rXpress Right to Use License

READ THIS LICENSE AGREEMENT CAREFULLY BEFORE USING THIS SOFTWARE (THE "PROGRAM") OR THE ACCOMPANYING USER DOCUMENTATION (THE "DOCUMENTATION"). THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PROGRAM AND DOCUMENTATION BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND 366 SOFTWARE INC. ("366 SOFTWARE"), AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES WITH RESPECT TO ITS SUBJECT MATTER. BY INSTALLING, COPYING OR USING THE PROGRAM, YOU ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD RETURN THE PROGRAM AND DOCUMENTATION WITHIN FIFTEEN (15) DAYS OF RECEIPT.

1. DEFINITIONS
1.1 "Designated Equipment" means an equipment configuration comprising an agreed to number of computer servers and computer desktops as specified in the invoice or purchase acknowledgement provided by 366 Software to you in connection with this Right to Use License and other non-specified equipment on the network.
1.2 "Documentation" means flow charts, logic diagrams, program listings, operating instructions, user manuals, and related materials purchased in connection with the Licensed Software.
1.3 "Licensed Software" means those data processing programs for which you have purchased this Right to Use License and any Updates to such programs provided to you by 366 Software in accordance with the terms of Section 2.5 below, if any. Licensed Software may include property of third parties who have granted licenses to 366 Software.
1.4 "Proprietary Information" means that information which 366 Software desires to protect against unrestricted disclosure or competitive use and which is designated as such in writing by 366 Software or is disclosed orally and within thirty (30) days thereafter is reduced to tangible form pursuant to this License. Proprietary Information may include property of third parties who have granted licenses to 366 Software.
1.5 "Update(s)" means any modifications, enhancements, extensions to or other derivative work of the Licensed Software and/or documentation made by or on behalf of 366 Software, and for which you have paid an annual service/support fee.
1.6 "Upgrade(s)" means any enhancements, product capability expansion or other derivative work of the Licensed Software and/or documentation made by or on behalf of 366 Software, and for which you have paid a nominal fee.

2. LICENSE GRANTED
2.1 Subject to the conditions herein and upon initial use of the Licensed Software on the Designated Equipment, 366 Software hereby grants to you a non-transferable, non-exclusive, limited license to use the Documentation and the Licensed Software in machine-readable form on the Designated Equipment. Ownership of the Program and title to all copies of the Licensed Software and Documentation will remain at all times with 366 Software. No license is granted for use of the Licensed Software on other than the Designated Equipment, except as expressly provided in this Agreement. No license, right or interest in any trademark, trade name or service mark of 366 Software is granted under this License.
2.2 This License, the Licensed Software, the Documentation, any other information provided by 366 Software to you and any licenses and rights granted hereunder, may not be sold, leased, assigned, sublicensed or otherwise transferred, in whole or in part, by you.
2.3 In the event that, and only for so long as, your Designated Equipment is not operative, you may transfer to and use the Licensed Software on backup equipment provided you inform 366 Software of any such transfer in writing.
2.4 You shall not disassemble, decompile or otherwise reverse engineer the Licensed Software.
2.5 In the event 366 Software, in its sole discretion, provides Upgrades to the Licensed Software and/or Documentation, and you accept the same, such Upgrades shall be deemed Licensed Software licensed to you hereunder and subject to the terms and conditions of this Agreement.
2.6 You shall reproduce and apply any copyright or other proprietary rights notices included on or in the Licensed Software to any copies thereof, in whole or in part, in any form.
2.7 You may not rent, lease, lend, timeshare, act as a service bureau or subscription service, or provide commercial hosting services of the Licensed Software.
2.8 The Licensed Software may include source code provided as standard shipment, which source code shall be governed by the terms of this Agreement.

3. NO OBLIGATIONS, MANDATORY ACTIVATION, AND RIGHT TO AUDIT
3.1 The Licensed Software is delivered as is, and you shall not require any concessions of 366 Software, including requiring 366 Software to perform any obligations or to incur any liability.
3.2 THERE ARE TECHNOLOGICAL MEASURES IN THIS LICENSED SOFTWARE THAT ARE DESIGNED TO PREVENT UNLICENSED USE OF THE SOFTWARE. You may not be able to exercise your rights to the Licensed Software under this Agreement after a designated period time or on alternate computer hardware. You may also need to contact 366 Software or its affiliates to reactivate the Licensed Software. 366 Software will use those measures to confirm you have a legally licensed copy of the Licensed Software.

4. TERM AND TERMINATION
4.1 The effective date of this Agreement shall be the date of receipt of the Licensed Software on the Designated Equipment or the date of the renewal of the Licensed Software by payment of the annual service/support fee or the usage fee. The term of the license is limited to the time specified in the purchase acknowledgement or sales invoice, subject to the termination provisions of this Article. This license may be renewed by payment of the annual service/support fee or payment of the usage fee.
4.2 366 Software may terminate this License upon fifteen (15) days written notice to you, if you fail to comply with any of the material terms and conditions of this License and if such failure to comply is not corrected within said fifteen (15) day notice period.
4.3 You may terminate this Agreement at any time by returning to 366 Software or destruction of the Program, the Documentation, and all copies of either of them.
4.4 Upon termination of this License, use of the Licensed Software shall be discontinued and you shall either return to 366 Software or destroy all copies of the Licensed Software and Documentation. You shall, if requested by 366 Software, certify to 366 Software in writing that all copies of the Licensed Software have been returned or destroyed as required herein. Immediately upon termination, the license and rights granted hereunder shall automatically expire and you shall have no further rights or access to the Licensed Software and/or Documentation.

5. FEES
5.1 In consideration of the license and rights in the Licensed Software and Documentation granted by 366 Software hereunder, you agree to pay to 366 Software the License Fee specified in the invoice or purchase acknowledgement provided by 366 Software to you in connection with this Right to Use License. Terms are Net Thirty (30) days from the date of delivery of the Licensed Software and Documentation.
5.2 In order to renew this License, you will be required to pay the usage fee and/or annual service/support fee as specified in the invoice provided by 366 Software to you.

6. PROPRIETARY INFORMATION
6.1 366 Software hereby states and you acknowledge that the Licensed Software and Documentation constitute a valuable asset of 366 Software and are to be considered Proprietary Information.
6.2 You shall treat the Proprietary Information with the same degree of care as you treat your own proprietary information, but in all cases using at least a reasonable degree of care.
6.3 You shall not use, disclose, make or have made any copies of the Proprietary Information, in whole or in part, without the prior written authorization of 366 Software, provided however, that you shall be able to maintain non-productive backup or archival copies of the Licensed Software during the term of this Agreement.
6.4 You shall not publish any results of benchmark tests run on the Licensed Software.

7. WARRANTIES
7.1 366 Software hereby warrants its ownership of the Licensed Software and its right and power to enter into this License and, to the best of its knowledge, the right to grant to you the rights to the Licensed Software set forth in Article 2 above. 366 Software warrants that, to the best of its knowledge and belief, the Licensed Software and Documentation does not infringe any copyright, industrial design, trade secret or trademark rights of any third party and you are not and shall not be liable to any third party for the use thereof.
7.2 366 Software warrants that the Licensed Software shall substantially conform to its user documentation, as it exists at the date of delivery, for a period of ninety (90) days from the date of delivery. 366 Software's sole obligation under this warranty shall be limited to using commercially reasonable efforts to correct defects which result in material non-compliance with such user manual and supply you with a corrected version of the Licensed Software as soon as practicable after you have notified 366 Software of such defects. 366 Software need not treat minor discrepancies in the Documentation as errors in the Program, and may instead furnish corrections to the Documentation. 366 Software does not warrant that: (i) operation of any of the Licensed Software shall be uninterrupted or error free or that all errors will be corrected, or (ii) functions contained in the Licensed Software shall operate in the combinations which may be selected for use by you or meet your requirements. 366 Software's warranty obligations shall be void if the Licensed Software is modified without the written consent of 366 Software.
7.3 366 Software warrants that the media on which any Upgrade is furnished shall be free of defects in materials and workmanship under normal use for a period of ninety (90) days from the date of delivery. All Upgrades and Updates are provided on an "AS IS" basis without warranty of any kind.
7.4 The warranties set forth in this Article are expressly subject to the limitations of Article 9 below.

8. PATENT, TRADE SECRET AND COPYRIGHT INDEMNIFICATION
8.1 366 Software shall have the right to control the defence of any action arising out of any breach or claimed breach of the warranty contained in Article 7.1 hereof. 366 Software will indemnify and hold you harmless from and against any action, suit, loss, cost, liability and expense (including reasonable counsel fees) arising out of any breach or claimed breach of the warranty contained in Article 7.1 hereof, provided you have given prompt written notice of such action, suit, loss, cost, liability or expense to 366 Software. Notwithstanding the foregoing, you may, at your sole expense and risk, participate in the defence of such action if you so desire.
8.2 THIS ARTICLE STATES THE ENTIRE LIABILITY OF 366 SOFTWARE WITH RESPECT TO INFRINGEMENT OF COPYRIGHTS, TRADE SECRETS, PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS BY THE LICENSED SOFTWARE, DOCUMENTATION OR ANY PARTS THEREOF AND 366 SOFTWARE SHALL HAVE NO ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT.

9. LIMITATION OF LIABILITY
9.1 IN NO EVENT WILL 366 SOFTWARE BE LIABLE FOR ANY LOST REVENUES OR PROFITS OR OTHER SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, EVEN IF 366 SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 366 Software's maximum liability for damages shall be limited to the license fees paid by you under this Agreement for the particular Licensed Software which caused the damages.

10. FORCE MAJEURE
If the performance of this Agreement or any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder with dispatch whenever such causes are removed.

11. TAXES
All payments required under Article 5 or otherwise under this Agreement are exclusive of taxes and you agree to bear and be responsible for the payment of all such taxes including, but not limited to, all sales, use, excise, rental receipt, personal property or other taxes which may be levied or assessed in connection with this License.

12. CONSENT TO USE OF DATA
You agree that 366 Software and its affiliates may collect and use technical information gathered as part of the usage fee license and/or support services provided, if any, related to the Licensed Software. 366 Software may use this information solely for determining your invoice or for providing support services, and will not disclose this information in a form that personally identifies you.

13. GENERAL PROVISIONS
13.1 All provisions hereof regarding liability and limits thereon and proprietary information shall survive the termination of this Agreement.
13.2 If any term of this Agreement is held to be invalid or unenforceable, the remaining terms shall continue to be binding on both parties.
13.3 This Agreement shall be binding on and inure to the benefit of the parties, their successors and assignees.
13.4 You agree to comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the Licensed Software, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable laws.
13.5 This Agreement is made under and shall be governed by and construed in accordance with the laws of the Province of Alberta as a contract made and performed therein.