IMPORTANT – READ CAREFULLY: BY TYPING “I AGREE”, CLICKING THE “ACCEPT” BUTTON AND/OR OTHERWISE ACCEPTING THIS SOURCE CODE AGREEMENT THROUGH DOWNLOADING OR RECEIVING AT YOUR REQUEST THE SOURCE CODE AS DEFINED BELOW, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “REJECT” BUTTON AND DELETE ANY DOWNLOADED COPIES OF THE SOURCE CODE.
This Agreement was last updated on June 9, 2015. It is effective between you and SKKYNET as of the date of you accepting this Agreement.
“Copyright Notice” means collectively any copyright notice, proprietary information notices, or other notice.
“Derivative Work” means a work based on the Source Code.
“Skkynet” means the Skkynet entity defined in Section 6.5.
“Source Code” shall mean (i) all source code provided or made available to Licensee pursuant to this Agreement, and (ii) such source code’s structure and organization, and (iii) all related documentation, developer’s notes and database schema, if any, provided or made available to Licensee pursuant to this Agreement, and (iv) any copies (both electronic and paper) made thereof by or on behalf of Licensee. The Source Code is defined in Annexure 1 (Source Code) hereto.
2. LICENSEE RIGHTS AND RESTRICTIONS
2.1. Grant of License
Subject to Licensee’s strict compliance with the terms and conditions of this Agreement and without limiting the application of any applicable end user licence agreement, Skkynet hereby grants to Licensee a non-exclusive, non-transferable, limited royalty-free license to create Derivative Works from the Source Code and to internally reproduce the Source Code and Derivative Works, for:
(i) the sole purpose of developing an application to be used with the Skkynet’s services or a related software product from Skkynet,
(ii) to sublicense the use of the Derivative Works in compiled object code format.
Licensee understands and acknowledges that Skkynet may develop and/or market for itself the same or similar Derivative Works, and may grant a third person or entity the right to develop and/or market the same or similar Derivative Works, and that Skkynet has made no promises to the contrary.
Skkynet shall be under no obligation whatsoever to: (i) provide maintenance or support for the Source Code or Derivative Works; or (ii) to notify the Licensee of bug fixes, patches, or updates (collectively, “Update”) to the aforegoing (if any). If, in its sole discretion, Skkynet makes an Update available to the Licensee and Skkynet does not separately enter into a written license agreement with the Licensee relating to such Update, then it shall be deemed part of the Source Code and subject to this Agreement.
2.2. Restrictions and Requirements of Use
Except as expressly provided in Section 2.1, no other license or right in the Source Code is granted to Licensee under this Agreement directly or by implication or otherwise. Without limiting the generality of the foregoing and notwithstanding anything to the contrary in this Agreement, Licensee may not:
Remove any Copyright Notice provided by Skkynet, including, without limitation, any Copyright Notice contained in the Source Code provided by Skkynet;
Use the Source Code in a manner to prepare, draft, or assist third parties in preparing or creating software that is intended for sale, license, or distribution to others (whether that distribution be for profit or free) in a manner that would compete directly or indirectly with Skkynet’s products or services; or
Reproduce or use any part of the Source Code except as provided in this Agreement or any other Skkynet agreement.
The restrictions set forth in Section 2.2.1 shall apply equally to attempts to perform the restricted activities, regardless of whether or not any such attempt is successful.
3. INTELLECTUAL PROPERTY
Existing Intellectual Property. As between the Parties, Skkynet is and shall be the exclusive owner of all right, title and interest in and to (i) the Source Code, and (ii) all patent, copyright, trademark, trade secret, and any and all other protectable intellectual property and proprietary rights both now and in the future, whether or not registered or perfected (but to the extent existing, all registrations, applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force), and whether arising by operation of law, contract, or otherwise (collectively, “Intellectual Property Rights”) in and to the foregoing (the “Existing Intellectual Property”). The Source Code is protected by copyright and other applicable laws. Licensee may not copy or use the Source Code except as permitted herein. Licensee agrees not to modify, adapt or translate the Source Code except as permitted herein. Any information or documentation supplied by Skkynet or otherwise obtained by Licensee in connection with or as a result of this Agreement may only be used by Licensee for the purpose described herein.
New Intellectual Property. As between the Parties, any right, title and interest to any Derivative Works, updates, and modifications shall be owned by the Party who created them (“Single Party Created Derivative Works”). With respect to Derivative Works, updates, and modifications, that are jointly created (“Jointly Created Derivative Works”), they shall be owned by Skkynet. Licensee grants and shall cause to be granted as applicable, a perpetual, irrevocable and non-limited license to use Single Party Created Derivative Works created by the Licensee. In no event shall any rights in the Skkynet Source Code vest or otherwise transfer to Licensee and Licensee acknowledges that any ownership of any Derivative Works, updates, and modifications shall be limited to the Derivative Works, updates, and modifications and not the underlying Skkynet Source Code.
Cooperation. The Licensee agrees to cooperate with Skkynet to obtain, perfect, or register any Intellectual Property Rights in respect of the Derivative Works as outlined in Section 3.2. In connection with the foregoing, the Licensee agrees to execute any documents of assignment, registration, and recordation as may be necessary to perfect, or protect, the rights in each country in which the Licensee desires, and to ensure that the Licensee’s employees and permitted contractors, are bound by and abide by the terms and conditions of this provision and have executed all agreements necessary to obtain, perfect, or register the Intellectual Property Rights.
4. WARRANTY, WARRANTY DISCLAIMER, AND LIMITATION OF LIABILITY
Mutual Representations. Each party represents and warrants (i) that such party is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) that such party has the legal right and authority to enter into and perform its obligations under this Agreement; (iii) that, to the best of its knowledge, the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such party; and (iv) that this Agreement, when executed, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
Warranty Disclaimer. Except as specifically set forth in Section 4.1 above, no further warranty of any kind is being provided by Skkynet, including, without limitation, any warranty that the Source Code or Derivative Works shall be free from defects in design, material or workmanship. LICENSEE ASSUMES TOTAL RESPONSIBILITY FOR THE USE OF THE SOURCE CODE AND THE DERIVATIVE WORKS, AND THE SOURCE CODE AND DERIVIATIVE WORKS ARE PROVIDED ON AN “AS-IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 4.1, THE SOURCE CODE AND DERIVATIVE WORKS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND WHETHER ARISING UNDER LAW OR FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE (COLLECTIVELY, “DISCLAIMED WARRANTIES”), INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED BY SKKYNET AND FOREVER WAIVED BY LICENSEE. NO ADVICE OR INFORMATION GIVEN BY SKKYNET, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY OR OBLIGATION OF SKKYNET. In the event that any of the disclaimers in this section 4.2 cannot be disclaimed or waived under applicable law, Licensee’s sole and exclusive remedy for breach of such warranty will be, subject to Skkynet’s sole discretion to the replacement of the Source Code.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SKKYNET SHALL NOT BE LIABLE TO LICENSEE, AND LICENSEE COVENANTS THAT IT WILL NOT ASSERT A CLAIM AGAINST SKKYNET, UNDER ANY LEGAL THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE PROVIDED BY STATUTE OR LAW, (i) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR STATUTORY DAMAGES, OR ANY DAMAGES RESULTING FROM LOST PROFITS, INTERRUPTION OF BUSINESS, OR LOSS OF GOODWILL, EVEN IF SKKYNET HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) FOR DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT. LICENSEE HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
Basis of Bargain. The parties hereby acknowledge and agree that the warranty disclaimers and limitation of liability provisions set forth above have been negotiated and are fundamental elements of the basis of this Agreement, and Skkynet would not be able to provide the licenses granted herein on the other terms and conditions currently offered without such limitations. The parties further agree that such provisions will inure to the benefit of the other party’s successors and permitted assigns.
Indemnification. Licensee hereby agrees to indemnify, defend and hold harmless Skkynet and its directors, officers, shareholders, partners, affiliates, employees, representatives and agents from and against any loss, fines, fees, settlements, judgments, costs, expenses (including, without limitation, reasonable attorneys’ fees, court costs, and administrative fees), and any other liability arising out of or related to any claim, demand, or cause of action asserted by any third party arising out of this Agreement.
5. TERM AND TERMINATION
Term. The term of this Agreement and the licenses granted herein shall begin on the effective date of this Agreement and shall continue as long as Licensee is using the Source Code and/or Derivative Works or until the earlier termination of this Agreement pursuant to the provisions set forth herein.
Event of Default. Each of the following shall constitute an event of default (“Event of Default”) under this Agreement: (a) an uncured material breach by either party of this Agreement, provided that the non-breaching party has notified the breaching party of the Event of Default and afforded the breaching party at least thirty (30) days to cure such breach; and (b) if in Skkynet’s sole discretion, Licensee is acquired by or merges with, or begins discussions to become acquired by or merged with, a competitor to Skkynet.
Termination upon Event of Default. If an Event of Default occurs, the non-breaching party (or Skkynet in the event of an Event of Default pursuant to Sections 5.2(a) or (b)) may, in its sole discretion, terminate this Agreement.
Effect of Termination. Upon termination or expiration of this Agreement for any reason whatsoever, Licensee at Skkynet’s discretion shall immediately: (i) cease all use of the Source Code and Derivative Works; and (ii) within ten (10) days, return or destroy (and have an authorized officer certify such destruction) the Source Code and Derivative Works, including without limitation, removing all copies of Source Code and Derivative Works from Licensee computers and storage media. In addition to the foregoing, Licensee agrees that it shall not, following termination or expiration of this Agreement, act in any way to damage the reputation or goodwill of Skkynet.
Assignment. Licensee may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Skkynet, such consent to be given at its sole discretion. Any attempted assignment without such prior written consent shall be void. Skkynet may assign all or part of this Agreement immediately, without the prior written consent of Licensee (i) to any successor in interest to Skkynet who assumes responsibility for Skkynet’ obligations hereunder; or (ii) if necessary to satisfy the rules, regulations and/or orders of any federal, state or local governmental agency or body.
Severability. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be amended to reflect, to the greatest extent permitted under applicable law, the original intent of the parties, and the remainder of the provisions shall remain in full force and effect.
Waiver. Either party’s failure to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of that or any other of its rights hereunder at any later date or time.
Force Majeure. With the exception of any payment obligations, neither party shall be liable for failing to perform its obligations hereunder (other than payment obligations) where delayed or hindered by war, riots, embargoes, strikes or acts of its vendors or suppliers, accidents, acts of God, or any other event beyond its reasonable control.
Notices. The Skkynet entity Licensee should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts have jurisdiction over any such lawsuit, depend on where the Licensee is domiciled. Notwithstanding the foregoing, the Parties may seek injunctive relief in any court of competent jurisdiction.
If You are domiciled in:
You are contracting with:
Notices should be addressed to:
The governing law is:
The courts having exclusive jurisdiction are:
Cogent Real-Time Systems, Inc.
162 Guelph Street, Suite 253, Georgetown, ON, L7G 5X7, Canada*
The laws of Ontario, Canada
* with a copy to: Skkynet Cloud Systems, Inc., 2233 Argentia Road, Suite 306, Mississauga, Ontario, L5N 2X7, Canada.
Notice. Any notices by the Licensee under this Agreement shall be promptly sent in writing to the addresses in the table above and Skkynet may give notice to the Licensee by electronic mail to the e-mail address on record in Skkynet’s account information or by written communication sent by first class mail or pre-paid post to Licensee’s address on record in Skkynet’s account information.
Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
Survival. All terms and provisions of this Agreement that should by their nature survive the termination shall so survive.
Entire Agreement. Each Annexure is hereby incorporated by reference into this Agreement as if fully rewritten herein. This Agreement, including any Annexure attached hereto and made part hereof, constitutes the entire agreement between Licensee and Skkynet with respect to the subject matter hereof. In case of any conflict, this Agreement supersedes any prior agreements, representations, or dealings between the parties.
Amendment. Skkynet reserves the right at any time to modify this Agreement without notice and to impose new or additional terms or conditions on Licensee’s use of the Source Code or Derivative Works. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Licensee’s continued use of the Source Code and Derivative Works will be deemed acceptance thereof. Updated terms and conditions may be found at http://skkynet.com/legal.
Construction. The provisions of this Agreement are the product of discussion and negotiation by the parties, and no provision may be construed against either party by reason of its drafting of such provision.
Headings. The section headings herein are for convenience and reference purposes only and shall not serve as a basis for construction or interpretation.
The Embedded Toolkit (“ETK”) source code consists of C language files, documents, shell scripts and other related files for building the ETK on a variety of CPU architectures and operating systems (“Source Code”). The ETK implements the necessary operations to connect to Skkynet services and/or software products for the purpose of transferring real-time data.
– OR –
The Server ETK comprises all of the files in the ETK source code, in addition to source files that implement server capability (“Server ETK”), which allows remote programs to connect to programs developed using the Server ETK (“Source Code”).
In the case of the Server ETK, the following additional provisions shall apply:
A. Licensee agrees and acknowledges that the Source Code is: (i) proprietary to Skkynet; (ii) is of significant value to Skkynet; (iii) is not publicly available; (iv) contains trade secrets of Skkynet; and (v) constitutes the confidential information of Skkynet. Licensee shall comply with the following restrictions on use of the Source Code and shall maintain the Source Code in accordance with the following security procedures:
Licensee shall use commercially reasonable measures to preserve the security and confidentiality of the Source Code, including, without limitation, securing the network, server, hard drives, and other media on which the Source Code is stored or maintained.
Licensee shall limit access to the Source Code to its employees who have a need to access the Source Code for the purposes of exercising Licensee’s rights under this Agreement (each, an “Authorized Person”) and to its independent contractors (and developers (Third Parties), if any, who are approved by Skkynet pursuant to Section A (each, an “Authorized Independent Contractor”). Without limiting the foregoing, no Authorized Person or Authorized Independent Contractor may have access to the Source Code unless and until: (i) he or she has been apprised of and acknowledges the confidential and proprietary nature of the Source Code; (ii) has been trained with respect to the procedures designed to preserve its confidentiality; (iii) and is subject to a binding and enforceable obligation neither to use the Source Code (other than for purposes expressly permitted by this Agreement) nor to disclose such Source Code to any person or entity other than a person similarly authorized to access the Source Code.
Licensee shall conduct periodic reviews to ensure compliance with the foregoing security requirements. Skkynet shall have the right to conduct a review of Licensee on Licensee’s premises to ensure compliance with the foregoing security restrictions, including the inspection of the records and agreement maintained by Licensee pursuant to subsection A2 above, provided that Skkynet provides at least three (3) business days prior written notice.
B. Licensee shall be jointly and severally responsible for any violation of any of the confidentiality obligations set forth in this Agreement by any of its employees, contractors and third parties acting on its behalf.
C. Injunctive Relief. Licensee acknowledges and agrees that Skkynet will suffer irreparable damage in the event of a breach by Licensee of the terms of these Sections and that Skkynet will be entitled to injunctive relief (without the necessity of posting a bond or proving actual damages) in the event of any such breach.
END OF AGREEMENT
How to Apply This Agreement to Your New Programs:
If you develop a new program, attach the following notices to the program. It is safest to attach them to the start of each source file to most effectively state the exclusion of warranty; and each file should have at least the “copyright” line and a pointer to where the full notice is found.