SOFTWARE LICENSE AGREEMENT

This Software License Agreement (the "Agreement") is entered into between 2028505 Ontario Ltd. o/a Emergent Technologies ("Licensor") and the firm, corporation, partnership, individual or other legal entity whom licensed the Software or on whose behalf this copy of the Software was licensed (“Customer”).

1. Definitions. In addition to any definitions in the body of this Agreement, the following definitions shall apply to this Agreement:

a. “Files” mean all files in the Software including, without limitation, active, inactive, closed and deleted files.

b. “Order” means a written or electronic quotation, order , invoice or other document from the Licensor, and acknowledge by the Customer, setting out the Software being provided to Customer;

c. “Per File License” means a license to use the Software on an unlimited number of Workstations to process an unlimited or specific number of Files, as indicated on order documentation.

d. "Software" means the computer program indicated on an Order and includes the software, its code, its databases, its libraries and all accompanying data files and documentation, as well as any corrections, bug fixes, enhancements, updates or other modifications to any of the foregoing provided from time to time, and all copies of any of the foregoing.

e. “Workstation” means a physical client computer.

f. “Workstation License” means a license to use one instance of the Software on a specific Workstation.

2. License

a. Grant of License. Pursuant to the terms and conditions of this Agreement, for the term of this Agreement, the Licensor grants the Customer a non-exclusive, non-transferable license to install and use the Software, as identified on an Order, only for Customer's own business, at the Customer site indicated in the applicable Order (“Customer Site”).

b. License Key. The Software is copy-protected. Upon installation, a validation or id number (“Key”), as obtained from the Licensor, must be entered to activate various essential functions within the Software. This Key is valid only for the Workstation for which the Software was originally provided (in the case of a Workstation License) and for the duration of the applicable Software term. If the Software is to be transferred to different Workstation, the Licensor may require verification (either in writing or by way of de-installation code number generated by the Software) that the original copy has been deactivated.

c. Work Station License – Restrictions. In the case of a Workstation License, the Customer, without the Licensor’s prior written consent: (i) will not use or permit instances of Software to be installed on more than one Workstation per licensed copy of the Software; (ii) will not permit any current or future parent, subsidiaries, affiliated entities, related (“Affiliates”) or other third parties to use the Software; (iii) use the Software in the operation of a service bureau; (iv) nor install the Software on a server or for or use by or through other computers or devices connected to the server over an internal or external network.

d. Per File License - Restrictions. In the case of a Per File License, the Customer: (i) will only use each File in relation to the single transaction or entity for which it was originally created; (ii) will not permit any third party other than Affiliates and contractors providing services on behalf of the Customer and its Affiliated to use the Software; and (iii) will create a new File for each estate, will or other record processed using the Software.

e. General Restrictions on Use. Customer shall not: (i) modify, alter, maintain, enhance, disassemble, decompile or reverse engineer the Software; (ii) sell, cede, assign, license, publish, display, distribute, or otherwise transfer the Software or any copy thereof, in whole or in part, to a third party; nor (iii) without Licensor’s prior written consent, use the Software on a Workstation located outside of Canada.

f. Copies. The Customer may, solely to enable it to use the Software, make one archival copy of the Software, provided that archival copy: (i) is not used by the Customer except for archival, recovery or reinstallation purposes; (ii) includes the Licensor's copyright information and any other proprietary notices; and (iii) is stored within Canada. Customer shall have no other right to copy, in whole or in part, the Software.

g. Add-On Modules. The Customer acknowledges that Licensor may, from time to time, develop and offer to the Customer add-on modules for use with the Software. The Customer agrees that any such add-on modules offered to the Customer are not included in the Software unless and until the Customer purchases additional licenses for such add-on modules from the Licensor.

h. Open Source Software. If there is any open source software in the Software, that open source software is licensed under the terms of the license that accompanies such open source software. Nothing in this Agreement limits the Customer’s rights under, or grants Customer rights that supersede, the license terms for such open source software.

i. Discontinuance of Licensing Model. In the event that the Licensor elects to discontinue a licensing model, the Licensor shall provide notice in accordance with the Notice section of this Agreement and the modification shall be deemed or acceptance or rejection by the Customer in accordance with the Modification section of this Agreement.

3. Links.

Some links in the Software may enable you to leave the Software and connect directly to other sites or applications. Such linked sites or applications are independent of the Software and will have other terms and conditions applicable to the use of that site or application that the Customer may be required to agree to in order to take full advantage of certain features of the Software and those sites and applications. The Licensor is not responsible for examining or evaluating, and it does not warrant the offerings of, any of these businesses or individuals or the content of these linked sites. The Licensor does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. The Licensor is providing these links as a convenience and the inclusion of any link does not imply endorsement of the linked site by the Licensor. The Customer should carefully review privacy statements and other conditions of use of these linked sites. The Customer should carefully review privacy statements and other conditions of use of these linked sites. The Customer acknowledge and agree that certain of the content available through the Software may be supplied by third parties resident and/or operating outside Canada and/or may be hosted on computers located outside of Canada.

4. Delivery and Installation. Licensor shall deliver or arrange for delivery by its agent of the Software to Customer's Site indicated in the applicable Order. Customer agrees that it is responsible for acquiring all required computer equipment and required peripherals, as advised by Licensor and set out on the Software’s website, and for their installation at the Customer Site prior to the installation of the Software. The Customer is responsible for installing the Software at the Customer Site and advising the Licensor when installation of the Software has been completed. If the Customer desires that Licensor install the Software, Licensor or its agent may provide such installation services.

5. Professional Services. Should the Customer require any additional services to be provided by the Licensor, such as, but not limited to consulting, custom development, data conversion, project management, installation, training and other services which are not included or provided for herein, such services may be provided to the Customer by the Licensor or its agents at the regular rates for such services as published by and periodically updated by Licensor, subject to such additional terms and conditions as the Licensor may require. Fees for such services are billed monthly in arrears at Licensor’s standard rates. The Licensor hereby reserves the right to change its rates for the provision of such additional services at any time without notice.

6. Fees and Taxes.

a. Fees. In consideration for the license granted and support to be provided by Licensor under this Agreement, the Customer shall, in addition to installation fees or any other fees for professional services, pay the Licensor the Initial Fees and the Annual Subscription Fees as set out below. Fees shall continue to accrue and Customer shall remain obligated to remit payment for all Fees until this Agreement is terminated in accordance with its terms.

b. Initial Fees.

i. Workstation License - The Initial Workstation Fee is the one time amount set out in the applicable Order, and is payable upon execution of the Order.

ii. Per File License - The Initial File Fee is the one time amount related to Files newly added to the Software in the previous calendar month as set out in the applicable Order. For Estate Accounting Software, multi-year trusts archived year over year are only counted as one File and estates with multiple currencies will normally have one File for each currency. Invoices for the Initial File Fee shall be issued at the beginning of each calendar month and shall include a charge for all Files newly added to the Software as of the last day of the previous calendar month and are due and payable monthly in arrears: (1) within thirty (30) days from the receipt of the invoice for same; or (2) where payment by way of credit card has been set up, by charge to such credit card on or about the first of each month.

b. Annual Subscription Fees.

i. Workstation License - If the Customer licenses the Software pursuant to a Workstation License, the Annual Subscription Fee shall be 25% of the Initial Workstation Fee plus 25% of the Initial Workstation Fee any additional or add-on licenses purchased by Customer. The first Annual Subscription Fee is payable in advance upon acceptance of this Agreement and future payments are due annually in advance upon the anniversary of the first invoice date related to the Software.

ii. Per File License: If the Customer licenses Corporate Manager ET Software pursuant a Per File License, the Annual Subscription Fee shall be calculated on a per Active File basis based on the rates set out in the applicable Order, but subject to the following:

1. “Active File” means all existing or added files within Corporate Manager which have a File status other than "Closed". Active Files shall be determined at the beginning of each calendar month and include only Active Files which had a fiscal year end or were newly added to the Software in the previous calendar month. For example, if the Customer added two (2) new Active Files to the Software during the month of March and had four (4) existing Active Files in the Software which had a fiscal year end in March, the invoice generated by the Software at the beginning of April will be for a total of six (6) Active Files. Similarly, if a newly added Active File is added on March 14th and the Active File has a fiscal year end of March 30th, the File will be charged twice; once for the Active File that was added on March 14th to cover the period the Active File was added to the Software until the fiscal year end (in this example being March 30th), and a second charge covering the upcoming fiscal period. As the fiscal year end field in the Software is not mandatory, any File which does not have a fiscal year end date entered will be considered to have a December 31 fiscal year end date and charges for these Active Files will appear on the January invoice. The calculation of Active Files remains the same even if the Customer elects to use the month of incorporation or the "Annuals Due Date" field instead of the Fiscal Year End field described above.

2. Invoices for the Annual Subscription Fees shall be issued at the beginning of each calendar month and shall include a charge for all Active Files in the Software as of the last day of the previous calendar month and are due and payable monthly in advance: (i) within thirty (30) days from the receipt of an invoice; or (ii) where payment by way of credit card has been set up, by charge to such credit card on or about the first of each month

b. Increases. Licensor has the right to increase Fees on an annual basis with such increase to be effective at the commencement of the next year of the Software license term. Notice of Fee changes will be provided to Customer at least ninety (90) days prior to the end of the existing Software license term year in accordance with the Notice section of this Agreement and the modification shall be deemed or acceptance or rejection by the Customer in accordance with the Modification section of this Agreement.

c. Taxes & Financing Charges. The Customer shall, in addition to the other amounts payable under this Agreement, pay all sales, use, value added, financing charges or other taxes, federal, provincial or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, other than taxes on the income or profits of the Licensor.

7. Ownership. The Customer acknowledges and agrees that the Licensor owns and shall continue to own all title, ownership and intellectual and proprietary rights, including any patents, copyrights, trade secrets, trademarks and any other proprietary rights, in and to the Software and all copies of the Software. All bug reports, ideas for enhancement and other feedback provided by the Customer to the Licensor will be the property of the Licensor, and the Customers hereby assigns these items (including all intellectual property rights therein) to the Licensor for use for any purpose it sees fit.  All rights not expressly granted are reserved to the Licensor.

8. Confidential Information

a. Licensor's Confidential Information. The Customer acknowledges that during the term of the Agreement, the Customer may obtain proprietary or confidential information of Licensor, its affiliates and their suppliers, including without limitation the Software, flow charts, logic diagrams, databases, user manuals and/or screens concerning the Software trade secrets and know-how (the "Licensor Information"). During the period this Agreement is in effect and at all times after its termination, the Customer, shall maintain the confidentiality of the Licensor Information and shall not sell, cede, assign, license, publish, display, distribute, disclose or otherwise make available, the Licensor Information to any third party; nor shall the Customer use the Licensor Information except as expressly authorized by this Agreement. Customer shall not disclose any of the Licensor Information, to any person(s) without the prior written consent of the Licensor. The limitations on disclosure shall cease to apply if the Licensor Information forms part of the public domain other than through a breach by the Licensor. A disclosure of Licensor Information as required by a court of competent jurisdiction shall not be deemed a breach of this Agreement provided that the Customer does not disclose more than required by the court.

b. Customer's Confidential Information. Licensor acknowledges that during the term of this Agreement, the Licensor may obtain information relating to Customer’s past, present or future clients or customers, suppliers and business, which is of a confidential and proprietary nature (the "Customer Information"); provided that Customer Information shall not include any information which forms part of the public domain other than through a breach by the Customer. Licensor shall not disclose, except to its and its affiliates’ suppliers, directors, officers, employees and consultants who have a need to know, and shall keep all such Customer Information strictly confidential, unless and until such time as the information no longer qualifies as confidential "Customer Information" in accordance with this section. Nothing contained herein shall permit the Licensor to disclose the Customer Information for any purpose other than to carry out its rights and obligations under this Agreement. A disclosure of Customer Information as required by a court of competent jurisdiction shall not be deemed a breach of this Agreement provided that the Licensor does not disclose more than required by the court.

9. Support. Provision of Support is subject to the Customer having installed up to and including the most recently made available Software updates and does not include Software customization, consulting, data conversion or correction, legal advice or other services, or assistance with problems not attributable to the Software. If the Customer has purchased support or is otherwise entitled to support as set out in this Agreement or the Customer’s Order, then during the support period, the Licensor shall provide the Customer with support services for the Software, including “help desk” assistance, corrections, bug fixes, enhancements and updates, delivered as follows:

a. Toll free telephone support Monday - Friday 09:00 - 17:00 EST. Support will not be provided on statutory holidays observed in Ontario.

b. Technical support by email which will be responded to Monday to Friday 09:00 – 17:00 EST. Support will not be provided on statutory holidays in Ontario.

c. Online support through remote control software available Monday to Friday 09:00 – 17:00 EST. Support will not be provided on statutory holidays in Ontario.

d. All generally available updates of Software released during the support period.

10. Warranties and Disclaimers. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS; THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED AND ERROR-FREE; OR THE CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY CONTENT OR OTHER INFORMATION PROVIDED THROUGH THE SOFTWARE.

11. Limitations Period. No action under this Agreement may be brought against the Licensor more than one (1) year after the cause of action arises.

12. Limitation of Liability. Neither the Licensor nor any of its affiliates or suppliers shall be liable to the Customer for direct (affiliates and suppliers only), indirect, special, incidental, exemplary, aggravated, punitive or consequential damages (including, without limitation, economic losses or lost profits) related to this Agreement, the Software or resulting from the Customer’s use of or inability to use the Software, arising from any cause of action whatsoever, including contract, warranty, strict liability, negligence, or other tort, even if Licensor has been notified of the possibility of such damages. Other than in case of the Licensor’s indemnification obligation under Section 13, Licensor and its affiliates’ liability to Customer with respect to this Agreement, the Software and any obligations related thereto will not exceed $200.

13. Privacy.  Use of this Software is subject to the terms of Licensor’s privacy policy accessible at www.emergent.ca/privacy-policy, as amended from time to time, without notice.  The Customer acknowledges and agrees that the Software may collect and send statistical and other information about the occurrence of certain events within the Software and the Customer’s use of the Software, including without limitation the names of Customer’s clients, to the Licensor and the Software developer (“Event Information”) as well as certain personal information. The Customer acknowledges and agrees, in addition to any other uses set out in the privacy policy, the Licensor may use, and may permit the ultimate owner of the Software to use, Event Information and personal information for the following purposes: to provide Customer with access to the Software; for ensuring proper functioning, operation and support of the Software; billing; accounting; back-up purposes; administrative purposes; to measure and understand the behaviour and preferences of its customers’ to influence feature and functionality development; to troubleshoot technical problems; to enforce this agreement; to meet contractual reporting and audit obligations to suppliers whose products form part of or are otherwise related to the Software; in an aggregated form for research and statistical and market analysis purposes; for disclosure to and use by its affiliated entities, suppliers, partners and subcontractors that carry out certain functions for or provide certain services to Licensor; and for disclosure to any law enforcement authority or regulator, including without limitation a law society, having jurisdiction in connection with any investigation by any of them relating to Customers use of the Software. The Customer warrants that the Customer will not interfere or attempt to interfere with the collection and transmission of Event information or personal information. In order to operate effectively, the Licensor’s collection, storage and use of information may involve transfers of personal information and Event Information from Canada to another country. The Customer acknowledges that it may be necessary for the Licensor to transfer personal information to someone in another country and the Customer consents to such transfer. 

14. Term and Termination

a. Term. The term of this Agreement shall be for a period of one (1) year commencing the date the set of or out in the Order and shall automatically renew thereafter for consecutive one (1) year terms unless one party provides the other with written notice of non-renewal at least sixty (60) days but no more than ninety (90) days before the renewal date of the current term.

a. Termination. A party shall have the right to terminate this Agreement upon the occurrence of the following events:

i. In the event the other party fails to breaches any provision of this Agreement and fails to remedy such breach or violation within fifteen (15) days of receipt of written notice of such breach; or

ii. In the event the other party (A) liquidates, terminates or suspends its business, (B) becomes subject to any bankruptcy or insolvency proceeding under federal or provincial statute which is not dismissed within 90 days of implementation, (C) becomes subject to direct control by a trustee, receiver or similar authority which is not discharged within 90 days of appointment, or (D) has wound up other than as part of internal restructuring; or

iii. In the case of the Licensor only, if it ceases to have the necessary rights to provide the Software, if required by a supplier or if a supplier threatens to terminate the Licensor’s rights due to Customer conduct or otherwise.

c. Post Termination. Within ten (10) days after the effective date of termination of this Agreement, if the Software was governed by a Workstation License or if it was governed by a Per File License and the Agreement was terminated for any reason other an convenience by the Customer, the Customer shall return to the Licensor, at its own cost and expense, or delete or destroy all copies of the Software in its possession, control or power, and shall thereafter deliver to the Licensor a certificate, in writing signed by a duly authorized signing officer of Customer, that the Software and all copies thereof have been returned to the Licensor or deleted and/or destroyed, and the Customer shall have no further right to use the Software. If this Agreement is terminated for convenience by the Customer, in respect of Software governed by a Per File License, the Customer shall be entitled to retain its copy of the Software on a Workstation solely for the purpose of accessing historical Files stored in the Software at no charge. If the Customer creates new Files in the Software, this Agreement shall be deemed to have been revived and the Customer shall be liable for compliance with all terms and conditions of this Agreement, including without limitation, payment of Per File License Subscription Fees. The Customer shall pay any Fees that have accrued up to the date of termination.

d. Survival. Sections 2c through i, 3, 6, 7, 8, 10 through 14, 17 and 18, and the obligation to pay fees that were incurred prior to termination will survive termination of this Agreement.

15. Assignment. Customer shall not assign or otherwise transfer or assign the Software or this Agreement to any person or other legal entity, including, but not limited to any parent or related corporation, partnership, affiliated entity, joint-venture, or subsidiary, or other legal entity related to the Customer, nor shall this Agreement entitle the Customer, as part of the sale of any portion of its business, or assets, pursuant to any merger, acquisition, consolidation or reorganization, to transfer the Software or the License granted hereunder.

16. Force Majeure. Except in respect of payments due, neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any acts of God, any acts of a common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by the other party or such other party's employees, agents or sub-contractors; provided, however, that lack of funds shall not be deemed to be a reason beyond a party's reasonable control. The parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a delay in the performance of this Agreement.

17. Notices. Any notice given in accordance with this Agreement shall be in writing and the effective date of any such notice, if mailed, shall be the fifth (5th) business day following the date of mailing date, if hand delivered, shall be the date of delivery, and if delivered by facsimile transmission, shall be the first (1st) business day following transmission (with confirmation copy mailed). The Customer may also provide the Licensor with notice of termination of this Agreement by way of email; provided that an email shall be deemed received when the recipient, by email sent to the email address for the sender or by a notice delivered by another method in accordance with this section, acknowledges having received that email. The addresses for notice to the parties are as follows: (a) for Licensor to the attention of the Executive Director at 216-7895 Tranmere Drive, Mississauga, Ontario L5S 1V9 or by facsimile to 905-405-8455 or email to admin@emergent.ca; and (b) for the Customer to the address identified on the Order, Any facsimile number or any address for giving notice to any party may be changed from time to time by that party by notice given as hereinbefore provided.

18. General Provisions

a. Complete Agreement. The parties agree that this Agreement, along with the Order, is the entire agreement between the parties, and supersedes and merges all prior proposals, understandings and all other agreements, whether oral or written, between the parties in any way relating to the Software and this Agreement. Additionally, the parties acknowledge that there are no representations or warranties other than those set out in this Agreement.

b. License Modification. This Agreement may be modified: (i) at any time provided both parties agree in writing; or (ii) electronic display during use or update of the Software of any such modification; or (iii) by Licensor, at its sole discretion, provided Customer receives written notice of such modification a minimum of thirty (30) days from the effective date of such modification. Upon delivery of said modification by the Licensor, Licensor and Customer acknowledge Customer, in its sole discretion, has the option to either accept said modification or terminate this Agreement and return copies of the Software in accordance with Section 14c. Customer shall be deemed to have accepted the license modification if Licensor does not receive a written notice of termination by 5pm Eastern Standard Time on the thirtieth (30th) day after notice has been provided or the Licensor continues to use the Software after such date.

c. Waiver. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.

d. Severability. If any provision of this Agreement is found to be invalid, illegal or unenforceable under any applicable statute or rule of law, such provision shall be deemed severed from this Agreement and the remainder of this Agreement shall be remain valid and enforceable to the maximum extent possible.

e. Governing Law. This Agreement shall be governed by the laws of the Province of Ontario.

f. Laws. The Customer is responsible for compliance with local laws to the extent they are applicable and the Customer agrees to comply with all applicable laws with respect to its use of Software. The Customer is responsible for ensuring its use of the Software and any materials accessible by way of the programs complies with Canada’s Anti-Spam Law (“CASL”), as it may be amended from time to time, and with any other applicable rules and regulations of the Canadian Radio-television and Telecommunications Commission and any similar or replacement body with authority to administer and enforce CASL. Licensor will hold the Customer liable and will require the Customer to indemnify Licensor, its affiliates, and any of their respective directors, officers, employees, consultants, agents and suppliers for any damage which they may suffer, sustain, pay or incur as a result of the failure of Customer or by an entity for whom Customer is responsible to comply with any applicable law, including without limitation, CASL.

By clicking “I accept” during the ordering or installation of the Software, the Customer is deemed to have accepted this Agreement.