End User Agreement

1. Interpretation

This agreement shall be read and interpreted with any specific terms applicable to the software product you subscribed or purchased a license to. Such terms may be included in an order form or similar document or provided at the time of checkout on the marketplace operated by the Marketplace Owner.

2. Grant of License

If you are using a Perpetual Licensed version of the Software, Okapya hereby grants you a limited, revocable, non-sublicensable, non-exclusive, non-transferable license to download and use the Software only on hardware systems owned, leased or controlled by you, subject to the terms and conditions of this agreement (the “Perpetual License”). Subject to termination by Okapya in case of a default, the Perpetual License  shall be
perpetual.
If you are using a Subscription Based version  of the Software, Okapya hereby grants you a limited, revocable, non-sublicensable, non-exclusive, non-transferable right to use the Software in accordance with the terms and conditions of this agreement (the “Subscription Based License”).
Regardless of the type of license purchased by you, Okapya also grants you the right to reproduce the manuals and other documents available online relating to the installation and use of the Software (the “Documentation”) in association with authorized copies of the Software for the sole purpose of using the Software in accordance with this agreement.
The Software and Documentation are licensed, not sold. Even though copies of the Software may be provided on media of different formats, copies of the Software on different media formats do not constitute multiple licenses to the Software.

3. License Limitations

The Software may be licensed for a limited number of users, or its usage may be limited in any other way indicated at the time of your subscription or purchase of a license. You agree to respect all such limitations.

4. Authorized Users

If the Software is designed to be used in connection with a Marketplace Platform, each user of the Software must be authorized to use the Marketplace Platform. You must ensure that all authorized users comply with the terms and conditions of this agreement and you are liable for their conduct.

5. Fees

Any license granted herein is conditional on the payment of all fees as agreed between you and Okapya or as specified by the Marketplace Owner, as the case may be.

6. Maintenance

The Perpetual License includes free version upgrades for the duration of any mandatory maintenance period required by the Marketplace Owner, if any. The Subscription Based License includes maintenance and version upgrades for the duration of your subscription.
Okapya or the Marketplace Owner may from time to time perform maintenance on the infrastructure used to provide access to the cloud hosted versions of the Software. Okapya will use reasonable efforts to ensure that maintenance is carried out in a manner that minimizes the impact of periods of unavailability of the Software.

7. Ownership and Limits to Use

The Software and the Documentation will remain at all times the sole and exclusive property of Okapya. Any copy made in accordance with this agreement must indicate the ownership of Okapya.

You agree to comply with the following conditions:

  7.1 If the Software is provided through a marketplace, you may only use the license hereby granted to you to use the Software in connection with an authorized copy or an authorized subscription

  7.2 You may not reproduce, transmit or provide access to the Software on any computer that is not authorized under this agreement, either because it is not owned or controlled by you, because it exceeds the limits on copying and use set by this agreement or for the benefit of any person that is not an authorized user;

  7.3 You may not loan, sell, or otherwise distribute all or any part of the Software or Documentation;
  7.4 Except to the extent applicable law prohibits such restrictions, you may not modify, reverse engineer, decompile or disassemble the Software or the Marketplace Platform in whole or in part, or create any derivative works from or sublicense any rights in the Software or the Marketplace Platform or provide your assistance to any effort of a third party to do so;

  7.5 You may not modify or alter in any manner the Software or the Documentation or take part in any such an effort initiated by a third party; and

  7.6 This agreement does not grant you the right to access the source code of the Software or the Marketplace Platform.

8. User Support

Okapya will provide support in accordance with the Service-Level Agreement (SLA) published from time to time in connection with the Software. You can access the latest version of Okapya’s SLA here: Service-Level Agreement (SLA).

9. Improvements

You acknowledge and agree that Okapya is the sole owner of the Software and Documentation, including improvements made based on the feedback you may provide about the Software or Documentation (“Improvements”). You hereby agree you will make no claims of intellectual property rights to such Improvements or to such modified software, programs, data structure or other intellectual property created pursuant to Improvements, and where Okapya is not by law the first owner of such Improvements,
You hereby agree to assign and transfer to Okapya any and all right, title and interest you have or may have in the Improvements.

10. Publicity Rights

You agree that Okapya may use your name and logo for the purpose of identifying you as a user of the Software. Okapya will comply with a written request to discontinue such use within 30 days.

11. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL OKAPYA OR THE MARKETPLACE OWNER
BE HELD LIABLE FOR ANY LOSS OR DAMAGE, DIRECT OR INDIRECT, CONSEQUENTIAL OR INCIDENTAL
RESULTING FROM YOUR USE OF THE SOFTWARE AND DOCUMENTATION OR YOUR INABILITY TO USE THE
SOFTWARE OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, THE LOSS OR ALTERATION OF DATA, LOSS OF PROFIT, FAILURE TO MAKE ANTICIPATED SAVINGS, INTERRUPTION OF BUSINESS, LOSS OF EMPLOYEE WORK TIME OR COST OF SUBSTITUTE GOODS OR SERVICES. THIS EXCLUSION OF THE LIABILITY OF OKAPYA WILL PREVAIL EVEN WHEN YOU ADVISE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

12. No Warranty

The Software and Documentation are provided “as is” and Okapya makes no express warranties and disclaims all implied warranties with respect to the Software and documentation.

Without limiting the generality of the foregoing, Okapya does not warrant that the Software will operate without interruption or be error free nor does it make any warranties relating to the use, performance or results that may be obtained through the use of the Software and Documentation.

You accept responsibility for the use of the Software and the results obtained therefrom. You further agree that you are solely responsible for any direct and/or indirect consequences or damages resulting from your use of the Software, at the complete exoneration of Okapya and the Marketplace Owner.

13. Indemnification

Okapya agrees to indemnify and hold you harmless from claims by third parties alleging that the Software infringes such third party’s Canadian copyright or trademark and shall pay damages finally awarded by a court of competent jurisdiction against you for such a claim or, if such claim is settled, the settlement amount, provided that prompt notice of such claim is given to Okapya, that Okapya is given sole control of the defense of such claim and that you cooperate reasonably with Okapya. This constitutes your sole and exclusive remedy for any claims of intellectual property infringement by third-parties. You agree to use reasonable effort to mitigate any damages that are subject to indemnification hereunder.
You agree to indemnify and hold harmless Okapya, the Marketplace Owner and their respective affiliates, employees and representatives from any damages or losses (including reasonable legal counsel fees and expenses) arising out of your use, or any authorized user’s use, of the Software in breach of this agreement.

14. Customer Data

If your version of the Software is hosted by Okapya, you hereby grant to Okapya a royalty-free, non-exclusive, non-transferable right and license to use, copy, store and display the data you upload to the Software (“Customer Data”) solely for the purpose of enabling Okapya to provide services under this agreement. Okapya will keep Customer Data for 4 months after you are inactive on a trial version of the Software and 12 months after the end of a paid subscription to the Software through a Cloud License. After the termination of the aforementioned retention periods, Okapya will be entitled to destroy your Customer Data without further notice or delay.

15. Personal Data

You agree that Okapya may collect information or data from you and authorized users and use such data in compliance with Okapya’s Privacy Policy. Okapya may use or authorize others to access and use the collected data for the sole purpose of providing and improving the functionality and user experience of the Software or as provided by the Privacy Policy. Data collected from users will remain confidential and will not be used by Okapya or any third-party authorized by Okapya for any other purpose.
The Software is not meant for processing personal data. You are responsible for any personal data you upload to the Software and for determining the suitability of the Software to process personal data.

16. Export Controls

Export laws and regulations of Canada and any other relevant local export laws and regulations apply to the Software. You agree that such export control laws govern your use of the Software (including technical data) and any deliverables provided under this agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, program and/or materials resulting from the Software and Documentation will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws.

17. Term and Termination

This agreement shall continue until it is terminated by Okapya or the Software is no longer licensed to you.
If you breach any of the terms and conditions of this agreement or refuse or neglect to pay the applicable fees, Okapya will have the right to terminate this agreement immediately. Okapya may terminate a Cloud License at its discretion upon reasonable prior notice to you.
Upon termination of this agreement, you undertake to discontinue your use of the Software and the Documentation and to destroy any copy, as the case may be.

18. Modification

This agreement may be updated by Okapya upon release of new versions of perpetually licensed software. Your use of the new version will be conditioned upon your acceptance of the updated agreement.
Okapya may update this agreement with respect to subscription based software from time to time by notifying you in writing at least 30 days before the updated agreement comes into force.

19. Entire Agreement

All prior proposals, understandings, and other agreements, whether oral or written between the parties that relate to this subject matter are hereby superseded and merged into this agreement.

20. No Waiver

If Okapya fails, at any time during the term of this agreement, to insist upon strict performance of any of your obligations under this agreement, or if Okapya fails to exercise any of the rights or remedies to which it is entitled under this agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

21. Governing Law

This agreement is governed and will be construed in accordance with the laws applicable and in force in the Province of Quebec, Canada. You agree that any dispute with respect to this agreement or its interpretation shall be exclusively brought before the competent courts of the Province of Quebec, sitting in the judicial district of Montreal.

22. Assignment

You may not assign or otherwise transfer any of your rights and obligations under this Agreement without the prior written consent of Okapya which shall be at Okapya’s sole discretion.
Okapya may assign its rights and obligations under this agreement and any other agreement governing Customer subscription to the Software in connection with the sale or transfer of all or part of its assets.

23. Language

The parties confirm hereby that they each require that this agreement and all documents and notices in connection therewith be drawn up in English. Les parties reconnaissent par les présentes que chacune d’elles a exigé que cette convention et tout document ou avis y afférent soient rédigés en anglais.