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Practice Workbench 2.0 License Agreement

IMPORTANT-READ THE TERMS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE USING ESSWORK PRACTICE WORKBENCH: This License Agreement (“Agreement”) is a legal agreement between you (“You” or “Your”) and Ivar Jacobson International SA (“IJI”) for EssWork Practice Workbench 2.0 which includes associated media, practice, printed materials, and “online” or electronic documentation (“Product”). YOU EXPRESSLY AND UNCONDITIONALLY AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY DOWNLOADING, COPYING, OR OTHERWISE USING THE PRODUCT. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD OR USE THE PRODUCT.

1 Grant of License

1.1 General License Grant
Subject to the terms and conditions of this Agreement, IJI hereby grants to You a limited, non-exclusive and non-transferable license to Use at Your own risk, solely for Your internal business purposes, the Product in accordance with this Agreement. For the purposes of this section, “Use” means to access, install, download or otherwise benefit from using the content and functionality of the Product.

1.2 New Essence Practices and Methods
Subject to the terms and conditions of this Agreement, IJI hereby grants to You a limited license to create new Essence practices and methods using the Product (“New Work”) and use such New Work for Your commercial or business purposes.

1.3 Enhancements
Subject to the terms and conditions of this Agreement, IJI hereby grants to You a limited license to enhance the Product by installing additional software plug-ins (“Enhanced Product”). Should You enhance the Product, it must be clear which portions are enhancements of the Product and which portions are the original Product. IJI assumes no responsibility or liability for the Enhanced Product.

1.4 Trademarks & Copyright
This Agreement does not grant You any rights in connection with any trademarks or service marks of the Product or IJI, its subsidiaries or affiliates. You may not modify any proprietary notices or marks contained within the Product.

1.5 Restrictions
Other than as set out in Sections 1.2 and 1.3, You may not modify, reproduce or prepare the Product into derivative works based upon the Product in whole or in part. You may not reverse engineer, resell, assign, or otherwise transfer, provide, redistribute, sublease, rent, lease, lend or sell the Product and its accompanying license key to any third person in whole or in part. You further agree that You may not export or re-export the Product, or any part thereof, to any country, person or entity.

2 Term and Termination

2.1 Term
Unless terminated earlier in accordance with Sections 2.1 or 2.2, the term of this Agreement shall be effective upon the date set out in the accompanying Commercial Terms document IJI provides to You for Your Use of the Product and shall continue for an initial term of one (1) year (“Initial Term”). Subject to Section 3.1, this Agreement will thereafter renew for any number of successive renewal terms of one (1) year each (each a “Renewal Term”) unless and until either party notifies the other at least thirty (30) days prior to the end of the then current term of its election to terminate this Agreement.

2.2 Termination
This Agreement will be terminated on the earlier of: (i) immediately upon written notice if You violate any material term or condition of this Agreement; or (ii) written notice of termination by IJI if You fail to pay any or all Product Fees or other amounts due hereunder within ten (10) days of receipt of such notice.

2.3 Effect of Termination
Upon termination or expiration of this Agreement: (a) You must make all payments due and payable within thirty (30) days of termination; (b) You must return, delete or otherwise destroy (and confirm in writing such deletion or destruction) all copies of the Product within ten (10) days of the effective date of termination or expiration; and (c) the Support Services will no longer be available to You.

3 Fees

3.1 Fees and Payments
You agree to pay the product fees specified in the accompanying Commercial Terms document IJI provides to You for Your Use of the Product (“Product Fees”). Product Fees are invoiced annually in advance of the Initial Term or any Renewal Term and are due and payable within thirty (30) days of the date of IJI’s invoice. The Product Fees may be increased annually by providing You with notice of not less than thirty (30) days prior to the end of the Initial Term or Renewal Term.

3.2 Taxes
You shall, in addition to the other amounts payable under this Agreement, pay all sales, use, excise, import or export, value added, withholding or other taxes, duties or fees, federal, provincial, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, exclusive only of taxes on the net income, net worth or capital of IJI. You shall gross up any payments to be made to IJI to ensure the full amount of fees hereunder is received by IJI.

3.3 Interest
All amounts due hereunder that are not paid within thirty (30) days of the due date shall bear interest at the rate of one point five percent (1.5%) per month (18% per annum), or at the highest rate allowed by law, whichever is less, from the date due until paid.

3.4 Suspension
IJI reserves the right to suspend the performance of any or all of its obligations hereunder upon ten (10) days’ prior written notice if amounts are unpaid when due and remain unpaid at the end of such notice period.

4 Support
Subject to Sections 2 and 3, IJI agrees to provide to You the maintenance and support as described in Schedule A attached hereto (collectively, the “Support Services”).

5 Consent to Use of Data
You agree that IJI and its affiliates or subsidiaries may collect and use technical information gathered relating to Your download and/or use of the Product. IJI may use this information to improve its products or to provide customized services or technologies to You and will not disclose this information in a form that personally identifies You.

6 Limited Warranty
THE PRODUCT IS PROVIDEDAS IS”. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRODUCT AND ANY NEW WORK IS ASSUMED BY YOU. You are responsible for selecting the software to achieve its intended results and to conduct virus testing and other standard tests before use. IJI makes no warranty of the Product’s function or quality for any specific purpose. IJI makes no warranty or condition that the Product will be error-free or free from other failures.

IJI warrants that the Support Services to be provided hereunder will be performed with reasonable skill and in a professional manner. IJI’s sole responsibility and Your sole remedy with respect to deficient or non-conforming Support Services is to use commercially reasonable efforts to re-perform such services in accordance with the terms and conditions of this Agreement. IJI does not warrant that the Support Services will meet all of Your needs or that the Support Services will be error free.

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

7 Limitation of Liability

7.1 Exclusion of Incidental, Consequential and Certain Other Damages
Under no circumstances and under no legal theory, whether in tort, contract or otherwise, shall IJI or its supplier be liable to You or to any other person for any special, incidental, punitive, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Product, links to third party products, the provision of or failure to provide support or other services, information, software, and related content through the Product or otherwise arising out of the use of the Product or the Support Services, or otherwise under or in connection with any provision of this Agreement, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of IJI or any supplier, and even if IJI or any supplier has been advised of the possibility of such damages.

7.2 Limitation of Liability
IJI’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS FOR DIRECT DAMAGES RELATED TO OR ARISING OUT OF YOUR USE OF THE PRODUCT OR THE PROVISION OF THE SUPPORT SERVICES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE IJI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORSEEABLE SHALL NOT EXCEED THE PRODUCT FEES PAID BY YOU TO IJI FOR THE PRODUCT GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE LIMITATIONS OF THIS SECTION 7.2 SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH.

8 Links to Third Party Products
You may link the Product to third party products. The third party products are not under the control of IJI and IJI is not responsible for the contents or performance of any third party products or for the function of the Product together with any third party products. IJI is providing these links to third party products to You only as a convenience, and the inclusion of any link does not imply an endorsement by IJI of the third party product. IJI does not accept any liability regarding links to third party products.

9 Limitation of Liability and Remedies
You agree that it is a specific requirement of this license that You have accepted that IJI is not liable for any form of damages whatsoever.

10 Entire Agreement
This Agreement constitutes the entire agreement between You and IJI relating to the Product and the Support Services and it supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product and the Support Services. This Agreement shall not be modified except by a written agreement executed by an authorized representative of IJI and You.

11 Copyright
The Product is confidential and protected by copyright and other intellectual property laws and treaties. IJI or its suppliers own the title, copyright, and other intellectual property rights in the Product. The Product is licensed, not sold. No right, title or interest in or to any trademark, service mark, logo or trade name of IJI is granted under this Agreement. You agree to take all reasonable steps to safeguard IJI by ensuring that no unauthorized person shall have access to the Product and that no unauthorized use is made of the Product or IJI’s trademarks or other intellectual property rights.

12 Severability
If a provision of this Agreement is rendered invalid, the remaining provision shall remain in full force and effect.

13 Notices
Notices shall be in writing and shall be deemed delivered in person when delivered by courier, email with proof of delivery or mailed postage prepaid by certified or registered mail – return receipt requested – to the current business address of the addressee.

14 Further Assurances
Each of the parties hereto shall promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other party hereto may reasonably require from time to time for the purpose of giving effect to this Agreement and shall use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement.

15 Waiver
The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

16 Amendment
No modification, amendment or variation hereof shall be of effect or binding upon the parties hereto unless agreed to in writing by them.

17 Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of Sion, Switzerland. The Swiss Court shall have exclusive jurisdiction over matters arising out of or in connection with this Agreement. This Agreement is written in the English language, which language shall be controlling in all respects.


Schedule A

Maintenance & Support
i) New Versions. During the Initial Term and each Renewal Term, IJI will provide You with any new versions of the Product (“New Versions”) made generally available by IJI. All New Versions will be provided to You in electronic or other suitable form as determined by IJI in its discretion. Nothing herein shall require IJI to furnish to You as part of the support services any New Versions which IJI does not generally make available to its other customers as part of its support services or for which You are not licensed to use.

ii) Updates. You acknowledge that IJI may, but is under no obligation to, from time to time provide You with additional features, functions, plug-ins, add-ons, service packs, upgrades, updates or other similar files related to this Product (“Updates”). Any Updates You obtain or receive may only be used in conjunction with the Product for which it was designed.

iii) Patches. During the Initial Term and each Renewal Term, IJI shall provide bug fixes to You for Product software faults and documentation problems (“Patches”) which are generally made available by IJI.

iv) Product. All New Versions, Updates and Patches shall be deemed to be part of the Product and Your use of the New Versions, Updates and/or Patches shall be subject to the same terms and conditions that apply to Your use of the Product under the License Agreement.

v) Customization & Training. Advanced customization of the Product and training related to the Product is not covered by this Agreement and would be subject to a separate agreement outlining the details of such arrangement.

vi) Technical Support. During the Initial Term and each Renewal Term, IJI shall provide technical support to You which shall consist of providing responses to general questions on the operation and use of the Product. You may contact IJI for technical support services by email at the following address or by contacting Your IJI customer representative directly: [email protected]


Commercial Terms

Supplement for Trial Versions

If the Product is identified as a trial or evaluation version, Your Use of the Product is governed by this Commercial Terms supplement. In the event of any conflict between the terms of the EssWork Practice Workbench 2.0 License Agreement (“Agreement”) and these Commercial Terms, the terms of these Commercial Terms shall govern.

Evaluation
IJI grants You a non-exclusive, royalty-free, non-transferable, non-assignable right, for the Term, to use the Product in accordance with the Agreement and solely for the purpose of evaluating the Product. Any information and feedback provided by You to IJI, including suggestions for the Product made by You, shall be the exclusive property of IJI, together with all rights therein.

Term
Notwithstanding Section 2.1 of the Agreement, unless terminated earlier in accordance with Sections 2.1 or 2.2 of the Agreement, the term of the Agreement shall be effective upon the date IJI sends the Product to You and shall continue for thirty (30) days (“Term”).

Fees
No Product Fees shall be due and payable by You to IJI for this trial or evaluation version of the Product.

Support
The Support Services set out in Section 4 of the Agreement shall not be available to You for this trial or evaluation version of the Product.

Last Revised: May, 2019

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