2.    LICENSE 

2.1  8AM hereby grants Customer the non-exclusive, non-transferable right to use the Products and corresponding documentation, as further indicated in Appendix 1 (the “License”). As it relates to the Hiring Client, the Agreement begins on the Effective Date above and shall continue for successive one (1) year terms based on the length of the term as defined in the Master Software Subscription Services Agreement, unless sooner terminated (the “Hiring Client Term”). As it relates to the Vendor, the Agreement begins on the Effective Date above and shall continue for a minimum period of one (1) year up to a maximum period of two (2) years, as elected by the Vendor and accepted by 8AM acting reasonably, unless sooner terminated (the “Vendor Term”, the Hiring Client Term and Vendor Term being collectively referred to herein as the “Term”). The Agreement shall automatically renew for each successive year of the Hiring Client Term unless the Hiring Client has provided 8AM with ninety (90) days’ written notice to cancel the Services prior to the expiration of the successive year of the Hiring Client Term for which the Hiring Client desires to terminate for the subsequent year thereof.

2.2      The License is strictly limited to the object code. Rights to the source code are not provided, unless explicitly agreed otherwise in writing.

2.3     Customer does not have the right to copy, duplicate or alter the Products in any way, without the prior written approval of 8AM.  The Customer shall not, directly or indirectly, sell, rent, lease, license, distribute, market or exploit the Products or any of its parts commercially.

2.4     8AM and their Third Party Suppliers shall have access to the Customer information stored by 8AM, and all such data shall remain the property of the Customer with neither 8AM nor any Third Party Suppliers claiming ownership to such data.

2.5     This Agreement cannot be transferred or assigned by the Customer to any third parties (third parties also include holding, affiliated and/or subsidiary companies) or any other entity without the expressed written consent of 8AM which consent may be unreasonably withheld or delayed by 8AM at their sole discretion.

2.6     This Agreement may be transferred or assigned by 8AM to a third party in their sole and unfettered discretion.

2.7     Reverse engineering or de-compilation of the Products by the Customer is not permitted.

3.         REQUIREMENTS OF 8AM

3.1      8AM shall provide Support for Customers in relation to the Products as described in Appendix 2 hereto.

3.2      8AM is not responsible, nor shall they be liable for any Content provided by the Customer.

3.3      8AM shall notify Customer of any new developments or products in relation to the Products.

3.4      8AM agrees to use commercially reasonable efforts to provide Customer with seven (7) days prior written notice of when any Scheduled Downtime is expected to occur during the Term.

4.         CONTENT

4.1   The Customer acknowledges and agrees that the Customer is solely responsible for the Content. 8AM has no obligation or responsibility to review, filter, block or remove Content. 8AM is not responsible for the accuracy or the Content posted within the products, and the Customer agrees to indemnify and hold harmless 8AM for any Content that results in damages, costs or expenses to any third party that is posted within 8AM’s product. The Customer agrees that it shall not post any Content that is unlawful, offensive, harmful, inaccurate, or otherwise inappropriate to any third party. 8AM shall not be liable for any Content provided by the Customer or others.

4.2   The Customer retains its rights to any Content that is submitted, posted or displayed and grants 8AM a non-exclusive, worldwide, sublicensable, royalty-free license to use, host, run, copy, reproduce, process, modify, adapt, translate, publish, transmit, display and distribute the Content solely for the purposes of providing and supporting 8AM’s Services.

4.3   The Vendor consents to 8AM releasing the Vendor Content to the Hiring Client for the Hiring Client’s sole purposes and use and acknowledges that 8AM shall have no obligation or duties to restrict or modify the Vendor Content unless directed to do so in writing by the Vendor. To the extent that the Vendor advises 8AM in writing not to disclose Vendor Content, 8AM shall use commercially reasonable efforts to immediately cease to disclose such Vendor Content. Notwithstanding the within, 8AM retains the right to modify any Vendor Content which is deemed to be inaccurate or erroneous and shall use commercially reasonable efforts to advise the Vendor of such modification in writing.

4.4   The Vendor consents to the storage of the Vendor Content by 8AM and further agrees that it shall comply with all legal requirements regarding the Vendor Content, then applicable, that it shall enforce the terms of this Agreement as against third parties to the extent required by 8AM, that it shall promptly respond to Support requests by 8AM to ensure compliance with the Agreement and that it shall protect the rights of 8AM and the public in general. Furthermore, the Vendor agrees to hold harmless and indemnify 8AM from any actions or causes of action with respect to intellectual property infringement arising from the Vendor Content that is posted by 8AM, including any damages, expenses, costs, or legal fees on a solicitor and his own client basis.

4.5   The Customer consents to, and acknowledges and agrees, that 8AM shall have authority to investigate any and all complaints that are levied, published or otherwise made known to 8AM in relation to any violations arising under this Agreement and that it will assist 8AM in the resolution of such complaints and provide such information as reasonably requested by 8AM from time to time.

4.6   The Vendor acknowledges and agrees that to the extent that the Vendor violates this Agreement due to its failure to provide lawful or accurate information, that 8AM shall have the authority to disclose any and all such information as lawfully requested by any law enforcement agency, regulatory agency with lawful jurisdiction or other third parties whom are entitled to receive such information in accordance with legal process. 8AM shall use its commercially reasonable efforts to advise the Vendor when such requests for information are made, to the extent that they are entitled to under law.

4.7   The Vendor acknowledges and agrees that 8AM shall have the right and authority to store the Vendor Content for a period of ten (10) years following expiration or sooner termination of this Agreement, and that 8AM may disclose such Vendor Content in accordance with Section 4.6, notwithstanding the expiration or sooner termination of this Agreement.

5.         PRICES

5.1      The charges that the Customer must pay to 8AM in relation to the Products is outlined and described in Appendix 1 hereto.

5.2      All prices mentioned in Appendix 1 hereto exclude GST and other such taxes, levies or other such charges. However, the amounts invoiced shall include all such GST and other such taxes, levies or other such charges.

5.3      8AM has the right to change the prices of the Products at their sole discretion. Should 8AM choose to change the prices of the Products, they shall provide Customer with ninety (90) days’ notice written notice before such new prices come into effect. 

6.         PAYMENT OF INVOICES

6.1     8AM shall invoice the Vendor prior to the use of the Products and activation of the Services, and the Vendor shall pay 8AM prior to the use of the Products and Services being made available to the Vendor under this Agreement. Upon payment of the invoice by the Vendor, 8AM shall provide the Products and activation of the Services to the Vendor. Any such invoices or payments shall not be subject to reduction, set-off or abatement in any way whatsoever by Vendor unless 8AM consents in writing to such reduction, set-off or abatement. All invoices and payments thereon are final, and 8AM shall not refund any fees paid hereunder.

6.2      At 8AM’s sole discretion, ninety (90) days prior to the expiry of the Vendor Term, 8AM shall deliver an invoice to the Vendor for a renewal term, subsequent to the Vendor Term, and if payment of the invoice for the renewal term is not received by 8AM prior to the expiry date of the Vendor Term (the “Renewal Payment Date”), the Agreement will be terminated as at the expiry date of the Vendor Term. To the extent that the Vendor makes payment of the invoice renewal term ninety (90) days or later subsequent to the Renewal Payment Date, 8AM reserves the right to charge a renewal fee of $150.00n to any and all future subscriptions by the Vendor for the Products and Services in addition to the fees outlined in Appendix 1 hereto.

6.3      Customer hereby agrees to fully indemnify 8AM for any costs, charges or damages, including legal fees on a full indemnity (solicitor-client) basis resulting from a breach of the terms of this Agreement.

6.4      Until full payment of the invoice has been made by the Customer to 8AM, 8AM shall be entitled to immediately suspend all Services and the use of the Products by the Customer.

6.5      The within remedies in Section 6 shall not operate to in any way restrict the legal remedies or options available to 8AM available at common law or in equity.

6.6      The payment terms regarding the Hiring Client shall be governed by the terms of the Master Software

Subscription and Services Agreement between 8AM and the Hiring Client (the “MSSA”).

7.         ANTICIPATED DELIVERY DATES

7.1      All delivery dates for any Products shall not be binding on 8AM and are merely estimated delivery dates. 8AM shall use reasonable commercial efforts to conform to and abide by anticipated delivery dates. It is clearly understood that stated delivery dates are estimates only and 8AM shall not be liable to Customer for any costs, charges or damages (either direct or non-direct) for any delay or failure to conform to a stated delivery date.

8.         CONFIDENTIALITY

8.1      The parties hereto acknowledge and agree that the Customer may come to learn of certain proprietary information or become knowledgeable in relation to the Products or dealings of 8AM. Any such Confidential Information shall remain the exclusive property of 8AM and/or their Third Party Suppliers and shall not be used by Customer without the express written consent from 8AM or such Third Party Supplier.

8.2      Customer shall not disclose Confidential Information to anyone other than its employees that reasonably require such Confidential Information in their employment role without first obtaining written consent from 8AM. Customer shall notify each of its employees who are given access to Confidential Information that they have an obligation not to disclose Confidential Information and shall take such steps as are reasonably necessary to ensure compliance with this obligation and keep such Confidential Information in strict confidence.

8.3      Customer shall safeguard Confidential Information with reasonable security means at least equivalent to measures that it uses to safeguard its own proprietary information.

8.4      Customer agrees to receive and use Confidential Information solely for purposes related to this Agreement and Customer shall not use Confidential Information for any other purpose, except without the express written prior consent of 8AM.

8.5      By entering into this Agreement or using the Software, Support, Products or Services , Customer and any users agree to the 8AM privacy policy available at https://www.8amsolutions.com to the collection, processing, copying, backup, storage, transfer, security and use of the Content and any users’ data by 8AM and its service providers, in, from and to Canada or other countries or jurisdictions potentially outside of 8AM’s or Customer’s (or any user’s) own jurisdiction as part of the Software, Support, Products or Services . 8AM will implement and maintain security practices as described at https://www.8amsolutions.com. Furthermore, 8AM and Customer agree to comply with any and all laws pertaining to privacy in the Province of Alberta, and Canada, where applicable.

8.6      Within thirty (30) days after the first request of 8AM, Customer shall destroy or return to 8AM all documents containing Confidential Information. All copies of Confidential Information made by Customer shall be returned to 8AM or destroyed at 8AM’s sole direction. If requested, Customer shall certify in writing that it has returned any and all Confidential Information or that it has destroyed same at 8AM’s request.

9.         LIABILITY

9.1      8AM’s maximum liability to Customer shall be limited to compensation for direct damages only and shall be limited to the lesser of:

a.    the actual amount of fees paid by Customer to 8AM in accordance with Appendix 1 of this Agreement for the calendar year in which the damage occurred; or

b.     $1,000.00.

9.2      8AM shall not be liable to Customer in any way, shape or form if Customer changed or altered the Content or Products in any way or in any way breached their obligations for maintaining and not disclosing Confidential Information. The Products are provided by 8AM and accepted by the Customer “as is”. 8AM makes no warranty, express or implied, regarding the fitness of the Products for a particular purpose or that the Products will be suitable or appropriate for the specific requirements of the Customer. 8AM does not warrant that the use of the Products will be uninterrupted and error-free. The Customer accepts that the Products in general are prone to bugs and flaws within an acceptable level as determined in the industry.

8AM’s liability for indirect damage, including consequential damage, loss of profit, loss of savings, mutilated and/or lost data, delays, late delivery of Product, losses, damage through corporate inactivity and/or claims from third parties against Customer, is expressly denied, waived and barred. The Customer expressly acknowledges that use of the Products is at its own risk.

10.     REPRESENTATIONS AND WARRANTIES

The Customer represents and warrants to 8AM, and 8AM is relying on such representations and warranties in entering into this Agreement as follows:

10.1    The Customer has the power and authority to enter into this Agreement;

10.2    The Customer will perform its obligations and duties in compliance with applicable laws;

10.3 The Customer (if an individual) is of the age of majority in the Province of Alberta and the jurisdiction that they are resident in.

10.4 The Software, Support and Services provided by 8AM shall be used solely for legal purposes and shall be used in accordance with all applicable laws;

10.5 The information provided by the Customer to 8AM is truthful, accurate and is not a misrepresentation on the part of the Customer, upon which 8AM is entitled to rely for the purposes of this Agreement and providing the Services;

10.6 The Customer is not a competitor of 8AM, providing services similar or identical to those provided by the Customer to Customers or prospective Customers of 8AM and that they are entering into this Agreement for the sole purpose of using the Software, Support and Services to a third party for strictly business purposes;

10.7 The Vendor Content uploaded by the Vendor is the content of the of the Vendor and is being released to the Hiring Client for the purposes of the Hiring Client whom they are releasing Vendor Content to.

10.8 The Customer acknowledges and agrees that 8AM shall not be liable or responsible to the Customer for any      losses, damages, expenses, costs, data loss or claims arising from Scheduled Downtime, unscheduled Downtime or internet disruptions whether same are within or outside of the control of 8AM (“Disruptions”) and agrees to hold harmless 8AM for any such Disruptions.

11.     FORCE MAJEURE

11.1  No party is obligated to fulfill any obligation if they are prevented from doing so as a result of circumstances, which can be considered beyond their fault or control, and for which a party cannot be held accountable for by law, legal act, or generally accepted practices. The aforementioned circumstances include circumstances that are beyond 8AM’s power as well as business risks of 8AM, these include but are not limited to failure to perform by a supplier of 8AM, the late or non-availability of required information and specifications and/or changes in such information, incorrect functional specification of Products and/or products delivered by a third party, bad weather conditions, fire, explosions, electricity failures, network failures, floods, war, illness, lack of staff, strike or other employment conflicts, accidents, actions by the government, not being able to obtain required licenses and/or permits, lack of materials, theft, traffic disruptions and/or transportation problems.

11.2  When force majeure is of a temporary nature, 8AM has the right to suspend its commitments under this Agreement until the force majeure has ceased to exist without being obliged to any form of damage compensation.

11.3  8AM reserves the right, in the case of force majeure, to collect payment for obligations already fulfilled before force majeure was known or occurred.

11.4  In the event that the force majeure of a party surpasses a two (2) month period, the other party effected by the force majeure has the right to terminate this Agreement without being obliged to any form of damage compensation regarding such termination.

12.     INTELLECTUAL PROPERTY

12.1  All Confidential Information, other intellectual property rights and other rights resulting from all activities carried out by 8AM, regardless of where and when carried out and regardless of whether it concerns the delivery of existing Products or Products to be developed in the future, reside with 8AM and/or their Third Party Supplier. All ownership rights and intellectual property rights in and to the Products and any and all copies thereof are owned by 8AM or its licensors. The License confers no title or ownership in the Products and should not be construed as a sale of any rights in the Products.

12.2  Customer acknowledges that all present and future intellectual property rights, industrial property rights, other rights and the registration and/or application of the foregoing rights and/or similar rights for the whole Term thereof, as applicable, and all renewals or extensions thereof, now or at any time in the future, worldwide at all times shall be and are hereby assigned or will be transferred to 8AM. Such intellectual property rights of 8AM shall extend to any customizations of Products completed by 8AM for the Hiring Client or other services requested by the Customer to 8AM. In the event that there is any inconsistency between the intellectual property rights of 8AM as between this Agreement and the MSSA, the terms of the MSSA shall prevail.

12.3  The Customer is permitted to use the trademarks, trade names and other indications of origin of 8AM for the identification and marketing of the Products when performing its obligations under this Agreement, as long as such is in the interest of 8AM. 8AM is at all times entitled in its sole and unfettered discretion to terminate the rights granted in this clause. 

12.4  The Customer may only use trademarks, trade names and other indicators of origin of 8AM in accordance with the manner as instructed by 8AM and 8AM may immediately upon notice, request the Customer to cease using such trademarks, trade names or other indicators of origin of 8AM in its sole and unfettered discretion.

12.5  The rights granted to the Customer to use trademarks, trade names and other indicators of origin of 8AM will automatically end when this Agreement expires or is sooner terminated.   

13.     DURATION

13.1  This Agreement is effective immediately and shall continue in full force and effect for the Hiring Client Term or Vendor Term, as applicable, unless sooner terminated in accordance with the terms stated herein.

14.     TERMINATION

14.1  Notwithstanding any other provisions herein, any party hereto may terminate this Agreement upon ninety (90) days written notice to 8AM or the Vendor or Hiring Client, where applicable.

14.2  Should the Customer default in any payment obligation, breach the terms of this Agreement or make a petition or assignment in bankruptcy, 8AM shall be entitled to terminate this Agreement effective immediately.

15.     EXPIRATION OR TERMINATION OF LICENSE

15.1  Upon the termination or expiration of this Agreement, the Customer shall be obligated to return all materials, models, samples, designs, parts and Products which the Customer has in its possession and has received from 8AM forthwith.

15.2  Upon the termination or expiration of this Agreement, the Customer shall no longer be able to make use of the Products and the Customer is required, and at its own risk and expense, shall immediately return the Products to 8AM and/or to destroy any copies made thereof in 8AM’s sole discretion.

16.     SEVERANCE

16.1  If one or more terms (or part of a term) of this Agreement are nullified, declared to be nullified, or otherwise not enforceable, such clause shall be severed from this Agreement with the remainder of the clauses in this Agreement remaining in full force and effect.

17.     GENERAL CONDITIONS/APPLICABILITY

17.1  This Agreement constitutes the entire agreement of 8AM and the Vendor concerning the provision of Products to the Vendor by 8AM and supersedes all prior or contemporaneous oral or written agreements concerning this subject. This Agreement is in addition to the MSSA between 8AM and the Hiring Client, and in the event of any inconsistency between this Agreement and the MSSA, the terms of the MSSA shall prevail.

17.2  8AM may revise, update, change, modify, add to, supplement or delete certain terms of this License for security, legal, best practices or regulatory reasons. Such changes will be effective with or without, as applicable, prior notice to the Customer.

17.3  The Appendices to this Agreement are an integral part of the Agreement. If there is a discrepancy between the Agreement and the Appendices, the Agreement shall prevail.

18.     APPLICABLE LAW

18.1  This Agreement shall be governed by the laws of the Province of Alberta, and the federal laws of Canada, where applicable, unless otherwise agreed upon in writing.

Appendices with this agreement:

Appendix 1: PRICING

Appendix 2: SUPPORT LEVELS