SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT, together with the Order Form and Subscription Terms (as such terms are defined below) which are incorporated herein by reference, is a binding agreement (the “Agreement”) between BidBow Inc., a corporation incorporated under the laws of Canada, with its principal office at 1055 Rue Lucien-L'Allier Suite 343, Montreal, Quebec H3G 3C4 Canada ("BidBow") and the person or entity identified on the Order Form as the Customer ("Customer") (BidBow and Customer each, a “Party” and, collectively, the “Parties”).
BidBow provides the Software solely on the terms and conditions set forth in this Agreement and on the condition that Customer accepts and complies with them. By checking the "accept license agreement" and “accept Subscription Terms” boxes on the Order Form, you (a) accept all of the terms of this Agreement, including the Subscription Terms, and agree that Customer is legally bound by its terms; and (b) represent and warrant that: (i) you are of legal age to enter into a binding agreement; and (ii) if Customer is a corporation, governmental organization, or other legal or business entity, you have the right, power, and authority to enter into this Agreement on behalf of Customer and bind Customer to its terms. If Customer does not agree to the terms of this Agreement, BidBow will not and does not license the Software to Customer and you must not download the Software or access the Documentation.
Notwithstanding anything to the contrary in this Agreement or your or Customer’s acceptance of the terms and conditions of this Agreement, no license is granted (whether expressly, by implication or otherwise) under this Agreement, and this Agreement expressly excludes any right concerning any Software that Customer did not acquire lawfully or that is not a legitimate, authorized copy of BidBow's Software.
For the purposes of this Agreement:
* “Affiliate” means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity. For the purposes of this definition, an entity shall control another entity if the first entity: (i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity; or (ii) has the ability to elect a majority of the directors of the other entity;
* “Agreement” means this agreement (including the cover page) and all Schedules hereto and all related Order Form(s);
* “Business Day” means any day other than a Saturday, Sunday, or statutory holiday in the Province of Québec or the jurisdiction in which Customer is located;
* “Change of Control” with respect to Customer, means a sale or transaction in which any Person or group of Persons acquires the power to direct, or cause the direction of, management, business or policies of Customer, whether through the ability to exercise voting power, by contract or otherwise;
* “Confidential Information” means (i) any and all non-public, confidential or proprietary information of a Party, including without limitation any information relating to the existence or content of this Agreement, the Software (including its object code and source code), the Documentation, the Subscription Services (if applicable), a Party’s business, products, services, activities, operations, business affairs, clients and prospects, Intellectual Property, technology, know-how, design rights and trade secrets, whether such information is provided orally, in writing, in computer readable form or otherwise and whether or not it is specifically identified as confidential, and (ii) any copies, extracts or reproduction, in whole or in part, of any of the foregoing;
* “Discloser” has the meaning set out in Section 12.1;
* “Documentation” means any documentation, user guide, operating manual, specifications or other written information relating to the Software or any Enhancement provided through the Subscription Services (if applicable) provided by BidBow hereunder, in any form and on any medium, and includes the knowledge base available at [https://bidbow.com/knowledge-base/];
* “Enhancements” means any new versions, releases, updates, upgrades or other enhancements to the Software and Documentation, which BidBow, in its sole discretion, may make generally available to its customers entitled to Subscription Services during the Term, which are provided to Customer as part of the Subscription Services;
* “Equipment” means the hardware, software, network, network configuration, third party software and other requirements to allow the Software’s installation and use, as set out in the Documentation;
* “Fees” has the meaning set out in Section 6.1;
* “Initial Term” has the meaning set out in Section 8.1;
* “Intellectual Property Rights” means any and all patents, copyrights, trademarks, trade names, trade secrets, moral rights, rights of publicity and privacy, and other proprietary rights, and all registrations or applications in relation to the foregoing, in any part of the world;
* “Intellectual Property” means any and all ideas, concepts, inventions, methods, processes, know-how, works, software, computer programs and other computer software (including, without limitation, all source and object codes, algorithms, architectures, structures, display screens, lay-out and development tools), database, design, plans, drawings, brochures, website content, sales and advertising literature and other marketing materials, and any improvements thereon or applications or derivative works thereof, and all other forms of intellectual property, all whether or not registered or capable of such registration;
* “Manager Account” has the meaning set out in Section 5.3(a)5.2(a);
* “Manager” has the meaning set out in Section 5.3(a);
* “Open Source License Terms” has the meaning set out in Section 3.4;
* “Order Form” means the online order form under which Customer subscribes to the Subscription Services and which, among other things, sets forth (i) the term of the subscription, (ii) the number of authorized Users, and (iii) the Fees;
* “Recipient” has the meaning set out in Section 12.1;
* “Renewal Term” has the meaning set out in Section 8.2;
* “Software” means the “BidBow” software solution for preparing construction project bids, as further described in the Documentation, and all related Enhancements;
* “Start Date” has the meaning set out in Section 8.1;
* “Subscription Services” has the meaning set out in Section 4.1;
* “Subscription Terms” means the terms and conditions of payment, termination and other terms and conditions set out in Schedule A (also available at [https://bidbow.com/subscription-terms/]), which are incorporated herein by reference and form part of this Agreement;
* “Term” means, collectively, the Initial Term and all Renewal Term(s), if any, as set forth in the Order Form(s);
* “Third Party Licenses” has the meaning set out in Section 3.6;
* “Third Party Modules” has the meaning set out in Section 3.6;
* “Trademarks” means trade-marks, trade-names, brands, trade dress, business names, domain names, designs, graphics, logos and other commercial symbols and indicia of origin whether registered or not and any goodwill associated therewith;
* “User Account” has the meaning set out in Section 5.3(b)5.2(b); and
* “User” means an employee, an independent contractor, consultant or agent of Customer or of any of its Affiliates: (i) who is authorized by Customer to use the Software; (ii) for whom a subscription has been ordered; and (iii) who has been supplied an active license key by BidBow.
2.1 License Grants.
(a) Subject to Customer’s compliance with the terms and conditions of this Agreement and payment in full of the applicable Fees, BidBow grants Customer a non-exclusive, non-transferable (except as provided in this Agreement) limited license to do the following, for the number of Users and the Term, exclusively through the Users, and solely in connection with Customer’s or its Affiliates’ internal business and operations: (i) download, install, access and use the Software in accordance with the Documentation on one computer controlled by Customer, each computer being for a single User; and (ii) use the Documentation.
(b) Except as otherwise provided herein, the Software shall only be accessed and used on the Equipment by the number of Users set out in the applicable Order Form, and it shall not be used through a remote access or other network.
(c) The license granted hereunder shall include the right for Customer to make a reasonable number of archival (i.e., not active) copies of the Software in machine-executable form as reasonably required for back-up and disaster recovery purposes (and for the disaster recovery service/system). Customer’s archival copy of the Software may be hosted by a disaster recovery contractor to use in the event of inability to use the Software caused by a force majeure event, and for the purpose of testing disaster recovery procedures. All copies of the Software made by Customer (i) will be the exclusive property of BidBow; (ii) will be subject to the terms and conditions of this Agreement and (iii) must contain all of BidBow’ copyright or other proprietary rights notices as indicated on the Software.
(d) Sublicense. Customer may sublicense any of the rights granted under Section 2.1 to (i) its subcontractors, or (ii) its Affiliates and its Affiliate’s subcontractors, to the extent that such sublicenses are in connection with Customer’s (or its Affiliates’) use of the Software as provided herein, including with respect to the number of Users, and are subject to such sublicensee accepting all of the terms and conditions of this Agreement. For greater certainty, (i) the reference to “Customer” hereunder shall also include Customer’s Affiliates; and (ii) Customer shall be liable for any breach of this Agreement by Customer’s subcontractors or Affiliates or their respective Users. Sublicensees may not themselves grant any sublicenses.
2.2 Documentation. Customer may access the Documentation through the following link: [https://bidbow.com/knowledge-base/].
2.3 Delivery. BidBow shall make available the following available to Customer for download: (i) the Software, as soon as commercially possible as from the execution of an Order Form and receipt of the first payment as applicable, and (ii )Enhancements, as soon as commercially possible on or after the date on which such Enhancements are made generally available to BidBow’ customers. Customer shall be responsible to install all Enhancements. Customer acknowledges and agrees that Subscription Services may not be available if it fails to install the latest Enhancements.
3. CONDITIONS AND RESTRICTIONS
3.1 Equipment Requirements. Customer acknowledges and agrees that the performance of the Software is subject to Customer and Users accessing and using the Software on the Equipment. Unless otherwise agreed between the Parties, the provision of the Equipment is Customer’s sole responsibility. Customer waives any claims against BidBow if Customer does not meet the Equipment requirements.
3.2 Compliance. The Software contains technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under this Agreement. Customer and its Users shall not, and shall not attempt to, remove, disable, bypass, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
3.3 Inspection Rights. Upon BidBow’s request, Customer shall provide BidBow with an affidavit certifying that the Software is used in compliance with the terms of this Agreement. In addition, BidBow (or its agents) shall have the right, once a year, or upon reasonable belief that there may have been a breach hereunder, during regular business hours, to inspect the Software where it is used by Customer or its Affiliates; provided that: (i) BidBow gives Customer at least 5 days advance written notice of the inspection; and (ii) BidBow (or its agents) conducts the inspection during normal business hours. Customer shall provide BidBow (and its agents) access to the relevant records and facilities. If the number of copies of Software or Users is found to be greater than that contracted for under the applicable Order Form(s), BidBow may charge Customer the applicable current list prices therefor. If the resulting adjustments to the fees owing by Customer are greater than 5% of the fees previously paid by Customer, BidBow may also charge Customer the expenses associated with such audit in addition to an administration fee corresponding to 15% of the total fees paid by Customer. BidBow’s remedies set forth in this Section 3.3 are cumulative and are in addition to, and not in lieu of, all other remedies that BidBow may have at law or in equity, whether under this Agreement or otherwise.
3.4 Restrictions. Customer’s use of the Software is subject to any User restrictions specified in the applicable Order Form(s). Customer will not allow the Software to be used by, or disclose all or any part of the Software to, any person except the Users, shall not allow unauthorized users to directly or indirectly access the Software and shall not access it to build a competitive product or service. Except as provided herein, Customer may not (i) loan, rent, lease, transfer, convey, assign, grant a security interest in, sell, distribute or license the Software (or any part thereof); (ii) copy the Software except as set out in Section 2.1(c); or (iii) modify, combine and/or distribute the Software (or any part thereof) with any other software or code in a manner which would subject the Software to Open Source License Terms. For the purposes of this Agreement, “Open Source License Terms” means license terms of certain computer code (open source elements) which require such code to (x) be disclosed in source code form to third parties, (y) be licensed to third parties for the purpose of making derivative works, or (z) be redistributable to third parties at no charge. Customer may not sell information services to other parties through the use of the Software, whether in the form of a service bureau, reservation center, or other information processing entity. Customer shall not modify, translate or create derivative works based on the Software, or attempt to circumvent any licensing requirements hereunder. Customer shall not reverse engineer, decompile or disassemble Software without the express written consent of BidBow. BidBow reserves all other rights not expressly granted to Customer hereunder.
3.5 Notices. Customer shall not remove any copyright, trademark or patent notices that appear on the Software or Documentation. Customer is prohibited from removing or altering any of the Intellectual Property Rights notice(s) embedded in or that BidBow otherwise provides with the Software. Customer must reproduce the unaltered Intellectual Property Rights notice(s) in any authorized full or partial copies that Customer makes of the Software.
3.6 Access Runtime; Third Party Modules. Customer acknowledges and agrees that, if Customer does not already have a license to Microsoft Access, it will need to download Access Runtime to use the Software, and that Access Runtime is governed by the provisions of this Section 3.6 as a Third Party Module. Customer further acknowledges and agrees that (i) certain other third party software, content, data or other materials may be required to use, included or embodied in the Software (collectively, “Third Party Modules”); (ii) notices, if any, for these Third Party Modules are included with the Software and may be found in the Documentation, and links to the applicable third party licenses for these Third Party Modules (the “Third Party Licenses”) are accessible via links provided in the Documentation; (iii) Customer, Users, and, as the case may be, Customer’s clients are and remain subject to the terms and conditions and policies of such Third Party Modules; and (iv) by using such Third Party Modules, Customer expressly relieves BidBow from any and all liability arising from such use. Ownership of all Intellectual Property Rights in in such Third-Party Materials remains with the respective owners thereof. Customer is bound by and shall comply with all Third Party Licenses. Any breach by Customer or any of its Users of any Third Party License is also a breach of this Agreement.
3.7 Responsibility for Use of Software. Customer is responsible and liable for all uses of the Software and Documentation through access thereto provided by Customer, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Users or by any other person to whom Customer or a User may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this Agreement.
3.8 Viruses and Security. It is Customer’s responsibility to have, maintain in place and update virus protection software and security for all of its systems and data, including at a minimum firewalls, passwords, physical security, and access control policies. BIDBOW DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT THE SOFTWARE OR CUSTOMER’S DATA WILL REMAIN VIRUS-FREE. CUSTOMER WAIVES ANY CLAIMS HEREUNDER AGAINST BIDBOW TO THE EXTENT SUCH CLAIMS ARISE (I) FROM CUSTOMER’S FAILURE TO HAVE OR MAINTAIN CURRENT VIRUS PROTECTION, (II) AS A RESULT OF A FAILURE OR BREACH OF CUSTOMER’S SECURITY FOR ITS SYSTEMS OR DATA, OR (III) AS A RESULT OF ANY UNAUTHORIZED ACCESS TO CUSTOMER’S SYSTEMS (EXCEPT IF SUCH ACCESS IS MADE BY BIDBOW’S EMPLOYEES OR AGENTS).
4. SUBSCRIPTION SERVICES
4.1 Scope of Subscription Services.
(a) Subject to payment of all applicable Fees, BidBow shall provide (i) the Enhancements and (ii) the support services, the whole as set out in Schedule B (also available at the following URL: https://bidbow.com/subscription-services) (collectively, the “Subscription Services”), provided that Customer is not in default hereunder and is using the current version of the Software or the previous version of the Software.
(b) Subscription services do not include any new version or new release of the Software that BidBow may issue as a separate or new product, and BidBow may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.
(c) Notwithstanding anything herein to the contrary, Customer acknowledges and agrees that BidBow is under no obligation (i) to support the Software if the Software has been modified by Customer or a third party (other than a third party authorized by BidBow) and (ii) to produce or create any new Enhancements or new version or release of the Software.
(d) BidBow shall not provide any support necessitated by, and disclaims all damages arising in connection with, data corruption or disruption or modification of the Software caused by any Customer equipment or other third party hardware, software or interfaces.
4.2 Other Services. The Parties shall enter into separate services or similar agreement(s) for any services that are not part of the Subscription Services (e.g., live on-line training or development services).
5. OTHER CUSTOMER OBLIGATIONS
5.1 Assistance. Customer shall provide BidBow with all necessary information and assistance that is necessary for the performance of BidBow’ obligations hereunder or otherwise that is reasonably requested by BidBow.
5.2 Internet Connection. Customer acknowledges that (i) continuing access to the Software will require the computer on which the Software is installed to be connected to the internet regularly for the license key to remain active; (ii) the Documentation is available online only; (iii) Subscription Services such as support are available through chat and email only; and (iv) BidBow will provide all Enhancements via download from a website designated by BidBow; therefore, Customer's ability to use the Software and Subscription Services will require an internet connection. Securing and maintaining access to an internet connection is Customer's sole responsibility. BidBow has no obligation to keep license keys current, make the Documentation accessible or provide Enhancements or supports via any other media or channel.
5.3 Accounts and Credentials. The following accounts will be established by BidBow:
(a) A “Manager Account” will be created for the person in Customer’s organization responsible for managing the subscription (the “Manager”). BidBow will communicate with the holder of this account at the email provided when the account is created for all administrative matters relating to the Software and Subscription Services.
(b) A “User Account” will be created for all authorized users of the Software, to provide them with access to the Documentation, Enhancements and other Subscription Services.
At the time an account is created, the Manager or User must select a password. Customer is solely responsible (i) for maintaining the confidentiality of identifications and passwords for the Manager Account and User Accounts, as provided by Customer (or by BidBow at Customer’s request) in connection with the use of the Software, (ii) for restricting/protecting access to all Equipment while using the Software, and (iii) for all activity occurring under the accounts, including activity by an unauthorized person. Customer will notify BidBow immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
5.4 Backup Procedures. Customer is solely responsible for maintaining a reliable procedure external to the Software for reconstruction of lost or altered files, data, or programs to the extent deemed necessary by Customer.
5.5 Users. Customer is responsible for all use and misuse of the Software by the Manager or Users (including Affiliates of Customer) or their breach of the terms of this Agreement and shall indemnify BidBow for any damages, costs and expenses suffered as a result of such use, misuse or breach.
5.6 Compliance with Laws. Customer’s use of the Software shall comply with all applicable laws, rules and regulations. Without limiting the generality of the foregoing, Customer acknowledges that the use of the Software by Customer and its Affiliates and of any technical data related thereto may be subject to export control laws and regulations imposed by Canada or other governmental authorities. Customer shall comply with any such laws and regulations on the export and re-export of the Software (including technical data and any related information and Documentation.
6.1 Fees. In consideration of the licenses granted and Subscription Services provided under this Agreement, Customer shall pay the fees as set forth in the Order Form(s) (the “Fees”) and in accordance with the Subscription Terms.
6.2 Price Increase. BidBow reserves the right to increase the Fees at the end of the Initial Term or any Renewal Term, provided that such increase shall not exceed 5% of the fees applicable during the immediately preceding Initial Term or Renewal Term, unless the pricing in the Initial Term or preceding Renewal Term was designated as promotional, discounted or one-time. BidBow shall notify Customer of any such price increase at least 30 days before it comes into effect. In addition, from time to time BidBow may make additional functionalities available with the Software, for which it may then increase the applicable subscription Fee in addition to other increases specified in this paragraph.
6.3 Taxes. The fees and costs set forth in this Agreement do not include any applicable sales, use, value added, property, excise or any other taxes or duties of any nature whatsoever. BidBow shall invoice Customer for any applicable taxes in relation to the Order Form(s) at check-out. If Customer is required to pay any withholding tax, charge or levy in respect of any payments due to BidBow hereunder, Customer agrees to gross up payments actually made such that BidBow shall receive sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy.
6.4 Other Charges and Fees. BidBow is not responsible for any bank or other fees or charges associated with any payments made by Customer to BidBow, including interest charges, overdraft charges, wire transfer fees, service fees or other fees resulting from payments made by Customer. Currency exchange settlements will be based on agreements between Customer and its bank or between Customer and the provider of Customer’s credit card.
6.5 Payment Terms.
(a) Unless otherwise set out in an Order Form, fees due to BidBow under this Agreement shall be due and payable by Customer at check-out and, as applicable, on a monthly or yearly basis thereafter or as specified in the Order Form. All Fees are non-refundable. All payments must be made in the full amount, free of any deductions or withholdings and without exercising any right of set-off.
(b) BidBow will notify Customer (i) for Customers who have a monthly subscription, at least 5 days in advance of its expiration, and (ii) for Customers who have a yearly subscription, at least 30 days in advance of its expiration. If Customer has chosen a yearly subscription without paying by credit card, Customer must ensure that the renewal payment reaches BidBow no later than the anniversary of the Start Date.
(c) By placing an order for a monthly subscription, Customer authorizes BidBow to charge Customer’s credit card the monthly amount indicated in the Order Form until either Customer or BidBow terminates this Agreement in accordance with its provisions. By placing an order for a yearly subscription and choosing the credit card payment option, Customer authorizes BidBow to charge Customer’s credit card the yearly amount indicated in the Order Form until either Customer or BidBow terminates this Agreement.
(d) If a scheduled payment fails, or if payment for a renewal is not received on the expiration date of the Initial Term or any Renewal Term, as applicable, the license key(s) attributed to Customer will be suspended; Customer will not be able to use the Software, access the Documentation or receive Subscription Services. BidBow may also suspend access to Manager Accounts and User Accounts. BidBow will notify Customer of a missed or unsuccessful payment. Once Customer has successfully made the payment after receipt of such notice, the subscription will be renewed from the date of successful payment for the period covered by such payment. If no payment is made within five Business Days after receipt of a notice of missed payment, the Agreement will be deemed terminated in accordance with Section 8.3(a), and all license keys issued pursuant to the subscription will be permanently inactivated.
6.6 Interest. In addition to any other rights or remedies of BidBow, any amount not paid by Customer when due shall bear interest at the rate that is the lesser of 1.5% per month or the maximum rate allowable by law.
7. INTELLECTUAL PROPERTY
7.1 BidBow Property. BidBow (or its licensors) retains any and all Intellectual Property Rights in and to: (i) the Software (including any Enhancements); (ii) the Documentation; (iii) all BidBow Trademarks (including, without limitation, the “BidBow” name, trademark and logos); and (iv) all Intellectual Property Rights related to any of the foregoing. Customer will acquire no rights or licenses to any BidBow Intellectual Property unless otherwise expressly provided in this Agreement. Customer will not take any action to jeopardize, limit or interfere in any manner with BidBow’s ownership of or rights in or to the Software or the Documentation.
7.2 Feedback. BidBow shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Software or the Subscription Services or other feedback that Customer (including any of the Users) may propose or make during the term of this Agreement or which Customer (including any of the Users) and BidBow may jointly make during the term of this Agreement (collectively, “Feedback”). Customer hereby irrevocably assigns all right, title and interest in and to the Feedback to BidBow and waives in favour of BidBow, its successors and assigns any and all moral rights that Customer has or may have in the Feedback and agrees to provide BidBow such assistance as it may require to document, perfect, and maintain BidBow’ rights to the Feedback.
7.3 Residuals. For greater certainty and notwithstanding any provision herein to the contrary, BidBow shall be entitled to use the ideas, concepts and techniques relevant to the Subscription Services and any other services provided in connection with this Agreement that are retained in the memories of BidBow’ personnel in other projects and products of BidBow.
7.4 Third Party Software. The use of the Software may require additional Third Party Modules, which are not included in the Software and for which no license is granted under this Agreement. The Customer is responsible for obtaining all licenses to Third Party Modules and for complying with the terms and conditions of any such licenses to Third Party Modules. BidBow does not provide any express or implied warranties of any kind with respect to any Third Party Modules.
8. TERM; TERMINATION
8.1 Term. This Agreement will commence on the date the first payment in respect of the Fees is received by BidBow (the “Start Date”) and will remain in effect for the period of time chosen by Customer on the Order Form (the “Initial Term”), unless terminated earlier pursuant to any of this Agreement’s express provisions.
8.2 Except (i) in the case of a free trial, which will not be renewable or (ii) if otherwise expressly agreed in the applicable Order Form, this Agreement will be automatically renewed for additional successive terms of the same length as the Initial Term (each a “Renewal Term”) unless:
(a) terminated earlier pursuant to any other express provisions of this agreement; or
(b) terminated at any time by Customer by written notice, in which case the subscription will expire at the end of the period covered by the most recent Fee payment, and no refund will be provided by BidBow; or
(c) terminated by BidBow upon written notice at least 30 days prior to the end of the then-current term; in the case of a monthly subscription, any notice sent by BidBow less than 30 days prior to the end of the then-current term will take effect only at the end of the following term, unless otherwise agreed by Customer in writing.
(a) If Customer fails to make payments in respect of its subscription or its renewal, the subscription will be suspended as provided in Section 6.5(d); if payment is not made as provided in Section 6.5(d) within 5 Business Days of the non-payment notice, this Agreement will be deemed terminated.
(b) Each Party may terminate this Agreement at any time: (i) if the other Party fails to perform any of its obligations under this Agreement other than as specified in Section 6.5(d), (a) if such failure is capable of being remedied, and is not remedied within 30 days from written notice thereof having been given to such defaulting Party, or (b) if such failure is not capable of being remedied, including a breach of Section 13.8, then immediately upon written notice of such breach and termination by the non-breaching Party to the breaching Party; or (ii) upon written notice to the other Party, if such other Party takes or is required by any person with proper authority to take, any of the following actions: (a) an assignment, composition or similar act for the benefit of creditors; (b) an attachment or receiving of assets; (c) the filing of a petition for bankruptcy, insolvency or relief of debtors or the institution of any proceedings relating to bankruptcy, insolvency or relief of debtors; (d) committing or threatening to commit any act of bankruptcy; or (e) a winding-up, liquidation or dissolution of the business pursuant to an order of a court of competent jurisdiction.
8.4 Recourse. The termination of this Agreement for any reason whatsoever will in no way affect either Party’s rights and recourse against the other Party, at law or in equity, for damages for failure to discharge an obligation under this Agreement.
8.5 Effect of Termination. Upon expiry or termination of this Agreement:
(a) all rights, licenses and authorizations granted to the Customer hereunder will immediately terminate and Customer shall immediately cease all use of and other activities with respect to the Software and Documentation; BidBow shall inactivate all active license keys linked to Customer’s account;
(b) BidBow will cease providing Subscription Services to Customer, and may suspend or terminate access to the Manager Account and User Accounts;
(c) Customer shall cease using and destroy all copies of the Software and Documentation, and permanently erase or cause to be erased from its and its Users' computer systems, files, and storage media all copies of the Software and Documentation; and
(d) each Party to the extent it is a Recipient of Confidential Information hereunder shall promptly destroy such Confidential Information and all copies thereof under the possession or control of the Recipient, the whole in compliance with Section 12.5.
8.6 Surviving Provisions. Sections 1, 7, 8.4, 8.5, 8.6, and 9 to 13 shall survive any termination or expiration of this Agreement.
9. LIMITED WARRANTIES AND DISCLAIMER OF WARRANTIES
9.1 Limited Warranty. Solely with respect to Software and Documentation for which BidBow receives Fees, BidBow represents and warrants to Customer that:
(a) Software: Upon delivery to Customer, the Software shall be free of viruses;
(b) Rights: (i) subject to Third Party Modules licensed directly to Customer, if any, in connection with the use of the Software, it has all necessary rights to the Software to grant Customer the licenses granted hereunder and (ii) to its reasonable knowledge, any license granted hereunder for the Software is not granted in breach or violation of any third party Intellectual Property Right; and
(c) Services: (i) BidBow, its employees and its subcontractors have the necessary knowledge, experience, and skills to perform the Subscription Services; (ii) BidBow has and/or will acquire and maintain all licenses and permits required of them in order to perform the Subscription Services; and (iii) the Subscription Services will be performed in a competent and professional manner.
(d) The foregoing warranties do not apply, and BidBow strictly disclaims all conditions and warranties with respect to any Third Party Modules or other third party materials.
9.2 Remedy. BidBow’s sole liability, and Customer’s sole and exclusive remedy, for any breach of the limited warranties set forth in Section 9.1 shall be, in BidBow’s sole discretion: (i) replacement of the Customer’s defective Software; or (ii) advising the Customer as to how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) if the above remedies are impracticable, a refund of the Fees paid by the Customer for the Software. If BidBow replaces the Software, the warranty will continue to run from the initial date specified on the Order Form and not from Customer's receipt of the repair or replacement.
9.3 Demonstration Data. The Software and Documentation contain a demonstration data set provided by BidBow solely for demonstration and training purposes. This data set does not reflect conditions in any market and is provided strictly on an “as-is” basis. BidBow does not recommend or endorse using this data set to estimate any construction projects.
9.4 Warranty Exclusions. Notwithstanding any other provisions of this Agreement to the contrary, the warranties set forth in Section 9.1 will not apply and will become null and void if Customer breaches any provision of this Agreement, or if Customer, any User, or any other person provided access to the Software by Customer or any User, whether or not in violation of this Agreement:
(a) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by BidBow in writing;
(b) modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or
(c) misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by BidBow in writing.
9.5 Warranty Disclaimers. EXCEPT AS SET OUT IN SECTION 9.1 AND LIMITED BY SECTIONS 9.2, 9.3 AND 9.4, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIDBOW EXPRESSLY DISCLAIMS ON ITS BEHALF AND ON BEHALF OF ITS AFFILIATES, AND ITS AND THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS, AGENTS AND SUBCONTRACTORS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS EXPRESS, LEGAL OR IMPLIED NOT CONTAINED HEREIN, INCLUDING REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, ABSENCE OF OPEN SOURCE ELEMENTS AND NON-INFRINGEMENT, OR WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, USAGE OR TRADE PRACTICE. AMONG OTHERS, BIDBOW DOES NOT REPRESENT OR WARRANTY AND EXPRESSLY DISCLAIMS THAT: (I) THE SOFTWARE AND THE SUBSCRIPTION SERVICES WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS OR ACHIEVE THE INTENDED RESULTS; (II) THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; (III) ALL PROGRAMMING ERRORS CAN BE CORRECTED OR FOUND IN ORDER TO BE CORRECTED; (IV) THE SOFTWARE AND SUBSCRIPTION SERVICES WILL BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION.
10. LIMITATION OF LIABILITY
10.1 Claims for Infringement. If all or any portion of the Software or the Documentation is, in BidBow’ opinion, likely to or otherwise does become the subject of a claim for infringement of any Intellectual Property Rights, BidBow may, at its option and its sole cost and expense, either: (i) procure in favour of Customer the right to use the same as contemplated herein, (ii) modify the same to become noninfringing provided that any such modification does not materially impair the ability of the Software or the Documentation, or any part thereof to conform to and perform in accordance with the specifications therefor or the intended use of the Software; or (iii) replace the infringing part of the Software or the Documentation with compatible, feature and functionally equivalent, and non-infringing products or documentation, as the case may be. If in BidBow’ reasonable opinion it is not commercially reasonable for it to comply with any of (i), (ii) or (iii) above, it may upon written notice to Customer, terminate this Agreement. The remedies set forth in this Section 10.1 are BidBow’s sole obligations and Customer’s sole remedy in the event of a potential infringement or a claim for infringement relating to the Software or the Documentation.
10.2 Exclusion of Certain Damages. To the fullest extent permitted under applicable law, BidBow shall not be liable and assumes no responsibility for any loss or damages arising from or in connection with (i) the modification or alteration in any manner by Customer of any part of the Software; (ii) the use of any third party software, services or products not developed or provided by BidBow; or (iii) failure of Customer to meet its obligation hereunder to provide in a timely manner any information, access or assistance to BidBow as required hereunder or as BidBow requests in order to meet its obligations.
10.3 Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR PAYMENTS DUE TO BIDBOW PURSUANT TO ARTICLE 6 HEREOF, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS, AGENTS OR SUBCONTRACTORS: (I) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXTRAORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, LOSS OF USE, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS, ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ITS SCHEDULES AND ALL RELATED ORDER FORMS), OR CAUSED BY ANY OF THE SUBSCRIPTION SERVICES, OR THE USE, MISUSE OR INABILITY TO USE THE SOFTWARE OR THE DOCUMENTATION, EVEN IF BIDBOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR UNDER ANY OTHER LEGAL THEORY.
10.4 Amount Limitation. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF BIDBOW AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, FOR CLAIMS BY CUSTOMER OR ANY OTHER PERSON ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO BIDBOW PURSUANT TO THIS AGREEMENT FOR THE 12 MONTH PERIOD PRECEDING THE EVENT FROM WHICH THE LIABILTY ARISES, IN RESPECT OF THE SOFTWARE OR SERVICES THAT ARE THE SUBJECT OF THE CLAIM.
10.5 Acknowledgement and Allocation of Risk. The limitations set forth in Sections 10.1, 10.2, 10.3 and 10.4 shall apply even if the Customer’s remedies under this agreement fail of their essential purpose. Customer acknowledges that BidBow’s pricing reflects the allocation of risk under this Agreement and the limitations of liability specified herein.
11. COLLECTION AND USE OF INFORMATION
11.1 Customer acknowledges that BidBow may, directly or indirectly through the services of third parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through:
(a) the provision of the Subscription Services; and
(b) security measures included in the Software as described in Section 3.2.
11.2 Customer agrees that BidBow may use such information for any purpose related to any use of the Software by Customer or on Customer's equipment, including but not limited to:
(a) improving the Subscription Services or the performance of the Software, or developing Enhancements; and
(b) verifying Customer's compliance with the terms of this Agreement and enforcing BidBow's rights, including all Intellectual Property Rights in and to the Software.
12.1 Obligation of Confidentiality. The Party (“Recipient”) receiving from the other Party (the “Discloser”) any Confidential Information of Discloser agrees to treat the Confidential Information as confidential to and as the property of Discloser (or of Discloser’s licensors or other applicable third parties) and to use the same degree of care which it uses with respect to its own information of like nature which, in any case, will not be less than a reasonable standard of care, to prevent disclosure of the Confidential Information. Recipient shall not disclose, allow access to, transmit or transfer Discloser’s Confidential Information to a third party without Discloser’s prior written consent; provided, however, that Recipient may disclose Confidential Information to those of its Affiliates, employees, consultants and subcontractors (including, without limitation, its legal counsel and advisors) who have a need to know the Confidential Information for the purpose of this Agreement, provided such parties are bound by an obligation to treat Confidential Information in a manner no less stringent than required by this Agreement. Recipient remains liable and responsible for any breach of the terms of this Section 12.1 made by such Affiliates, employees, consultants or subcontractors (including for greater certainty, in the case of Customer, the Users). For greater clarity, any disclosure of Confidential Information permitted by Section 13.2 will not constitute a breach of this Section 12.1.
12.2 Use of Confidential Information. Recipient will use the Confidential Information only for the purposes contemplated or intended under this Agreement or of performing its obligations hereunder. For greater certainty, except as contemplated or intended under this Agreement, Recipient shall not (i) use any of the Confidential Information to compete, directly or indirectly, against Discloser’s business, products or services; (ii) use Discloser’s Confidential Information in any manner which might be detrimental to Discloser; or (iii) allow any third party to do any of the foregoing.
12.3 Exceptions. The restrictions imposed by this Section 12.1 shall not apply to the disclosure of a portion of Confidential Information which (i) is now, or which hereafter, through no act or failure to act on the part of Recipient, becomes generally known or available to the public without breach of this Agreement; (ii) is known to Recipient at the time of disclosure of such Confidential Information provided that Recipient can satisfactorily demonstrate such prior knowledge by appropriate written records antedating the disclosure and that such knowledge was not gained from third parties through breach of secrecy; (iii) is hereafter furnished to Recipient in good faith by a third party without breach by such third party, either directly or indirectly, of an obligation of secrecy to Discloser; or (iv) is approved for such use or disclosure by written authorization of Discloser.
12.4 Legal Disclosure. If Recipient receives a request or is required by law to disclose all or any part of the information contained in Discloser’s Confidential Information, Recipient shall, to the extent permitted by law (i) immediately notify Discloser of the existence of and the terms and circumstances surrounding the request or requirement, (ii) consult with Discloser on the advisability of taking legally available steps to resist or narrow the request or lawfully avoid the requirement, and (iii) at Discloser’s request and cost, take all necessary steps to seek a protective order or other appropriate remedy. If Discloser waives compliance or if the Recipient, after providing the notice and assistance required under this Section 12.4, remains required by applicable law or by a competent authority to disclose any Confidential Information, Recipient shall disclose only that portion of the Confidential Information that Recipient is legally required to disclose and, on the Discloser’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
12.5 Return; Destruction. Upon request of Discloser, Recipient shall immediately return to Discloser or delete in its entirety all Confidential Information and all copies thereof in any form whatsoever under the power or control of Recipient, and delete Confidential Information from all of its retrieval systems and databases, and provide a certificate of a senior officer of Recipient attesting to such return or destruction. Notwithstanding the above, Recipient shall not be required to destroy any computer files that are (i) created during automatic system back-ups or (ii) maintained in accordance with record retention policies, so long as Confidential Information is stored in accordance with secure mechanisms. For greater certainty, the return or destruction of Confidential Information does not modify or relieve Recipient from its obligations hereunder.
12.6 Injunctive Relief. Recipient acknowledges and agrees that due to the unique nature of Discloser’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Recipient or third parties to unfairly compete with Discloser resulting in irreparable harm to Discloser, and therefore, that upon any such breach or any threat thereof, in addition to whatever remedies it might have in law, equity or otherwise, Discloser shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.
12.7 Survival. The obligations of the Parties under this Section 12 will commence on the Start Date, and shall survive for 3 years after the termination of this Agreement.
13. GENERAL PROVISIONS
13.1 Independent Contractor. This is an agreement between separate legal entities and neither Party is the agent or employee of the other for any purpose whatsoever. The Parties do not intend to create a partnership or joint venture between themselves. Neither Party shall have the right to bind the other to any agreement or to incur any obligation or liability on behalf of the other Party. In no circumstances shall any of BidBow’s employees, subcontractors or agents be or be deemed to be employees, subcontractors or agents of Customer.
13.2 Publicity. Except in any proceeding to enforce the provisions of this Agreement or except as otherwise required by law, neither Party shall publicize or disclose to any third party the existence or provisions of this Agreement or any of the fees, terms or conditions herein, without the prior written consent of the other Party. Notwithstanding the foregoing, Customer acknowledges and agrees that BidBow may mention, in its corporate brochures, marketing material, press releases and website, that Customer is a client of BidBow and uses the Software. In that regard, Customer agrees that BidBow may use the corporate names and logos of Customer, subject to applicable Customer logo and similar policies.
13.3 Subcontract. BidBow may subcontract or delegate any of or all of its obligations under this Agreement to any third party.
13.4 Currency. Except as otherwise expressly provided in an Order Form, all amounts referred to in this Agreement and the Order Form(s) are stated in US dollars.
13.5 Entire Agreement. This Agreement (including the Subscription Terms, its Schedules and all related Order Form(s), which form an integral part hereof), constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous agreements or representations or warranties, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorised representative of each Party.
13.6 Standard Forms. Customer acknowledges and agrees that nothing in Customer purchase orders or any documents submitted or provided by Customer in connection with this Agreement or any Order Forms shall be construed to modify, amend or supplement the terms of this Agreement, its Schedules or any Order Forms.
13.7 Order of Precedence. In the event of any inconsistencies between the provisions set forth in this software license agreement or the Subscription Terms and the provisions of an Order Form, the provisions of the Order Form shall prevail solely to the extent of such inconsistency.
13.8 Assignment; Change of Control. Customer may not assign, delegate or otherwise transfer the Software or Documentation, this Agreement (including any related Order Form) or any of its rights or obligations under this Agreement without BidBow’s prior written consent. For the purposes hereof, a Change of Control of Customer will be deemed to result in an assignment of this Agreement. Notwithstanding the foregoing, provided that Customer is in compliance with this Agreement, Customer may upon 30 days’ advance written notice to BidBow (a) assign all of Customer’s rights and obligations under this Agreement (including any related Order Form) to an existing Affiliate, solely in connection with an internal restructuring, or to a purchaser of all or substantially all of the assets of Customer, (b) undergo a Change of Control, in which case the person now Controlling Customer shall be deemed to be an assignee of Customer; provided that in each such case, the assignee or deemed assignee (i) agrees to comply with all of Customer’s obligations under this Agreement evidenced by executing such documentation as BidBow reasonably requires to effectuate such assignment or assume such obligations and (ii) is not, in BidBow’s sole opinion, a competitor of BidBow and does not otherwise pose a threat to BidBow’s Intellectual Property Rights. Any assignment, delegation or transfer which violates the foregoing will be void, and any Change of Control which violates the foregoing will give BidBow the right to immediately terminate this Agreement as specified in Section 8.3(b).
13.9 Successors and Assigns. All obligations set forth in this Agreement will bind and enure to the benefit of the respective successors and permitted assigns of the Parties.
13.10 Severability. If any of the provisions contained in this Agreement are found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not be in any way affected or impaired hereby.
13.11 Waiver. The failure of a Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or of the right of such Party to enforce such provision and every other provision.
13.12 Notices. All notices and communications required to be sent hereunder will be in writing and transmitted as provided in this Section 13.12. Each Party hereby authorizes the other Party to send all notices and communications in writing by electronic mail. Such notices will be sent (i) to Customer at the email address associated with the Manager Account, and (ii) to BidBow at the following email: firstname.lastname@example.org. Notices sent by electronic mail will be deemed received on the date of transmission if a Business Day or, if not a Business Day or after 5:00 p.m. on the date of transmission, on the next following Business Day. Notices may also be sent by personal delivery by a nationally recognized courier service (a) to Customer, to the person designated by Customer in the Order Form and at the address indicated by Customer in the Order Form, and (b) to BidBow, to Hadeel Dabbagh at 25 De Sauverny, Candiac, QC, J5R 0B9, Canada; such notices will be deemed to have been received at the time of delivery.
13.13 Governing Law; Jurisdiction. This Agreement will be governed by, interpreted and construed in accordance with the laws of the Province of Québec, Canada and the laws of Canada applicable therein, other than rules governing conflicts of laws. Any unresolved controversy or claim arising out of or relating to this Agreement, except as (i) otherwise provided in this Agreement, or (ii) any such controversies or claims arising out of either Party’s intellectual property rights or Confidential Information for which a provisional remedy or equitable relief is sought, shall be submitted to arbitration by one arbitrator mutually agreed upon by the Parties, and if no agreement can be reached within 30 days after names of potential arbitrators have been proposed by the ADR Institute of Canada (the “ADRIC”), then by one arbitrator having reasonable experience in commercial agreements of the type provided for in this Agreement and who is chosen by the ADRIC. The arbitration shall take place in the English language in Montreal, Canada, in accordance with the ADRIC rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. The prevailing Party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which such Party may be entitled.
13.14 Language. The Parties acknowledge that they have required that this Agreement, as well as all documents, notices and legal proceedings executed, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English. Les parties reconnaissent avoir exigé la rédaction en anglais de la présente convention, ainsi que de tous documents, avis et procédures judiciaires exécutés, donnés ou intentés, directement ou indirectement, à la suite de ou relativement à la présente convention.