User Documentation, or decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Products. Notwithstanding the foregoing, decompiling the Products is permitted solely to the extent that the laws of the jurisdiction applicable to Customer’s use of the Products give Customer the right to do so to obtain information necessary to render the Products interoperable with other software; provided, however, that Customer must first request such information from Licensor, and Licensor may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the Products to ensure that Licensor’s (and its suppliers’) proprietary rights in the Products are protected.
4.4 Customer shall take all reasonable security measures required to ensure that access to the Products is restricted to those personnel who need access to the Products in order to perform their duties to Customer, and Customer shall ensure that all such users are informed of and comply with the restrictions set out in this Agreement. Customer shall be fully responsible for all of its authorized users' access to, and use of, the Products.
4.5 In the event any feedback or suggestions Customer makes result in any improvements, modifications or enhancements to the Products (collectively, “Product Modifications”), Customer hereby irrevocably assigns to Licensor, exclusively, throughout the world, and in perpetuity, all right, title and interest, including all intellectual property rights, in and to such Product Modifications, and Customer hereby waives any and all moral rights in such Product Modifications. Notwithstanding the foregoing, in no event does Licensor guarantee that Customer’s suggestions, modifications or corrections to errors Customer identifies will be included in any future version of the Products.
5. CUSTOMER CONTENT
5.1 Customer hereby grants to Licensor, and Licensor hereby accepts, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, non-sublicensable, world-wide, royalty-free, limited license to reproduce, create derivative works from, distribute, perform, display and otherwise use Customer Content for the sole purpose of providing access to the Products and fulfilling Licensor’s other obligations under this Agreement or any other agreement between Licensor and Customer.
5.2 Customer shall not, directly or indirectly, send, submit, post, receive or otherwise facilitate, or in any way use, or permit to be used, the Products to send, submit, post, receive or otherwise facilitate the transmission of any materials that are abusive, obscene, profane, sexually explicit, threatening, or materials containing blatant expressions of bigotry, racism or hate. Customer shall comply with all applicable laws in its use of the Products (including, but not limited to export/import laws and laws relating to privacy, obscenity, copyright, trademark, confidential information, trade secret, libel, slander or defamation).
5.3 Customer or its authorized users are solely responsible for applying the appropriate level of access rights to Customer Content and to communications involving the use of the Products. Licensor shall not be responsible or liable for the deletion or accuracy of Customer Content.
5.4 Without limiting the generality of any other terms, conditions or restrictions contained in this Agreement, Customer agrees that, prior to any use of the Products or submission of any Customer Content, Customer will secure all necessary consents and permissions to record any individual who appears or may be heard in such Customer Content, and from any individual or entity whose business information is included in or discussed in any Customer Content (for clarity, in no event will Customer include any individual’s personal information in any Customer Content), and in each case, such consent will be sufficient to permit Licensor to use, store and process such Customer Content as part of its operation of the Products, including without limitation, any analytical or reporting functionality provided as part of the Products, or analysis required to improve the Products. Customer is solely responsible for determining which privacy, data protection or other laws apply to Customer Content and its use by Licensor hereunder, and for notifying and obtaining the consent from all third parties for the use of Customer Content as part of the Products and expunging, prior to submission of Customer Content to the Products, those portions of such Customer Content that Customer is not entitled to provide to Licensor under any applicable laws.
6. FEES AND PAYMENTS
6.1 Customer shall pay Licensor the License Fees set out in each License Order Form. The License Fee under each License Order Form will be payable in full on or before the Start Date, and the License Fee for each Renewal Term (as defined below) will be payable on or before the commencement of each such Renewal Term. All License Fees are non-refundable.
6.2 Customer shall pay each invoice issued by Licensor within 30 calendar days after receipt. If Customer fails to pay any amounts in accordance with this Section 6, Licensor may, without prejudice to any other right or remedy, suspend any and all services to be provided under this Agreement or any other agreement until all such unpaid amounts have been paid. All amounts that are not paid when due shall bear interest at the lesser of 18% per annum or the maximum lawful rate from the due date until payment is received. Unless otherwise specified in the applicable License Order Form, all payments under this Agreement shall be in United States Dollars.
6.3 The fees and charges payable hereunder do not include any applicable sales, use, excise, GST, HST, value-added or other taxes or duties. Customer is responsible for paying same.
6.4 The License Fee applicable to each Product may be increased by Licensor at any time upon 30 days written notice to Customer, provided that any License Fee increase will not be effective until the next Renewal Term.
7.1 The Receiving Party shall not at any time during the term of this Agreement or for a period of 5 years after any termination or expiration of this Agreement, publish, disclose, or otherwise divulge any Confidential Information of the Disclosing Party to any third party, except to those of the Receiving Party’s employees who have a need to know such Confidential Information and who are bound by confidentiality obligations no less stringent than those contained in this Agreement, nor shall the Receiving Party use any such Confidential Information of the Disclosing Party for any purpose other than to perform its obligations or exercise its rights under this Agreement. The Receiving Party shall take all measures to maintain the confidential nature, and protect the secrecy, of all Confidential Information of the Disclosing Party, which measures shall include the highest degree of care that the Receiving Party utilizes to protect its own information of a similar nature, but in no event less than a reasonable degree of care. The Receiving Party shall promptly notify the Disclosing Party in writing of any misuse or misappropriation of Confidential Information of the Disclosing Party which may or should come to the Receiving Party’s attention. The foregoing restrictions shall not apply to information that (i) is known to the Receiving Party without any confidentiality restrictions at the time of disclosure to the Receiving Party, (ii) has become publicly known through no wrongful act of the Receiving Party, (iii) has been rightfully received by the Receiving Party from a third party authorized to make such disclosure without restriction, or (iv) has been approved for release by written authorization of the Disclosing Party. In addition, nothing in this Agreement shall prohibit the Receiving Party from disclosing Confidential Information if legally required to do so by judicial or governmental order or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process in a judicial or governmental proceeding; provided that the Receiving Party shall (a) give the Disclosing Party prompt notice of such required disclosure prior to disclosure, (b) cooperate with the Disclosing Party to contest such disclosure or seek a protective order with respect thereto, and/or (c) in any event only disclose the exact Confidential Information, or portion thereof, specifically required to be disclosed.
7.2 Upon termination or expiration of this Agreement, the Receiving Party shall immediately stop using and shall return to the Disclosing Party all Confidential Information of the Disclosing Party, all copies, notes, diagrams, computer memory media and other materials that contain any portion of such Confidential Information, and, in the case of Customer, all Product-related specifications, data sheets, drawings, designs, and User Documentation, and reproductions thereof, and any and all similar materials in any way, in whole or in part, based thereon, as well as any and all similar materials which in any way contain, reflect or relate to any of the Products.
7.3 Notwithstanding the foregoing, it is understood that the Receiving Party’s computer systems may automatically back-up the Confidential Information of the Disclosing Party. To the extent that such computer back-up procedures create copies of any such Confidential Information, the Receiving Party may retain such copies in its regular archival or back-up computer storage system(s) for the period that such archives or back-ups are normally kept by the Receiving Party. All archived or backed-up Confidential Information shall be subject to the remaining confidentiality and non-use restrictions under this Agreement.
7.4 Notwithstanding anything to the contrary contained in this Agreement, at any time after execution of this Agreement, Licensor may issue a press release stating the non-confidential facts related to the relationship between the parties. In addition, Licensor may prepare one or more case studies relating to the relationship between the parties, provided that Licensor will submit each such case study for Customer’s approval (such approval not to be unreasonably withheld or delayed) prior to public dissemination.
8. DISCLAIMER OF WARRANTIES
8.1 LICENSOR AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY USING THE PRODUCTS. CUSTOMER UNDERSTANDS THAT LICENSOR AND ITS SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTIES AS TO PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE PRODUCTS ARE PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, ACCURACY, AND EFFORT IS WITH CUSTOMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS NOT RELIED ON ANY ORAL OR WRITTEN INFORMATION OR ADVICE, WHETHER GIVEN BY LICENSOR OR ANY OF ITS AGENTS OR EMPLOYEES.
9. CUSTOMER REPRESENTATIONS, WARRANTIES AND COVENANTS; MUTUAL INDEMNIFICATION
9.1 Customer hereby represents, warrants and covenants to Licensor that: (i) Customer has obtained consent from its authorized users for the collection, use and transfer of their personal information to be used solely for Licensor to provide the Products, and in conjunction with their use of the Products; (ii) Customer and its authorized users will use the Products and User Documentation only in accordance with this Agreement and any applicable laws and regulations; and (iii) the Customer Content, and its use by Licensor to provide the Products, will not infringe or misappropriate any intellectual property rights, privacy rights or confidential information of any third party or otherwise violate any applicable laws.
9.2 Subject to Section 10, Licensor agrees, at its own expense, to indemnify and hold Customer harmless against any damages, losses, expenses and costs (including reasonable legal fees and expenses) finally awarded by a court of competent jurisdiction, or under any settlement to which Licensor has consented in writing, to the extent arising from a claim that any Product, as used within the scope of this Agreement, infringes any patent, trademark or copyright owned by a third party under the laws of the United States or Canada, provided that Customer 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. THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF LICENSOR AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT BY THE PRODUCTS OF WORLDWIDE PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS.
9.3 Except for those amounts expressly subject to Section 9.2 above, Customer agrees to defend, indemnify and hold Licensor harmless against any damages, losses, expenses and costs (including reasonable legal fees and expenses) claimed by any third party, to the extent arising from or related to use of the Products by Customer or any of Customer’s authorized users.
10. LIMITATION OF LIABILITY
10.1 IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR ANY LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE
PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF LICENSE FEES PAID TO LICENSOR UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE FINAL EVENT GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES THAT THE LICENSE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT LICENSOR WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN ADDITION, LICENSOR DISCLAIMS ALL LIABILITY OF ANY KIND ON BEHALF OF LICENSOR’S SUPPLIERS.
11. TERM AND TERMINATION
11.1 Subject to the provisions allowing earlier termination as provided elsewhere in this Section 11, this Agreement shall take effect on the Effective Date and shall continue in force for a period of 12 months from the date on which the License Term under the last outstanding License Order Form terminates or expires.
11.2 Unless otherwise stated in the applicable License Order Form, the License Term for each Product shall be for a period of one year, commencing on the Start Date, and shall automatically renew for additional periods of one year each (each, a “Renewal Term”), unless either party notifies the other 30 days prior to the then-current expiration date that it does not wish to renew the License Term for such Product.
11.3 This Agreement, or any or all License Order Forms, may be terminated as follows:
11.3.1 By Licensor, effective immediately upon written notice to Customer, if Customer commits any breach of this Agreement (including any failure to pay amounts when due) or upon the insolvency of Customer, or the commencement by or against Customer of any case or proceeding under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of debtors, or the appointment of any receiver, trustee or assignee to take possession of the properties of Customer, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within 30 days from the date of said commencement or appointment, or the liquidation or dissolution of Customer; or
11.3.2 By Customer for convenience, effective 90 days after written notice to Licensor, provided that Customer pays (or has already prepaid) the full amount of the License Fees for all Products for the then-current License Term(s) under any License Order Form(s) being terminated.
11.4 Upon any termination of this Agreement pursuant to this Section 11, Customer shall, at Licensor’s option, either: (i) return to Licensor all physical media containing any User Documentation or any Confidential Information of Licensor (and delete and cause all authorized users to delete the same from electronically stored media), or (ii) destroy all physical media containing any User Documentation or Confidential Information of Licensor (and delete the same from electronically stored media), and in either case, provide Licensor with a certificate attesting to such destruction and deletion, in a form satisfactory to Licensor and signed by an officer of Customer.
11.5 Upon any termination or expiration of this Agreement for any reason, any amounts owed to Licensor under this Agreement before such termination or expiration will be immediately due and payable. Upon termination or expiration of this Agreement for any reason, the following provisions shall survive and remain effective: Section 6, Section 7, Section 8, Section 9, Section 10, Section 11 and Section 12.
12.1 Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of the Products. Customer agrees that Customer will not export or re-export the Products in any form without the appropriate United States and foreign government approval.
12.2 This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, shall be governed by and interpreted in accordance with the laws of the province of Ontario and the federal law of Canada applicable therein, without giving effect to any choice of law principles that would require the application of the laws of a different jurisdiction. The United Nations Convention on the International Sale of Goods shall not be applicable to this Agreement.
12.3 When the Customer is the U.S. Government, the Products and User Documentation are hereby identified as “commercial items,” as that term is defined at 48 C.F.R. 2.101, and more specifically as “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, the Products and User Documentation are being provided to U.S. Government Customers (a) only as a commercial end item and (b) with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
12.4 Customer shall not make or purport to make any assignment, transfer or conveyance, in whole or in part, of its rights or obligations under this Agreement without the prior written consent of Licensor. In addition, in the event of any Change of Control, Customer shall provide Licensor with written notice no less than 30 days prior to completion of such Change of Control. Failure to provide such notice within such time period shall constitute a material breach of this Agreement by Customer. Subject to the foregoing, the rights and benefits of the parties under this Agreement shall accrue to, and run in favor of, each party’s successors and assigns. The obligations of the parties under this Agreement shall be binding upon their respective successors and assigns. Nothing in this Agreement shall be construed to grant any person or entity not a party hereto any rights or powers whatsoever.
12.5 The provisions of this Agreement are severable. If any provision or part of this Agreement shall be held by any court or other official body of competent jurisdiction to be invalid or unenforceable for any reason, the remaining provisions or parts hereof shall continue to be given effect and shall bind the parties hereto.
12.6 All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been duly given if sent via e-mail to the address indicated on Licensor’s website and as provided by Customer during the account registration process.
12.7 In the event that either party hereto shall be rendered wholly or partly unable to carry out its obligations under this Agreement by reason of causes beyond its reasonable control, including, but not limited to, acts of God, accidents, fire, natural disaster, epidemic or pandemic disease, act of government, shortage of equipment, materials, supplies or services beyond the reasonable control of such party, strike, labor dispute or walkout, Internet backbone outage, or any other cause beyond the reasonable control of the affected party, then the performance of the obligations of the affected party shall be excused during the continuance of any inability so caused provided that the party whose performance is delayed or prevented promptly notifies the other party of the nature and anticipated duration of the force majeure event.
12.8 The headings of the Sections of this Agreement have been inserted for convenience of reference only and shall in no way affect the interpretation of any of the terms or conditions of this Agreement. As used in this Agreement, (i) neutral pronouns and any derivations thereof shall be deemed to include the feminine and masculine; (ii) the words “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole, including all attachments, exhibits, schedules and License Order Forms, as the same may be from time to time amended or supplemented and not to any subdivision of this Agreement; (iii) the words “party” and “parties” refer, respectively, to a party or to both of the parties to this Agreement; (iv) the word “including” is not intended to be exclusive and means “including without limitation”; and (v) unless specified otherwise, the word “days” refers to calendar days. The terms “will” and “shall” are used interchangeably and indicate that the specified action or forbearance is mandatory. The English language version of this Agreement will be used in construing and interpreting this Agreement if this Agreement is ever translated into any other language.
12.9 It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of Section 3.1, Section 4, Section 7.1, Section 7.2 or Section 7.3 by Customer will cause Licensor irreparable damage for which recovery of money damages would be inadequate, and that Licensor shall therefore be entitled to obtain timely injunctive relief to protect Licensor’s rights under this Agreement in addition to any and all remedies available at law.
12.10 This Agreement contains the entire agreement between the parties with respect to the transactions referred to herein and supersedes all prior and contemporaneous arrangements or understandings, whether oral or written, with respect to the subject matter hereof. No supplement, modification or amendment to this Agreement shall be binding unless evidenced by a writing signed by the party against whom it is sought to be enforced. The failure of either party to insist in any one or more instances upon performance of any term, covenant or condition of this Agreement shall not be construed as a waiver of its future performance. The obligations of either party with respect to such term, covenant or condition shall continue unchanged and in full force and effect. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.