This License Agreement (the ‘’Agreement’’) is between you ( ‘’You’’, “Your” or ‘’Customer’’) and CGI Information Systems and Management Consultants Inc. and its Affiliates (collectively referred to as “CGI”) from which you are procuring the Software (defined below) and purchased through Microsoft App Source or Azure Marketplace (collectively referred to as ‘’Marketplace’’) effective as of (insert effective date) (the ‘’Effective Date’’).
You represent and warrant that you have the authority to accept this Agreement, and you also agree to be bound by its terms. This Agreement applies to all Orders entered into under this Agreement. Capitalized terms have the meanings given under "Definitions."
1. INTERPRETATION
1.1 Definitions. As used in this Agreement, the following terms have the following meanings:
(a) “Affiliates”: means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such person. For the purposed of this definition, “control” when used with respect to a person means the power to direct the management and policies of the person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
(b) “Business Day” means a day other than Saturday, Sunday and any day on which the Toronto Stock Exchange is closed;
(c) “Confidential Information” means any and all data or information including specifications, documents, correspondence, research, software, trade secrets, discoveries, know-how, designs, drawings, product information, technical information and all information concerning the operations, affairs and businesses of a Party, the financial affairs of a Party and the relations of a Party with its customers, employees and service providers (including customer lists, customer information, account information, consumer markets, sales figures and marketing plans), and any such information of customers, or affiliates of a Party;
(d) “Disclosing Party” means the Party sharing its Confidential Information with the other Party;
(e) “Dispute Resolution Procedure” means the procedure set out in Section 15.2;
(f) “Documentation” means the then-current documentation published by NetApp on https://www.netapp.com/ relating to the description, operation and use of the Software, including technical program and interface documentation, user manuals, operating instructions and release notes
(g) “Force Majeure Event” means causes beyond the reasonable control of a Party, including, but not limited to, fire, strike, war, riots, acts of terrorism and/or of a public enemy, acts of any civil or military authority, acts of God, floods, unusually severe weather, pandemic, epidemics or quarantine restrictions, public utility failure or service fluctuation, judicial action and acts and failures to act by governmental authorities;
(h) “Losses” means, subject to the limitations set forth in Section 10, all damages, losses, liabilities, fines and expenses finally awarded to the Indemnitee by a court of competent jurisdiction;
(i) “NetApp” means NetApp Inc. or the NetApp entity or third party that owns or licenses the Software;
(j) "Open Source Software” means third party software that is openly and freely licensed under the terms of a public license designated by the third party.
(k) "Orders" means an ordering document used to transact the Software via the Marketplace;
(l) “Parties” means the Customer and CGI; and “Party” means any one of them as the context suggests;
(m) “Personal Information” means information which is (i) about an identifiable individual, including information that either Party can associate with, or relate back to, an identifiable individual, however, does not include the name, title or business address or telephone number of an employee of an organization; and (ii) is disclosed or transferred by Customer to CGI pursuant to this Agreement or is otherwise collected or compiled by CGI in the performance of its obligations under this Agreement, or such other definition as prescribed by applicable privacy laws;
(n) “Primary Contact” means an employee or consultant of a Party to serve as their ‘project manager’ or ‘primary services contact
(o) “Representative” has the meaning set out in Section 5.1;
(p) “Receiving Party” means the Party receiving Confidential Information of the other Party;
(q) "Software” means the NetApp branded software in object code format including, as applicable operating system, protocols, firmware, backup and recovery, disaster recovery, storage efficiency and management software, as well as any other software, intellectual property, solutions or solution components, or other materials or information originating from or otherwise produced or made available by NetApp.
(r) “Term” has the meaning set out in Section 4.1;
(s) ”Third Party Claims” means claims made against Indemnitee (as defined below) by its customers, suppliers or other third parties; and’
(t) “Third Party Materials” means third party items such as products or services, hardware, or licenses for third party software.
1.2 Gender, Number. In this Agreement, words importing the singular include the plural and vice versa, and words importing gender include all genders.
1.3 Currency. All references to money amounts herein, unless otherwise specified, shall be in the Canadian currency.
1.4 Article and Section Headings. The insertion of headings and the division of this Agreement into Articles and Sections are for convenience of reference only and shall not affect the interpretation hereof.
1.5 Inclusion. Where the word “including” or “includes” is used in this Agreement it means “including (or includes) without limitation”.
1.6 Documents Priority. If there is a conflict or inconsistency between the terms and conditions set forth herein and any of the following documents, the following descending order of priority will apply to the extent of such conflict or inconsistency:
(a) these Agreement terms and conditions, and ;
(b) The Order
2. LICENSE TO SOFTWARE
2.1 License Grant: The Software is licensed and not sold and, is subject to the terms and conditions of this Agreement and your payment of the applicable fees.
CGI is only a reseller of the Software and not the manufacturer and does not, including without limitation, control its development, operation, features, security policies and control, or delivery. Customer further acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement, all of the Customer’s rights, remedies, warranties, terms and conditions relating to the performance and non-performance of the Software are set out in and governed exclusively by the NetApp End User License Agreement (the “EULA”). These rights and remedies are subject to the limitations of liability set out in the EULA. Customer agrees that the terms and conditions of the EULA between the Customer and NetApp shall govern the use of the Software. The EULA can be found at the following link: https://www.netapp.com/how-to-buy/sales-terms-and-conditions/additional-terms/end-user-license-agreement/.
Customer agrees and acknowledges that the Software is delivered pursuant to NetApp’s terms of business that can be found at the following link: hhtp://netapp.com/us/how-to-buy/stc.html.
2.2 License Restrictions.
You must comply with the EULA terms at all times when using the Software and Documentation. You will not, nor will You allow anyone else to:
a) use the Software in breach or excess of any limitations (e.g., the types, quantities, user limits, time limits, capacity limits) prescribed by NetApp and other usage attributes related to Your Software license;
b) reverse-engineer, decompile or disassemble the Software or otherwise reduce it to human-readable format except to the extent required for
interoperability purposes under applicable law or as expressly permitted in Open Source Software licenses;
c) remove or conceal any Software identification, proprietary, intellectual property or other notices in the Software or Documentation;
d) use the Software or Documentation to perform services for third parties in a service bureau, managed services, commercial hosting services or similar environment, unless otherwise agreed to in writing by NetApp;
e) assign or otherwise transfer, in whole or in part, the Software or Documentation licenses to another party or Controller-based licenses to a
different storage controller, unless otherwise agreed in writing by NetApp;
f) install Controller-based licenses on or use them with, third party hardware or any second-hand or grey market hardware not purchased by You from NetApp or from CGI;
g) modify, adapt or create a derivative work of the Software or Documentation;
h) publish or provide any Software benchmark or comparison test results; or
i) use the Software for any benchmarking or competitive purposes or activities, including but not limited to, developing similar or competing
products or services.
2.3 Support Services: Customer agrees and acknowledges that no support of any type or, any service level availability will be made provided or offered by CGI to Customer under this Agreement
2.4 Software Updates: Customer agrees and acknowledges that no updates to the Software will be provided by CGI to Customer under this Agreement.
2.5 Professional Services: Customer agrees and acknowledges that there are no professional services being provided or offered by CGI to Customer under this Agreement.
2.6 Hardware: Customer agrees and acknowledges that there will not be any hardware being supplied or offered by CGI to Customer under this Agreement.
3. PRICING AND PAYMENT
3.1 FEES: Customer acknowledges and agrees that Microsoft Inc. (“Microsoft”) will issue an invoice to Customer for payment of the Software under this Agreement and, further agrees that payment for the Software will be made to Microsoft as an intermediary, who has agreed to remit said payment to CGI. In the event that CGI does not receive payment from Microsoft within the agreed-upon time frame for whatever reason, CGI reserves the right to invoice Customer directly for any outstanding amounts and request payment. If Customer fails to pay any undisputed amount when due and does not cure within ten (10) Business Days following written notice, CGI may suspend Customer’s access to the Software until such amounts are paid. Customer agrees that if payment is not received from either Microsoft or the Customer, CGI reserves the right to suspend the Software (and/or Customer’s access to the Software) under the Agreement until payment has been received, without otherwise affecting any other rights or remedies CGI may be entitled to under the Agreement. Suspension will not relieve Customer of its payment obligations.
Notwithstanding any communication or agreement entered into between Microsoft and the Customer, no rights or remedies of CGI under the Agreement will be waived except through a further written agreement executed between Customer and CGI. CGI will not be liable to Customer or any third party for any liabilities, damages, or expenses arising from or relating to a suspension of the Software services in accordance with this Section. Suspension of the Software will not release Customer of its payment obligations hereunder.
4. TERM; TERMINATION
4.1 Term.
(a) Agreement Term. This Agreement is effective as of the Effective Date and will continue (the “Term”) unless terminated earlier in accordance with this Article 4.
4.2 Termination for Cause. CGI may terminate this Agreement in the event that the Customer is in material breach of its obligations hereunder and such breach is not cured within thirty (30) days (or such longer period as is reasonably required and agreed to by the Parties) of the defaulting Party's receipt of written notice of such default.
4.3 Termination for Convenience. CGI may terminate this Agreement for convenience at any time by giving Customer 30 days prior written notice. Termination for convenience does not entitle Customer to any form of compensation. Notwithstanding the foregoing, CGI may also terminate this Agreement anytime upon termination of its agreement with Microsoft.
4.4 Bankruptcy. CGI reserves the right to terminate the Agreement if Customer ceases to operate in the normal course of its business; seeks protection under bankruptcy laws, becomes insolvent or bankrupt, makes an assignment for the benefit of creditors, proceedings are instituted by or against the Customer seeking relief, reorganization or rearrangement under any laws relative to insolvency, and, in the case of a proceeding instituted against the Customer ,such proceeding has not been dismissed or stayed within 30 days; a receiver, liquidator or trustee is appointed in respect of any property or assets of the Customer and such appointment has not been terminated within 30 days.
5. CONFIDENTIALITY.
5.1 A Party may, from time to time, acting as the Disclosing Party, disclose its Confidential Information to the other Party, acting as the Receiving Party, relating to the Disclosing Party’s business and affairs. Such Confidential Information will be clearly designated in writing as confidential, or if intangible or verbally disclosed, identified as being confidential promptly thereafter. Notwithstanding the foregoing, any unmarked information disclosed by the Disclosing Party shall be deemed to be “Confidential Information” hereunder, provided it is reasonable for the Receiving Party, taking into account the circumstances surrounding the disclosure or the nature of the information itself, to assume that such information is confidential. The Receiving Party will not disclose Confidential Information of the Disclosing Party to any third party, other than to its employees and subcontractors (each a “Representative”), without the express written consent of the Disclosing Party, nor make use of the Disclosing Party’s Confidential Information other than in the performance of this Agreement; any third parties to whom Confidential Information is disclosed as authorized hereunder must first execute an agreement containing provisions substantially similar to those set out in this Section. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its Representatives on a “need to know basis”, provided that such employee agrees to maintain the confidentiality thereof in accordance substantially with the terms of this Section. The Receiving Party will use at least the same degree of care to avoid disclosure of the Disclosing Party’s Confidential Information as it uses with respect to its own Confidential Information, but no less than reasonable care. Notwithstanding the foregoing, "Confidential Information" shall not include information that (i) is within the public domain through no fault of the Receiving Party; (ii) is made available to the Receiving Party from a third party without a similar obligation of confidentiality; (iii) is already known to the Receiving Party; (iv) is independently developed by the Receiving Party; or (v) is required by law or court order to be disclosed. Following the termination of this Agreement for any reason, the Receiving Party agrees, at the Disclosing Party’s option, to return or destroy the Disclosing Party’s Confidential Information and copies thereof which it or its Representatives may have in his or their possession. The foregoing obligations of confidentiality and restricted use will survive for a period of five (5) years from the date of disclosure or the end termination of this Agreement, except in the event of disclosure of trade secrets or personal identifiable information, then the Receiving Party’s confidentiality obligations continue in perpetuity.
5.2 No Publicity. Neither Party will publish or release any advertising, sales promotion, press release, or publicity matter without prior written approval of the other Party.
5.3 Privacy. As applicable for the services, CGI shall comply with all applicable laws regarding the protection of Personal Information transferred to or accessed by CGI, from or on behalf of Customer. Where Customer transfers Personal Information to CGI, CGI shall (i) use the Personal Information only as required to perform its obligations hereunder, (ii) limit access to the Personal Information to those within its organization who need it to perform CGI’s obligations hereunder, (iii) not disclose the Personal Information to any third party, except as necessary to perform the services, as instructed by Customer, and (iv) comply with Customer’s instructions regarding the destruction or return of the Personal Information to Customer. CGI shall promptly notify Customer of any confirmed unauthorized access to or disclosure of Personal Information.
6. INTELLECTUAL PROPERTY RIGHTS. The Software is licensed, not sold to you. It is protected by intellectual property laws and treaties worldwide, and contains trade secrets, in which NetApp and its licensors reserve and retain all rights , title and interest. No right, title or interest to any trademark, service mark, logo or trade name, or other intellectual property of NetApp or its licensors is granted to you.
7. NON-SOLICITATION. CGI and Customer agree that while the services are being performed and for a period of one (1) year following the completion of the services or termination of this Agreement, Customer shall not, without the prior written consent of CGI, directly or indirectly, solicit, induce, employ or subcontract any CGI employee or subcontractor who was involved in the provision of services. In the event that Customer breaches of this Section causes CGI to lose the services of any CGI employee(s) or subcontractor, Customer shall pay to CGI, as liquidated damages and not as a penalty, a sum equal to six (6) times the gross monthly salary of each such CGI employee or sum equal to six (6) months of fees paid to each such subcontractor as applicable, immediately prior to the termination of his/her CGI employment. Nothing herein shall be deemed to prevent an employee, agent or subcontractor of a Party from responding to advertisements for jobs to the public at large from the other Party and the acceptance of offers for such persons responding to the advertisement.
8. WARRANTIES.
8.1 CGI Warranties. CGI gives no warranty, express or implied, including any implied warranty that may arise from the application of law in general or from any particular law or from the specific purchase or use of the Software or may arise from customary trade practices. The warranties, if any, given by NetApp in connection with the Software, are the only warranties provided in respect of the Software and, CGI makes no representation or warranties with respect to the Software. All other warranties or conditions, express or implied, including the implied warranties and conditions of merchantable quality and fitness for a particular purpose and those arising from commercial or trade usage with respect to the Software, are hereby expressly excluded. In the event of any issue arising in connection with the Software, including but not limited to any infringement caused by the Software or any defect in the Software, Customer shall look solely to NetApp to exert any right or seek any remedy in connection therewith.
Customer accepts and agrees that NetApp reserves the right to change the warranty terms. Any changes will only affect order received and accepted by NetApp subsequent to such changes.
9. LIMITATION OF LIABILTIY.
9.1 LIABILITY. CGI shall not have any liability or responsibility whatsoever in connection with the Software. Without limiting the generality of the foregoing, CGI shall not have any obligation to transfer to the Customer any NetApp or other third-party warranties in connection with the Software, nor shall CGI have any obligation to assist the Customer to assert any claim which the Customer would be unable to bring directly against NetApp or any third party in connection with the Software
9.2 DISCLAIMER OF INDIRECT DAMAGES To the maximum extent permitted under applicable law, in no event shall either Party be liable hereunder for any special, indirect, punitive, exemplary, incidental or consequential damages even if such Party has been advised of the possibility thereof, including but not limited to loss of revenue or profits, or failure to realize expected savings, or any damage claimed against either Party by any third party.
10. EXPORT CONTROL
Customer acknowledges that the Software is subject to export and import controls under the laws and regulations of the United States, the European Union and other countries as applicable, and that the Software may include export and import of controlled technologies, including without limitation encryption technology. Customer agrees to comply with such laws and regulations and, in particular, represents and warrants that it: (a) will not, unless authorized by U.S. export licenses or other government authorizations, directly or indirectly import, export, re-export, or divert the Software to (or use the Software in) countries subject to U.S. embargoes or trade sanctions programs; (b) is not a party, nor will it import, export, re-export, or divert to a party, identified on any government export exclusion lists, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists; and (c) will not use the Software or technology for any purposes prohibited by United States law, including without limitation, the development, design, manufacture, or production of nuclear, missile, chemical or biological weaponry, or other weapons of mass destruction. Customer agrees to provide CGI with destination end use and Customer’s information, such as Customer name or business division using the Software) upon Customer’s request. Customer will obtain all required authorizations, permits, or licenses to export, re-export or import, as required. Customer agrees to maintain full, true, and accurate records of exports, re-exports, and transfers of the Software purchased, licensed, deployed or distributed for a minimum of 7 years from date of shipment. Customer acknowledges and agrees to comply with the terms and conditions set forth in this Section.
11. AUDIT
Customer acknowledges and agrees that upon receiving a request from NetApp, that (a) NetApp and its independent accountants may audit Customer and Customer’s subcontractors once annually during regular business hours upon reasonable notice to the Software license terms and restrictions provided in the EULA; and (b) if the audit discloses Software over-usage or any other material non-compliance, the Customer will promptly pay to NetApp any additional license fees notified by NetApp and the reasonable costs of conducting such audit.
12. INDEPENDENT CONTRACTORS.
The relationship of CGI and Customer hereunder shall be solely that of independent contractors. CGI and Customer each acknowledge and agree that neither one shall be the employee, employer, agent, legal representative, partner or joint venturer of the other. Neither CGI nor Customer shall have, or hold itself out as having, the right or authority to assume or create any obligation or responsibility, whether express or implied, on behalf of or in the name of the other. Each of CGI and Customer shall assume complete responsibility for obligations under applicable employers' liability, workmen's compensation, social security, unemployment insurance, occupational safety and health administration laws and other laws with respect to its own employees.
13. FORCE MAJEURE.
neither Party shall be liable for any delays in the performance of any of its obligations hereunder due to a Force Majeure Event. In the event CGI's personnel fail to perform the services because of illness, resignation or Force Majeure Event, CGI shall use commercially reasonable efforts to replace such personnel within a reasonable time, but shall in no event be liable as a result of its inability to do so.
14. NOTICES.
Any notice, direction or other communication given regarding the matters contemplated by this Agreement must be in writing, sent by, courier or by electronic mail, and is deemed to be given and received on the date of delivery by courier or electronic mail if it is a Business Day and the delivery or transmission was made prior to 4:00 p.m. (local time in the place of receipt), and otherwise on the next Business Day. Notices to CGI must be sent to the address stated in the Order. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. CGI may send notices and other information to Customer by email or other electronic form.
15. GOVERNING LAW AND DISPUTES.
15.1 Governing Law. This Agreement shall be subject to and interpreted in accordance with the laws in force in the Province of Ontario without regard to its conflict of laws rules, and the Parties agree to submit to the jurisdiction of the courts thereof in Toronto, Ontario.
15.2 Dispute Resolution. In the event of any such controversy or dispute between the Parties relating to this Agreement, its negotiation, validity, existence, breach, termination, construction or application, or the rights, duties or obligations of any Party to the Agreement, the Parties agree to use the following procedure:
(a) The Parties shall each cause its designated Primary Contact hereunder to attempt to resolve the dispute co-operatively, reasonably and with due diligence. If either such Primary Contact believes that they are unable to resolve the dispute in a timely manner, the dispute shall be referred to a vice-president or equivalent of Customer and a vice-president of CGI. If the dispute remains unresolved for more than fifteen (15) business days after such referral, either of the Parties may refer the matter to arbitration pursuant to (b) below, by providing notice to the other Party in writing. Unless the Parties otherwise agree in writing, all such unresolved disputes shall be resolved by arbitration in accordance with (b) below, provided that if the dispute involves the misuse of one of the Party’s intellectual property rights or confidential information, such Party may take such legal action as it deems appropriate including interim or permanent injunctive relief.
(b) If a particular dispute is to be arbitrated, the Parties, acting reasonably, shall attempt to agree upon a single independent, qualified arbitrator to arbitrate the matter. If within fifteen (15) days after the receipt of written notice to arbitrate, the Parties are unable to agree upon a single independent, qualified arbitrator, then either Party may, upon notice to the other Party, apply to the Ontario superior court of justice for the appointment of a single arbitrator; such arbitration shall be conducted in accordance with the statutory provisions of the Ontario Arbitration Act 1991, as amended or substituted from time to time. The arbitrator shall have the power to award the costs of the arbitration, as the arbitrator deems appropriate. Unless otherwise mutually-agreed between the Parties, the arbitration shall take place in the city of Toronto (which shall be the seat of arbitration) and shall be held in the English language.
(c) The arbitrator may award any remedy for any breach of the Agreement that might be awarded by Ontario courts, except where the remedy for such breach has been expressly limited by the Agreement and provided that the arbitrator shall have no authority to award and excluded damages (or direct damages beyond the limitation of liability) as described in Section 10 hereof. The arbitrator shall have no power to amend the provisions of the Agreement.
(d) The decision of the arbitrator shall be final and judgment upon the decision may be entered into any court of competent jurisdiction. Except where clearly prevented by the matter in dispute, both Parties agree to continue performing their respective obligations under the Agreement while the dispute is being resolved, unless and until such obligations are terminated or expire in accordance with the terms of the Agreement.
16. WAIVER
No delay or failure in exercising any right under this Agreement, or any partial or single exercise of any right, will constitute a waiver of that right or any other rights under this Agreement. No consent to a breach of any express or implied term of this Agreement constitutes a consent to any subsequent breach.
17. SEVERABILITY
If any provision of this Agreement is, or becomes, unenforceable, it will be severed from this Agreement and the remainder of this Agreement will remain in full force and effect.
18. ASSIGNMENT
This Agreement is binding upon and will inure to the benefit of the Parties’ respective successors and assigns. Customer shall not assign this Agreement or any portion thereof without first obtaining the written consent of CGI
19. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement and understanding of the Parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements and understandings relating thereto. No waiver, alteration, modification, or cancellation of any of the provisions of this Agreement shall be binding unless made in writing and signed by the Parties.
20. SURVIVAL
The provisions set forth in Sections 3, 5, 6, 7, 8, 9, 11, 12, 14-21 inclusive shall survive the expiration or termination of this Agreement.
21. LANGUAGE
The Parties have expressly required and mutually agree that this Agreement and all related documents, including notices and other communications, be written exclusively in English. Les parties ont expressément exigé et conviennent mutuellement que la présente convention ainsi que tous les documents qui s'y rattachent, incluant les avis et autres communications, soient rédigés exclusivement en anglais.