NMB SOLUTIONS END USER LICENSE AGREEMENT
THE FOLLOWING TERMS AND CONDITIONS ARE APPLICABLE TO ANY SOFTWARE AND SERVICES PROVIDED TO YOU (“END-USER”) BY NMB SOLUTIONS (“NMB”) FOR WHICH NMB IS THE SOFTWARE PROVIDER OF “SOFTWARE”. TO THE EXTENT THAT THESE TERMS AND CONDITIONS ARE INCONSISTENT WITH ANY AGREEMENT BETWEEN YOU AND NMB, THE TERMS AND CONDITIONS OF THIS NMB END USER LICENSE AGREEMENT (“EULA”) SHALL GOVERN FOR THE SOFTWARE, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED FOR HEREIN. PLEASE READ THESE EULA TERMS CAREFULLY BEFORE USING THE SOFTWARE. THIS EULA IS ENTERED INTO BY AND BETWEEN NMB AND END-USER. THE SIGNING OF THIS AGREEMENT OR THE USE OF THE SOFTWARE WILL CONSTITUTE ACCEPTANCE BY YOU OF THE TERMS OF THIS EULA.
1.1 “Documentation” means documentation from the SOFTWARE publisher, in any medium, delivered to End User including, but not limited to the Statement of Work between NMB and End User (hereinafter the "SOW"), user manuals and training materials relating to the use of the SOFTWARE.
1.2 “Services” means professional services, maintenance and support services from NMB or one of its partners.
1.3 “Software” means the proprietary technology in Microsoft Dynamics AX/365 for Operations code form licensed to End User by NMB Solutions as set forth more fully in the SOW. This SOFTWARE includes intellectual property from NMB and/or from Publisher(s).
1.4 “Licensor” means the company that is licensing the use of the software to the End User
NMB Solutions Canada Inc.
3155 Swansea Crescent
Ottawa, ON K1G 3J3, Canada
1.5 “Publisher” means the company that has produced the software
For NMB software, it is NMB Solutions Canada Inc., Ottawa, ON, Canada
1.6 “Partner Publisher” means a company whose software is being sold and supported by NMB Solutions, but their software is governed by a separate licensing agreement.
For BluJay Parcel, it is BluJay Solutions Inc., Holland, MI, USA
1.7 “Territory” means Worldwide unless restricted by law.
2. License Grant.
NMB hereby grants to End User and its officers, directors, employees, subsidiaries, affiliates, divisions, partners, and successors, subject to the terms and conditions of this Agreement, a limited, revocable, non-exclusive, non-assignable, nontransferable, right and license to use the SOFTWARE solely for the internal business of the End User in the Territory solely at authorized Licensed Sites. End User and its officers, directors, employees, subsidiaries, affiliates, divisions, partners, and successors may not resell, redistribute, remarket, loan, rent, or otherwise make SOFTWARE available for beneficial use by any third party, service bureau, time-sharing or other similar purposes. Certain Services are available to you. Other Services may be obtained upon special request. Maintenance Service is covered under a separate agreement.
3. License Restrictions.
End User shall not, nor shall it permit any other third party to: (a) translate, deactivate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, distribute or otherwise dispose of the SOFTWARE or any part thereof; (b) allow distribution of any information regarding the SOFTWARE or any other means by wireless or satellite delivery services or applications; or (c) host or use, or allow any entity or person to host or use the SOFTWARE so that functions within the SOFTWARE are available to third parties, via an application service provider arrangement or otherwise. Notwithstanding sub-section 3(c) above, End User may (i) host the SOFTWARE at an End User location in the Territory only for its sole benefit, or (ii) contract with a hosting provider to host the SOFTWARE at the hosting provider’s location in the Territory only, and only for End User’s sole benefit.
4. Changes to SOFTWARE and SERVICES.
End User understands and acknowledges that the SOFTWARE may be updated, altered, terminated (license continues but NMB stops further use or development), modified or supplemented at any time.
5. Ownership of Intellectual Property.
End User hereby acknowledges and agrees that NMB are the owners of and retain all right, title and interest, including any copyrights, patents, trade secrets, moral rights and other intellectual property rights in and to SOFTWARE, documentation, processes or methodology produced or used by NMB, including all derivative works created therefrom and, without limitation, any modifications, changes and additions to the SOFTWARE.
6. Limitations on Branding.
End User shall not allow any third party to brand, re-brand or co-brand the SOFTWARE in connection with the trademark, service mark, trade name, logo, symbol, or mark of any third party.
Any information provided by NMB with respect to the SOFTWARE is NMB “Confidential Information”. The terms of the confidentiality agreement will be covered in the “Master Non-disclosure Agreement” signed by both parties.
8. Limited Warranty.
NMB warrants to End User that: (i) the unmodified SOFTWARE (delivered as stated in the SOW) will perform in all material respects with the Documentation then in effect for a period of ninety (90) days from the date the SOFTWARE is delivered; (ii) it has the authority to grant a license to the SOFTWARE; and (iii) SERVICES will be performed in a professional and workmanlike manner. End Users sole and exclusive remedy and NMB‘s sole and exclusive obligation for a breach of the foregoing warranty shall be for NMB to re-perform the SERVICES or undertake at its own expense to correct the non-conforming portion of the SOFTWARE. THE FOREGOING ARE END USER’S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY. NMB does not warrant that it will be able to correct all problems to cause the SOFTWARE to conform to the Documentation.
Except as set forth above, the SOFTWARE, Documentation and SERVICES are provided by NMB “AS IS,” and NMB hereby expressly disclaims any and all warranties of any kind or nature, whether express or implied, or statutory including without limitation the implied warranties of merchantability and fitness for a particular purpose (even if NMB had been informed of such purpose). Specifically, NMB does not warrant that: (a) the SOFTWARE will be error free, (b) it will perform in an uninterrupted manner, (c) it will operate in combination with all other software or (d) all defects in it are correctable. End User acknowledges that NMB is not responsible for and will have no liability for any products or SERVICES provided by any person or entity other than NMB, including items supplied or services performed by End User or End User’s agent.
9. Limitation of liability.
In no event will NMB be liable for any loss of profits, loss of use, business interruption, loss of data, cost of cover or indirect, special, incidental or consequential damages of any kind in connection with or arising out of the furnishing, performance or use of the SOFTWARE or SERVICES performed hereunder or any delay in delivery or furnishing the SOFTWARE or SERVICES whether alleged as a breach of contract or tortuous conduct, including negligence, even if NMB had been advised of the possibility of these damages. NMB’s MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, WHETHER OR NOT ARISING FROM NMB’S OR ITS PUBLISHER’S NEGLIGENCE, SHALL IN NO EVENT BE GREATER THAN THE LICENSE FEE PAID BY END USER FOR THE SOFTWARE OR FIFTY THOUSAND DOLLARS ($50,000.00), WHICHEVER IS LESS.
10. NMB Indemnification.
NMB shall indemnify End User and its officers, directors, employees, subsidiaries, divisions, partners, and successors and hold them harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by End User as a result of any claim, judgment, or adjudication against End User arising from a claim that End User’s use of the SOFTWARE, as permitted under this Agreement, infringes any valid patent issued as of the date of this EULA or any valid copyright and trademark rights of a third party that are finally awarded in any suit or proceeding. To qualify for such defense and payment, Licensee must: (a) give NMB prompt written notice of a claim; and (b) allow NMB to control, and fully cooperate with NMB in the defense and all related negotiations.
11. End User Indemnification.
End User will, at End User’s sole cost and expense, indemnify and hold NMB and its officers, directors, employees, agents, successors, and assigns harmless from and against any and all claims, losses, damages, judgments, costs and expenses, including attorneys’ fees (any of the above being a “Claim”) arising out of or related to (a) End User’s violation of the terms of this Agreement; or (b) any wrongful act or omission of End User and/or End User’s employees, agents, or contractors.
Either party may, by written notice to the other party, terminate this Agreement if a party is in material breach of this Agreement, which breach, is not cured within thirty (30) days (ten (10) days in the case of nonpayment) after the non-breaching party gives the other party written notice of such breach. End User may terminate this Agreement, with or without cause, at any time, upon thirty (30) days written notice to NMB. Upon termination, the End User and any other licenses granted hereunder shall cease to be effective and End User shall immediately cease all use, and return to NMB all copies of the SOFTWARE, Documentation and NMB’s Confidential Information.
Notwithstanding anything in the EULA to the contrary, NMB hereby grants the End User the right to make copies of the SOFTWARE and Documentation solely for backup, testing or archival purposes provided that all proprietary markings, titles, trademark symbols, copyright notices and other legends that appear on the original SOFTWARE and Documentation are reproduced on such copies. All copies shall remain in the possession of the End User and are subject to the terms of this EULA. The End User may not reproduce the SOFTWARE or Documentation except as expressly provided herein.
If any portion of this Agreement is found to be invalid or unenforceable, the remainder of the agreement shall remain in full force and effect. End User shall strictly comply with all applicable laws, rulings, and regulations and shall take no actions which would (i) cause NMB to be in violation of any laws, rulings or regulations applicable to it; or (ii) negatively reflect on the goodwill or reputation of NMB. End User will comply, to the extent applicable, with the Canada and United States Export Administration regulations. These terms and conditions constitute the entire agreement between End User and NMB pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter. No portion of this Agreement may be assigned by End User without NMB’s prior written consent. This Agreement will be interpreted and construed pursuant to the laws of Ontario, Canada without regard to any choice or conflict of law provisions that could result in the application of the laws of another jurisdiction.