END-USER LICENSE AGREEMENT (“EULA”) FOR WALTER SURFACE TECHNOLOGIES’ PASSIVATION APPLICATION SOFTWARE
IMPORTANT – READ CAREFULLY: This EULA is a legal contract between you (whether a single individual or entity) and Walter Surface Technologies Inc. (“Walter”, “We”, “we”, “Us”, “us”, “Our” or “our”) for a single copy of Walter’s passivation measurement and analysis software product (the “Software”) made available in association with Walter’s “SURFOX Smart Passivation Tester” device, including one copy of any associated online or electronic end user documentation made available by Walter or provided with the Software (collectively, the “Product”).
READ THIS LEGAL CONTRACT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR MAKING ANY USE OF THE SOFTWARE. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY DOWNLOADING, INSTALLING OR OTHERWISE USING ANY OF THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, OR DO NOT HAVE THE AUTHORITY TO AGREE TO ANYTHING IN THIS EULA ON BEHALF OF YOUR ORGANIZATION, DO NOT DOWNLOAD, INSTALL OR MAKE ANY USE OF THE SOFTWARE.
You acknowledge and agree that your use of the “SURFOX Smart Passivation Tester” device is subject to additional “Terms and Conditions of Sale” available with purchase of that device, and which can be accessed at smart.surfox.com/agreements. Warranties relating to the “SURFOX Smart Passivation Tester” device, if any, are set out in such “Terms and Conditions of Sale”. You acknowledge and agree that your use of the Product or the data produced by the Product in connection with a Walter website (including the website located at the domain www.surfox.com) is also subject to Walter’s “Website Terms and Conditions of Use”, which can also be accessed at smart.surfox.com/agreements.
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and international treaties. The Software is licensed to you pursuant to the terms of this EULA, and is not sold.
1. GRANT OF LICENSE
1.1 Limited License and License Period. Subject to the terms and conditions of this EULA, Walter grants to you (whether a single individual or entity) a limited, personal, revocable, non-exclusive, non-transferable license (the “License”) to download and install one (1) copy of the Product on a single mobile smart phone or tablet device (the “Device”) running a version of the AndroidTM operating system or iOSTM operating system identified by Walter on an online store or app store run by Walter or an authorized third party and from which the Product is available for download (each an “App Store”) as the minimum version required for the Software. The License is limited for use only by an individual user for a period commencing on the date of download or installation (whichever is earlier) and expiring on the date specified by us in the App Store from which the Software is downloaded (the “License Period”).
1.2 License Fee. If we identify a fee on the App Store, the License shall be of no force or effect unless you pay the fee in accordance with the applicable payment provisions of that App Store.
1.3 Free Software. For any version of the Software that we make available with no license fee (a “Free License”), Walter reserves the right to extend or shorten the License Period by setting out a revised expiry date for the License on a Walter web site (including any webpage located at the domain www.surfox.com) and/or via one or more App Stores.
1.4 Operating System. The Software shall only be used on a Device running at all times the version of the AndroidTM operating system or iOSTM operating system identified by Walter as the minimum version required for the Software to run unless and except where Walter may, in its sole and absolute discretion, provide any future update to the Software during the License Period to adapt the Software to a newer version of the AndroidTM operating system or iOSTM operating system.
1.5 Reservation. Except for the limited License granted in this Article 1, nothing in this EULA shall be construed as conferring any licenses or other rights under the intellectual property or other proprietary rights of Walter, its licensors, affiliates or any third party. In addition, Walter reserves the right to disable the Software once the License Period expires or is otherwise terminated under this EULA.
1.6 Backup Copy. You may make one single copy of the Software for backup purposes where applicable laws permit, but only to replace the copy of the Software running on the Device if that copy of the Software is no longer operational. The Software shall not be transferred or ported to another device or computer system for use in any circumstances.
2. RESTRICTIONS ON USE
2.1 Restrictions. You shall not:
(a) modify, translate, use, reproduce, copy, or transfer the right to use the Product, except to the extent expressly permitted in this EULA;
(b) resell, sublicense, rent, lease or lend the Product to any party whatsoever;
(c) except with a server authorized by Walter and run by Walter or its suppliers, which Walter can restrict or prohibit in its sole and absolute discretion, use the Software or any other portion of the Product remotely or over any server or network or as a hosted product;
(d) use the Software or any portion thereof concurrently or simultaneously on more than one (1) mobile or tablet device or on any device or computer other than the one Device for which the Software is specified and on which the Software is originally installed by you;
(e) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any of the Software (except to the extent that this restriction is expressly prohibited by law) or create derivative works based on any of the Product;
(f) disable or circumvent, or attempt to disable or circumvent, any access control or related code, device, process or procedure related to the Software; or
(g) use the Product in any manner that is in violation of this EULA or in violation of any applicable laws in the jurisdiction in which you use the Product, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
3. MODIFICATIONS, MULTIPLE ENVIRONMENTS
3.1 Modification. Walter reserves the right, at any time and without notice to you, to revise, modify or discontinue, temporarily or permanently, any or all of the Product, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Product. Walter shall not be obligated to make any of same available to you.
3.2 Multiple Environments, Languages, Media, Copies. If the Software supports multiple platforms or languages, if you receive the Software on multiple media, or if you otherwise receive multiple copies of the Software, the number of mobile or tablet devices on which the Software may be installed and used shall at all times be limited to one (1) mobile or tablet device, specifically the one Device.
4. OWNERSHIP, COPYRIGHT AND TRADEMARKS
4.1 Product Ownership. All right, title and interest in and to the Product (including, but not limited to, any and all images, photographs, animations, video, audio, music, text, applets, source code and any other computer readable code incorporated into the Product), all copies of the Product and any associated intellectual property rights therein, are owned by Walter, its licensors and/or affiliates and are protected by copyright and other intellectual property laws, international treaty provisions and other applicable national laws of the country in which it is being used. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Walter and/or its licensors and affiliates. You shall not copy the Software, except as set forth in this EULA.
4.2 Proprietary Notices. You shall not remove, modify or alter any Walter copyright, trademark or other proprietary rights notices from any part of the Product, including, without limitation, any such notices contained in or on the electronic and/or physical (if any) media or documentation or contained in or dynamically or otherwise created by any of the Product. Any copies which you are permitted to make pursuant to this EULA must contain the same copyright and other proprietary notices that appear on the original Product.
5. SUPPORT SERVICES AND FEEDBACK
5.2 End-User Feedback. You may, from time to time, provide suggestions, comments or other feedback to Walter concerning your experience with or use of the Product (the "Feedback"). YOU AGREE THAT WALTER SHALL BE FREE TO USE, COMPILE, PROCESS, ADAPT, DISCLOSE, REPRODUCE, LICENSE, DISTRIBUTE AND/OR OTHERWISE EXPLOIT THE FEEDBACK AS WALTER SEES FIT IN ITS SOLE AND ABSOLUTE DISCRETION, ENTIRELY WITHOUT OBLIGATION OR RESTRICTION OF ANY KIND ON ACCOUNT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. Feedback, even if designated as confidential by you, shall not, absent a separate written agreement between Walter and you, create any confidentiality obligation for Walter, and Walter will not be liable to you for any ideas incorporated into its business (including without limitation, product, service or advertising ideas) and will not incur any liability as a result of any similarities that may appear between the Feedback and future Walter products, services or operations.
6. EXCLUSION OF WARRANTY; LIMITATIONS OF LIABILITY
6.1 Exclusions of Warranty. THE PRODUCT AND SUPPORT SERVICES, IF ANY, ARE PROVIDED ON AN "AS IS, WITH ALL FAULTS BASIS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WALTER AND ITS LICENSORS, SUPPLIERS AND/OR AFFILIATES DO NOT MAKE OR OFFER ANY REPRESENTATION, WARRANTY, GUARANTEE OR ASSURANCE, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WALTER AND ITS SUPPLIERS, LICENSORS AND AFFILIATES DO NOT WARRANT AND/OR ASSUME RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, TEXT, READING, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN THE PRODUCT. THERE IS NO WARRANTY BY WALTER, ITS LICENSORS AND/OR AFFILIATES OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS, OR THAT THE PRODUCT IS OR WILL BE ACCURATE IN ITS RESPONSES AND RESULTS. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM IT.
6.2 Limitation of Liability.
(i) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WALTER, ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, CONTRATORS AND/OR LICENSORS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REVENUE, SALES, DATA, INTERRUPTION OF BUSINESS AND/OR LOSS OF BUSINESS INFORMATION), HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, UNAUTHORIZED USE OF THE PRODUCT, PERFORMANCE OF THE PRODUCT, THE NON-PERFORMANCE OF THE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION OF THE PRODUCT, AND/OR ANY OTHER FAILURE OF PERFORMANCE OF THE PRODUCT, IN ALL CASES EVEN IF WALTER, ITS LICENSORS AND/OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WALTER’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO ONE (1) DOLLAR.
(ii) Without limiting the foregoing, you acknowledge that in no event shall Walter or any of its suppliers, affiliates, employees, agents or representatives be liable for any loss, damage, cost or injury (including as a result of corrosion of a metallic surface or object), arising out of or relating to your misinterpretation or faulty interpretation of any data analyzed by the Product. You acknowledge that Walter’s passivation analysis and measurement product marketed as the “SURFOX Smart Passivation Tester” is intended to be used to test the quality and thickness of a layer of coating on a metal surface or object at a specific point of reference. A measurement of coating thickness or quality at one point of a surface or object may not be indicative of the quality and thickness of the coating at any other point of the surface or object, much less the entirety of the surface or object.
6.3 Application of Exclusions and Limitations. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND WILL SURVIVE CANCELLATION OR TERMINATION OF THIS EULA. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE EXCLUSIONS AND LIMITATIONS OF LIABILITY TO APPLY TO YOU, THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.1 Expiry of License Period. Upon expiry of the License Period, the License granted under this EULA shall terminate and you shall cease using the Product.
7.2 Termination by You. You may terminate this EULA at any time and for any reason by permanently deleting or destroying the Product, any copies thereof and any related materials provided by Walter.
7.3 Termination with Cause. Without prejudice to any of Walter’s rights, this EULA shall terminate automatically if you fail to comply with any of the terms of this EULA. In such event, you shall immediately delete or destroy the Product, any copies thereof and any related materials provided by Walter.
7.4 Termination of Rights. Upon termination of this EULA for any reason, all rights, privileges, and licenses granted to you hereunder shall forthwith terminate. Walter shall not be liable to you, or any third party, for damages of any sort resulting from the termination of this EULA in accordance with its terms.
8.1 Notices. Any notice to Walter shall be made in writing and shall be deemed to have been given if it is in writing and is delivered in person, sent by courier or registered mail, or transmitted by confirmed facsimile, addressed to Walter at its address or facsimile number noted below:
Walter Surface Technologies
5977 Trans Canada Highway West
Quebec H9R 1C1
Attention: Research & Development, Re: Passivation Tester
Toll Free: 1-800-363-7368
Notices shall be deemed effective on the date of delivery in the case of personal delivery and courier, on the date of transmission in the case of facsimile that is electronically confirmed or on the fifth day after it was mailed in the case of registered mail.
8.2 Export Control Laws. You acknowledge and agree that the Product and any Support Services may be subject to export control laws, restrictions and regulations of Canada and the United States of America. You agree to comply strictly with all then-current applicable laws, rules and regulations relating to the import and export of the Product.
8.3 Waiver and Modification. Any modification of this EULA must be agreed to in a writing signed by an authorized representative of Walter, and must specifically reference this EULA. Walter may modify the terms of this EULA at any time with written notice to you. If you do not agree with any such modification, your only remedy shall be to terminate this EULA. You may not modify this EULA without the express written consent of an officer of Walter. No failure, delay or omission in the exercise of any right or remedy by Walter shall impair such right or remedy or be construed as a waiver of such right or remedy or any other right or remedy. A waiver, consent or approval of any act of yours by Walter shall not be deemed to waive or render unnecessary consent to or approval of any other subsequent act of yours.
8.4 Assignment. This EULA shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. You shall not resell or assign or otherwise transfer your rights or obligations under this EULA without the express written authorization of Walter. Walter may assign or transfer any and all of its rights and obligations under this EULA to any other party without notice to you.
8.5 Governing Law. This EULA shall be governed by and construed in accordance with the laws of the Province of Quebec (without regard to conflict of law principles). All legal proceedings arising out of or in connection with this EULA shall be brought solely in the courts of the Province of Quebec. You expressly submit and attorn to the exclusive jurisdiction of said courts and consent to extra-territorial service of process. The United Nations Convention on the International Sale of Goods shall not apply. We hereby specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
8.6 Severability. The provisions of this EULA, whether or not contained in the same section, are independent and separable. If any of the provisions of this EULA shall be invalid or unenforceable under the laws of the jurisdiction where enforcement is sought, or to the extent that the validity, legality, or enforceability of any limitations on and disclaimers of liability are affected by local consumer protection legislation, such invalidity, illegality or unenforceability shall not invalidate or render unenforceable the entire EULA but rather the entire EULA shall be construed as if not containing the particular invalid, illegal or unenforceable provision or provisions and the rights and obligations of the parties shall be construed and enforced accordingly, with the invalid, illegal or unenforceable provision modified so as to be enforced to the fullest extent possible under the laws of that jurisdiction.
8.7 Reservation of Rights. The rights and remedies of Walter set forth in this EULA are in addition to any rights or remedies Walter may otherwise have at law or in equity.
8.8 Authority to Bind. If you are entering this EULA on behalf of a company, you warrant that you have authority to do so.
8.9 Interpretation. The language in all parts of this EULA shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the parties hereto. Any rule of construction that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this EULA. The headings contained in this EULA are used solely for convenience and do not constitute a part of the EULA, nor should they be used to aid in any manner in the construction or interpretation of this EULA. Any reference to “agree”, “agrees”, “represent”, “represents”, “acknowledge”, “acknowledges”, or any “acknowledgement” by you in this EULA, shall refer in all cases to your acceptance of this EULA through downloading, installing, or making use of the Product in accordance with this EULA.
8.10 Currency. In this EULA, all dollar amounts are expressed in Canadian currency.
8.11 Entire Agreement. This EULA constitutes the entire agreement between you and Walter with respect to the Product and/or any Support Services, and this EULA supersedes all previous communications, representations, warranties, understandings, and agreements, whether electronic, oral, or written, between you and Walter relating to the subject matter of this EULA. With respect to the subject matter hereof, this EULA shall take precedence over the “Terms and Conditions of Sale” associated with “SURFOX Smart Passivation Tester” device, and over the “Website Terms and Conditions of Use” relating to the use of a Walter website and services in connection with the Product (including the website located at the domain www.surfox.com).
8.12 Independent Parties. The parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture or agency relationship between parties. Neither party shall have the right to obligate or bind the other party in any manner to any third party.
8.13 Choice of Language. The parties acknowledge that they require that this Agreement be drawn up in the English language only. Les parties reconnaissent qu’elles ont exigé que la présente convention soit rédigée en langue anglaise seulement.