WorkTime Cloud - End User License Agreement

This end user license agreement is between you, whether an individual or entity (the 'Licensee') and NesterSoft Inc. (the 'Licensor') regarding the software service WORKTIME CLOUD (the 'Software'). The Software, its updates, patches, explanatory materials, documentation, license serial numbers (The 'Product') are licensed, not sold. If you do not agree to the terms and conditions of this Agreement, you may not operate or use the Product in any way.

For the purposes of this Agreement, 'Licensor Site' shall mean the Internet website maintained by or on behalf of Licensor from which the Product is available for download pursuant to a license from Licensor. The Licensor Site is currently located at www.worktime.com.

1. Grant of License. Updates. Support.

1.1. License. The Licensor grants you the non-exclusive and non-transferable license to store, load, install, execute, and display (to 'Use') the Product on a specified number of computers, workstations, personal digital assistants, mobile phones, hand-held devices, or other electronic devices (a 'Client Device') pursuant to the terms and conditions of this Agreement ('License') and you hereby agree and accept such License as follows:
Evaluation License. If you have received, downloaded and/or installed an evaluation license of the Product and are hereby granted an evaluation license for the Software and you may operate the Product only for evaluation purposes (Section 2 of this Agreement) and only during the single applicable evaluation period of fifteen (15) days, unless otherwise indicated, from the date of the first execution of the Software. Any use of the Product for other purposes or beyond the applicable evaluation period is strictly prohibited, provided however that, subject to the restrictions contained herein, you may copy and distribute a trial version of the Product as provided in Section 2. The Software is provided AS IS, with no warranty during this time period.
Paid License, Updates and Releases. Descriptions of all available paid license types of the Product are located on the Licensor Site (www.worktime.com/licensing-and-fees.html). The License type and number of permitted users/devices are specified at the time of purchase of the License. After purchasing the License, Licensee is granted a non-exclusive and non-transferable license according to the purchase. The License fee is a monthly fee. The License is a one month commitment and may be terminated at any time. Any support requests are answered within 1 business day. Resolution of an issue is provided by Licensor in a timely manner (depending on the issue complexity).

2. Proprietary Rights and Non-Disclosure.

2.1. Ownership Rights. You agree that the Product and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Product, are proprietary intellectual properties and/or the valuable trade secrets of the Licensor or its suppliers and/or licensors and are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of Canada, the United States, EU, other countries and international treaties. You may use trademarks only insofar as to identify printed output produced by the Product in accordance with accepted trademark practice, including identification of trademark owner's name. Such use of any trademark does not give you any rights of ownership in that trademark. The Licensor and/or its suppliers own and retain all right, title, and interest in and to the Product, including without limitations any error corrections, enhancements, Updates or other modifications to the Software, whether made by the Licensor or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Product does not transfer to you any title to the intellectual property in the Product, and you will not acquire any rights to the Product except as expressly set forth in this Agreement. All copies of the Product made hereunder must contain the same proprietary notices that appear on and in the Product. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Product and you acknowledge that the License, as further defined herein, granted under this Agreement only provides you with a right of limited use under the terms and conditions of this Agreement.

2.2. Confidential Information. You agree that, unless otherwise specifically provided herein the Product, including the specific design and structure of individual programs and the Product, constitute confidential proprietary information of the Licensor or its suppliers and/or licensors. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party. For purposes hereof, 'License Key(s)' shall mean a unique sequence or series of sequences of digit and/or symbols or a file provided to you by the Licensor confirming the purchase of the license from the Licensor, which may carry the information about the License, i.e. its type, the name of Licensee, the number of Licenses purchased, and enabling the full functionality of the Product in accordance with the License granted under this Agreement. You agree to implement reasonable security measures to protect such confidential information, provided however, that you may make and distribute unlimited copies of the trial version of Product in object code only as long as each copy that you make and distribute contains this Agreement subject to end user's acceptance before the first use, and the same copyright and other proprietary notices pertaining to the Product that appear in the Product.

2.3. No Modification. You agree not to modify or alter the Product in any way. You may not remove or alter any copyright notices or other proprietary notices on any copies of the Product.

3. Payment schedule
3.1. Purchase Order. Upon Software delivery Licensee shall pay the fees and charges as specified in the Purchase Order to Licensor within thirty (30) days. If for whatever reason after receipt of a properly executed invoice Licensee fails to make payment or formally dispute the invoice Licensor may at its option request interest be accrued in an amount not to exceed the maximum amount allowed by law.
3.2. Online Purchase. Upon receiving online payment Licensor delivers (via email) Software License to Licensee within 1 business day.

4. Warranties
4.1. Licensor warrants that all Licensed Products, including Licensor provided updates, are free of Viruses or any other programmed device that could impair the Licensee’s use of the Software or the equipment on which the Software resides.
4.2. Unless expressly agreed to in writing between the Parties and incorporated into this Agreement, Licensor warrants that all Licensed Products(s) developed and/or otherwise provided by Licensor to Licensee shall (1) contain no hidden files, (2) not replicate, transmit, or activate itself without control of a person operating computing equipment on which it resides, (3) not alter, damage, or erase any data or computer programs without control of a person operating the computing equipment on which it resides, (4) contains no key, node lock, time-out, or other function, whether implemented by electronic, mechanical or other means, which restricts or may restricts use or access to any program(s) or data developed and/or otherwise provided by Licensor to Licensee under this Agreement. Notwithstanding anything in the agreement to the contrary, if Licensor provides any Licensed Product(s) to Licensee which contains any of the above mentioned condition(s).
4.3. Licensor represents, warrants, and covenants that to the best of its knowledge no portion of the services, deliverables or software violates any patent, copyright, trademark, trade secret, or other proprietary or intellectual property or other rights of Licensor or any third party. Licensor shall defend, indemnify, and hold harmless Licensee and its agents, affiliates, successors, and permitted assigns from and against any and all losses, liabilities, claims, damages, actions, suits, proceedings, settlements, judgments, costs and expenses (including without limitation reasonable attorney's fees) arising out of or in connection with any third party infringement claim or a breach by Licensor of the Non-Infringement Warranty set forth herein.


5. WARRANTY DISCLAIMER.THE SOFTWARE IS PROVIDED ‘AS IS.’ LICENSOR DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

6. LIMIT ON LIABILITY. LICENSOR IS NOT LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR USE OF THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, COSTS OF DELAY, ANY FAILURE OF DELIVERY, AND COSTS OF LOST OR DAMAGED MATERIAL; EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER THE CLAIM IS BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY). NESTERSOFT INC. TOTAL LIABILITY FOR DAMAGES OF ANY KIND IS LIMITED TO THE AMOUNT PAID TO LICENSOR FOR THE SOFTWARE GIVING RISE TO SUCH DAMAGE.

This Limit on Liability shall not apply to Licensor’s duty to indemnify Licensee against any third party infringement claim or any claim for a breach by Licensor of the Non-Infringement Warranty.


7. TERMINATION.
This agreement is in effect until terminated. Licensee may terminate the agreement by removing the Software from all computers, and returning or destroying the Software. Either party may terminate this agreement if the other party materially breaches this agreement, and has not cured that breach within a 30 day written cure period from the non-breaching party. Upon termination of this agreement for any reason, Licensee must immediately stop all use of the Software, remove the Software from its computers, and either destroy the Software or return the Software to Licensor. Licensee must confirm in writing that it has complied with this requirement, if requested by Licensor.

8. OTHER TERMS.
This agreement, and all orders, constitute the entire agreement between the parties, and supersedes all prior or contemporaneous negotiations, representations or agreements, whether oral or written, related to this subject matter. No modification or waiver of any term of this agreement is effective unless signed by both parties. Neither party may assign or transfer this agreement to a third party, except that the agreement may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party. The parties are independent contractors with respect to each other. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for force majeure events. All terms that by their nature survive termination of this agreement for the party to enforce its rights under, and receive the benefits of, this agreement will survive. This Agreement shall be governed by and construed and enforced in accordance with the laws of Canada without reference to conflicts of law rules and principles. The Convention on Contracts for the International Sale of Goods does not apply.


Edition May 2016