FIRSTCLASS END USER LICENSE AGREEMENT 

IMPORTANT - PLEASE READ CAREFULLY - THIS END USER LICENSE AGREEMENT ("EULA") IS A BINDING LICENSE AGREEMENT BETWEEN YOU (EITHER AS AN INDIVIDUAL, A SINGLE CORPORATION, OR OTHER SINGLE LEGAL ENTITY) AS LICENSEE ("LICENSEE") AND OPEN TEXT CORPORATION ("OTC") AS LICENSOR. YOU AGREE THAT, AT SUCH TIME AS YOU INSTALL, COPY, EXECUTE, AND/OR  USE ANY OTC SOFTWARE, DOCUMENTATION, AND/OR OTHER INTELLECTUAL PROPERTY ACCOMPANYING, OR AUTHORIZED BY OTC IN WRITING FOR YOUR USE PURSUANT TO, THIS EULA ("EFFECTIVE DATE"), YOU WILL BECOME LEGALLY BOUND BY ALL PROVISIONS  OF THIS EULA.  IF YOU DO NOT SO AGREE, YOU MAY NOT INSTALL, COPY, EXECUTE, AND/OR USE ANY SUCH SOFTWARE, DOCUMENTATION, AND/OR INTELLECTUAL PROPERTY AND MUST PROMPTLY RETURN SAME TO OTC.  


1.0  	Definitions

"Applicable Taxes" shall have the meaning set out in Section 13 hereof; 

"Authorized Channel Partner" means any dealer, reseller or distributor authorized by OTC to resell software licenses.

"Derivative Work" means: (a) any modification, change, translation, addition, enhancement, extension, upgrade, update or improvement of the Software, (b) any work resulting from the porting of the Software to a different operating environment or platform, (c) any new software program based on (i) the Software or any identifiable portion of the Software or (ii) the Software or any identifiable portion of the Software as combined with any other new or pre-existing works, and/or (d) any other work constituting a derivative of the Software under applicable  copyright laws. 

"Documentation" means all documentation licensed by OTC to Licensee hereunder, including such documentation as is: (a) authorized by OTC for general release to OTC licensees of the Software; and/or (b) provided to Licensee under an OTC maintenance and/or support program related to the Software; whether in printed, electronic, on-line, and/or other format; 

"Extranet" means a private external network operated by Licensee on a Server Computer which is used to share information contained on Licensee's intranet with external third parties over the Internet; 

"FirstClass Client Software" means the software, in object code format, which is installed on the individual personal computer, mobile device, or other device(s) of an individual user which enables authorized users to communicate with the FirstClass Server Software over a wide area or local area network, by modem, via the internet or other means.  FirstClass Client Software shall be deemed to include (but is not limited to): FirstClass Client and any subsequent versions of the FirstClass Client Software provided by OTC. 

"FirstClass Evaluation Software" means the FirstClass Introduction Business Edition software, the FirstClass Introduction Education Edition software, or any other software products released by OTC from time to time that are intended for evaluation purposes.

"FirstClass Server Software" means the software installed on a Server Computer which enables the Server Computer to communicate with and process transactions for client/user computers or devices.

"FirstClass Server Option Software" is used in conjunction with the FirstClass Server Software, in object code format, to add specific additional functionality over and above the functionality provided in the FirstClass Server Software.  FirstClass Option Software includes (but is not limited to): FirstClass Application Services, FirstClass Archiving Services, FirstClass Directory Services, FirstClass Synchronization Services, FirstClass Voice Services, FirstClass Web Services, and all updates, upgrades, and/or new versions of FirstClass Server Option Software which are provided by OTC under an applicable support and maintenance program.

"FirstClass Server Software License" means the license granted to the Licensee hereunder authorizing the Licensee to load certain FirstClass Server Software onto the Licensee's Server Computer for the purpose of allowing Session Users and Regular Users to access and use certain FirstClass Server Software.

"FirstClass Server Option Software License" means the license granted to the Licensee hereunder authorizing the Licensee to load certain FirstClass Server Option Software onto the Licensee's Server Computer for the purpose of allowing Session Users and Regular Users to access and use certain FirstClass Server Option Software.

"License Term" means the specific time period during which a specific license granted under this EULA will be effective.  All licenses granted hereunder shall either be perpetual or time-limited.  The OTC order and/or invoice documentation shall identify the License Term for each license granted hereunder.  In the event that time-limited licenses are granted hereunder, immediately upon the expiration of the time-limited License Term the Licensee shall: a) uninstall the Software which was licensed under such time-limited License Term, b) cease use of the Software and associated Documentation which was licensed under such time-limited License Term, and c) destroy all copies of the Software and associated documentation which was licensed under such time-limited License Term.    

"Regular User" means a specific individual person who: a) uses a unique login and password combination issued by the Licensee to access certain FirstClass Server Software,  and b) is authorized by Regular User License and/or Regular Option User License granted to the Licensee to use certain Software. 

"Regular User License" means a license purchased by Licensee hereunder authorizing one Regular User to access and/or use certain FirstClass Server Software.  The use of the FirstClass Server Software is limited to those specific Regular Users who have been allocated a Regular User License by the Licensee which has been granted to the Licensee hereunder;

"Regular Option User License" means a license purchased by Licensee hereunder authorizing one Regular User to access and/or use certain FirstClass Server Option Software.  The use of the FirstClass Server Option Software is limited to those specific Regular Users who have been allocated a Regular User License by the Licensee which has been granted to the Licensee hereunder;

“Community Regular User” means a specific individual person who: a) uses a unique login and password combination issued by the Licensee to access certain FirstClass Server Software,  and b) is authorized by Community Regular User License and/or Regular Option User License granted to the Licensee to use certain Software.

“Community Regular User License” means a license purchased by Licensee hereunder authorizing one Community Regular User to the terms, conditions and limitations applicable to the use of FirstClass Server Software as licensed under the Regular User License, with the exception that the entire set of functionality within FirstClass Server Software may not be accessed and used by the individuals who have been allocated such a Community Regular User License. Individuals who have been allocated a Community Regular User License may only access and use the Community functionality and features specifically identified in the Documentation.

"Session User" means a specific individual person who: a) uses a unique login and password combination issued by the Licensee to access  FirstClass Server Software,  and b) is authorized by Session User License granted to the Licensee to use FirstClass Server Software.

"Session User License" means a license purchased by Licensee hereunder authorizing one Session User to access and/or use certain FirstClass Server Software.  The use of the FirstClass Server Software is limited to a number of concurrent Session Users which is equal to or less than the number of Session User Licenses granted to the Licensee hereunder;

"Server Computer" means a single server computer or networked server computers forming a single server computer system upon which the Licensee installs and operates FirstClass Server Software.

"Software" collectively refers to FirstClass Server Software and FirstClass Client Software.

"Support Software" means all maintenance and/or support software related to the Software provided to Licensee pursuant to an OTC maintenance and/or support program, together with all related Documentation provided to Licensee pursuant to such OTC program;

"Term" means the term of this EULA as described in Section 19 hereof.


2.0	OWNERSHIP OF THE SOFTWARE

2.1	Ownership.  The Software is protected by Canadian, U.S., and international copyright laws and treaties, as well as  other laws and treaties. None of the Software is being sold.  Except for those non-exclusive licenses granted by OTC to Licensee in this EULA, all ownership, license, intellectual property, and other rights and interests in, and to, the Software shall remain solely with OTC and/or OTC's licensors. 


3.0	FIRSTCLASS SERVER LICENSES

3.1	FirstClass Server Software License.  For each FirstClass Server Software License granted to the Licensee hereunder, OTC grants to Licensee a non-exclusive, non-assignable, and non-transferable worldwide right during the License Term to install and execute the object code version of the FirstClass Server Software on one Server Computer and use related Documentation solely for the purpose of Licensee conducting Licensee's business, educational, and community operations, and to authorize Session Users and Regular Users to access and/or use same for the sole purpose of engaging in business, educational, and community practices.

3.2	User Restrictions (FirstClass Server Software).  Prior to any individual accessing and/or using FirstClass Server Software, and/or related Documentation licensed to Licensee under this EULA, Licensee shall first purchase the appropriate Session User License or Regular User License for such individual (with the exception of the FirstClass Evaluation License).  Only Session Users or Regular Users shall be permitted by the Licensee to access and/or use FirstClass Server Software and/or related Documentation licensed to Licensee hereunder, including, if Licensee so authorizes, through an Extranet operated by, or for, Licensee. No other party or parties shall access and/or use FirstClass Server Software and/or related Documentation licensed hereunder.

3.3	FirstClass Server Option Software License.  For each FirstClass Server Option Software License granted to the Licensee hereunder, OTC grants to Licensee a non-exclusive, non assignable, and non-transferable worldwide right during the License Term to install and execute the object code version of the FirstClass Server Option Software on one Server Computer and use related Documentation solely for the purpose of Licensee conducting Licensee's business, educational, and community operations, and to authorize Session Users and Regular Users to access and/or use same for the sole purpose of engaging in business, educational, and community practices.

3.4	User Restrictions (FirstClass Server Option Software).  Prior to any individual accessing and/or using FirstClass Server Option Software, and/or related Documentation licensed to Licensee under this EULA, Licensee shall first purchase the appropriate Regular Option User License for such individual. Only Regular Users shall be permitted by the Licensee to access and/or use FirstClass Server Option Software and/or related Documentation licensed to Licensee hereunder, including, if Licensee so authorizes, through an Extranet operated by, or for, Licensee. No other party or parties shall access and/or use FirstClass Server Option Software and/or related Documentation licensed hereunder. 


4.0	SESSION USER LICENSES

4.1	Session User License.  For each Session User License granted to the Licensee hereunder, OTC grants to Licensee a non-exclusive, non assignable, and non-transferable worldwide license during the License Term to  allow one concurrent Session User to have access and use certain FirstClass Server Software for the sole purpose of Session User engaging in business, educational, and community practices.


5.0	REGULAR USER LICENSES

5.1	Regular User License.  For each Regular User License granted to the Licensee hereunder, OTC grants to Licensee a non-exclusive, non assignable, and non-transferable worldwide license during the License Term to  allow one specific identifiable individual Regular User who has been allocated a specific Regular User License to have access and use certain FirstClass Server Software for the sole purpose of engaging in business, educational, and community practices.

5.2	Regular Option User License.  For each Regular Option User License granted to the Licensee hereunder, OTC grants to Licensee a non-exclusive, non assignable, and non-transferable worldwide license during the License Term to allow one specific identifiable individual Regular User who has been allocated a specific Regular Option User License to have access and use certain FirstClass Server Option Software for the sole purpose of engaging in business, educational, and community practices.

5.3	FirstClass Evaluation License.  For each FirstClass Evaluation License granted to the Licensee hereunder, OTC grants a limited number of 5 Regular User Licenses to Licensee on a non-exclusive, non-assignable, non-transferable worldwide basis during the License Term. All software related to such FirstClass Evaluation Licenses is provided "as is" without warranties of any kind, including the warranties set out in this EULA, and any other express or implied warranties.  The indemnification set out in section 17 of this EULA shall not apply to software related to such FirstClass Evaluation Licenses.  Notwithstanding any other provision in this EULA, with respect to the licensing or use of software under a FirstClass Evaluation License in no event shall OTC be liable for any direct, indirect, special, consequential, aggravated, exemplary, and/or punitive damages, nor any lost sales, lost revenue, lost profits, lost data or reprocurement amount, even if OTC has been advised of the possibility of such damages and/or losses arising and notwithstanding the failure of essential purpose of any remedy contained herein.  In addition, in no event shall OTC's liability related to the licensing and use of software under a FirstClass Evaluation License exceed one thousand US dollars.  In no event shall OTC be obligated to offer support or maintenance services with respect to Software licensed under a FirstClass Evaluation License.  


6.0	USER LICENSE PROVISIONS

6.1	User License Requirement.  Prior to any individual accessing and/or using any of the Software licensed by OTC hereunder, Licensee shall first purchase (with the exception of the FirstClass Evaluation License) the appropriate Regular User License, Regular Option User License, and/or Session User License for such individual from OTC and allocate such license to such individual by means of a record system maintained by Licensee. Inactive or disabled Regular User Licenses and Regular Option User Licenses (collectively "Regular Licenses") are deemed to be valid licenses and shall be considered formally allocated until such time as such Regular Licenses are reallocated pursuant to the provisions of section 6.2 below, or are terminated in accordance with the provisions of this EULA.  Such inactive or disabled Regular Licenses shall be deemed to be equivalent to the Licensee's other Regular Licenses and shall be counted as such in any audit or accounting of the Licensee's Regular Licenses.  For greater certainty, the fact that the Licensee considers that a Regular License is inactive or disabled, does not permit the Licensee to allow another individual to use the Software.

6.2	Reallocation.  No individual Regular License purchased hereunder may be allocated, or shared, among more than one individual. If any Regular User no longer requires access to, nor any use of, the Software on a permanent basis,  Licensee may reallocate such individual's Regular License(s) to another individual by means of a record system maintained by Licensee.   Upon such reallocation, the Licensee must fully and permanently delete the user account associated with the original Regular User.   


7.0	AUTOMATED VERIFICATION

7.1	Automated Verification.  LICENSEE ACKNOWLEDGES THAT THE SOFTWARE MAY CONTAIN A SOFTWARE KEY TO PREVENT UNAUTHORIZED INSTALLATION AND MAY CONTAIN DEVICES TO MONITOR COMPLIANCE WITH LICENSEE'S LICENSE OBLIGATIONS UNDER THIS EULA.


8.0	US GOVERNMENT END USERS-RESTRICTED RIGHTS LEGEND

8.1	Restricted Rights Only.  If the Software is being licensed directly or indirectly on behalf of the United States ("U.S.") Government, the following shall apply. For civilian agencies and departments: the Software was developed at private expense and is "restricted computer software" submitted with restricted rights in accordance with subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause of FAR 52.227-19 and its successors, and it is unpublished and all rights are reserved under the copyright laws of the U.S. For units of the Department of Defense, the Software is "commercial computer software" and "commercial computer software documentation" under the Rights in Computer Software and Computer Software Documentation clause of DFAR 227.7202-3 (a) and its successors, and all use, duplication or disclosure is subject to the license and restrictions set forth in this EULA.


9.0	AUTHORIZED COPIES

9.1	Documentation.  Licensee shall not modify the Documentation in any manner. Licensee may make copies of the Documentation provided: (a) the number of copies made does not exceed the number of individual licenses purchased by Licensee hereunder; (b) each copy is only disclosed to, and used by, a Session User or Regular User for the purpose of using Software pursuant to this EULA (and not for redistribution); and (c) no such copy is distributed and/or used to conduct training for which Licensee, or any other party, receives a fee.  

9.2	Software.  Licensee may make one complete copy of the Software for backup purposes only. No other copies of the Software shall be made by or for Licensee. Licensee shall: (a) assign an identifier number to each copy of the Software made by Licensee; and (b) maintain a system sufficient to track the: Server Computer, desktop; and/or location; of each such copy. Each copy of the Software (and/or Documentation) made by Licensee hereunder must contain the same copyright and other proprietary notices that appear on the original copy of same provided to Licensee hereunder.


10.0	RESTRICTIONS

10.1 	General Restrictions.  Licensee shall not: (a) assign, transfer, and/or redistribute the Software to any party in whole or in part; (b) rent, time share, or operate a service bureau with respect to the Software; (c) charge a fee to any party for access to and/or use of the Software; and/or (d) install, use, and/or make available the Software for any online application service provider business, internet service provider business, or other online software rental business. Licensee shall not publish or disclose results of any benchmark or other test run on the Software without OTC's prior written consent. Except as authorized herein, Licensee shall not grant any sublicense to any party or parties to access and/or use the Software.  Licensee shall not use the Software for the on-line control of aircraft, air traffic, aircraft navigation, or aircraft communications, or in the design, construction, operation or maintenance of any nuclear facility, or for medical or surgical applications, or any other application in which failure could create a situation where personal injury or death could occur.  Licensee shall not modify any of the Software except as authorized herein, nor adapt, translate, reverse engineer, decompile, disassemble, and/or otherwise attempt to discover the source code of the Software, nor take any other steps to discover the confidential information and/or trade secrets contained in the Software. 

10.2	Derivative Works.  Licensee is prohibited from creating any Derivative Works.

10.3	Interfacing and Interactive Software.  Except for Licensee created software products which interfaces with or interacts with the Software exclusively through application program interfaces licensed to Licensee by OTC, Licensee is prohibited from creating any software products that interface with, or are interactive with, the Software.


11.0	Ordering Software And User Licenses From OTC	

11.1	OTC Pricing.  OTC charges different license fees to license the different types and versions of the FirstClass Server Software and FirstClass Server Option Software. OTC reserves the right to change its license and/or other fees at any time or times. No such change shall apply to any license purchased by Licensee prior to change. 

11.2	Risk of Loss.  Title to the physical media containing the Software and all risk of loss for such media and Software shall pass to Licensee upon delivery by OTC of same to the shipping dock of the OTC facility shipping same ("Delivery Point"), at which Delivery Point the Software shall be deemed to have been delivered to the Licensee and Licensee shall be deemed to have accepted same. In the event that such physical media is lost or damaged prior to the Licensee obtaining actual physical possession of same, OTC shall immediately provide a replacement copy of said physical media free of charge.  None of the Software is being sold by OTC, either in whole or in part.


12.0	OTC SUPPORT.

12.1	OTC Support Program(s).  Licensee may purchase such standard maintenance and/or support program(s) related to the Software as OTC generally makes available.  Unless otherwise specified by OTC in writing, all Support Software and related Documentation provided to Licensee pursuant to an OTC maintenance and/or support program shall be licensed to Licensee under this EULA. If Licensee fails to pay any fees to OTC when due, OTC may suspend all maintenance and support.             


13.0	LICENSEE FEES AND PAYMENT TO OTC

13.1	Timely Payment To OTC.  The licenses granted in this EULA are conditional upon Licensee making timely and complete payment to OTC of all license fees and other amounts due to OTC hereunder, as well as Licensee making payment of all Applicable Taxes. Licensee shall make timely and complete payment to: (a) OTC of all license fees and other amounts due to OTC hereunder; and (b) the appropriate government authority of all country, federal, provincial, state, municipal, and other government excise, import, customs, sales, use, consumption, goods and services, property, value-added, internet, online, e-commerce, and other duties, levies and taxes of every kind arising out of this EULA, whether imposed on the Software or otherwise and regardless of whether any or all of same exist as at the  date of execution of this EULA by OTC and Licensee ("Effective Date") or are imposed thereafter, except such taxes as may be imposed on OTC's income ("Applicable Taxes"). If OTC is obligated to pay any Applicable Taxes on behalf of Licensee, Licensee shall reimburse OTC in full for same promptly following receipt of OTC's invoice for same. 

13.2	Over Usage.  OTC may, at any time or times, estimate and invoice Licensee for any and all license fees and other amounts payable by Licensee to OTC as a result of any access and/or use of the Software by, or through, Licensee in excess of the number and/or type of OTC individual user and/or other licenses purchased by Licensee from OTC under this EULA. Licensee shall make timely and complete payment to OTC of all such license fees and other amounts invoiced by OTC. Each invoicing and/or receipt by OTC of such license fees and/or other amounts shall be without prejudice to any rights and/or remedies which OTC may possess under this EULA, at law, in equity, and/or otherwise.

13.3	Amounts Not Included.  All Applicable Taxes, freight, insurance, and brokerage fees pertaining to Software licensed hereunder shall be in addition to each of the license fees and other amounts due to OTC under this EULA and shall be paid by Licensee to OTC in full. 

13.4	Invoicing And Payment.  OTC will invoice Licensee: (a) for Software licensed under this EULA upon shipment of same to the Delivery Point; and (b) from time for time for all license fees and other amounts due to OTC under this EULA. All license fees and other amounts due to OTC hereunder shall become payable by Licensee to OTC upon Licensee's receipt of OTC's invoice for same. Each license fee and/or other amount  due to OTC under this EULA which is not paid in full to OTC within 30 days following its due date shall bear interest at a rate of 1.5% per month (18% per annum) or the maximum amount allowed by law, if less, on such unpaid portion until fully paid. 


14.0	BOOKS, RECORDS, AND AUDITS

14.1	Audit.  Throughout the Term and for 12 months thereafter: (a) Licensee shall maintain electronic records sufficient for OTC to confirm that Licensee has complied with its user license obligations under Section 3 through Section 8 inclusive of this EULA; (b) Licensee shall make available to OTC from time to time, upon OTC's request, copies of Licensee's FirstClass Server Software login accounts; (c) OTC may, from time to time, audit Licensee's records and computer systems to ensure Licensee has complied with its obligations to OTC hereunder, and (d) Licensee shall promptly and accurately complete and return any OTC supplied self-audit questionnaire along with a certification by an officer of Licensee confirming that Licensee's responses to the questionnaire accurately and fully reflect Licensee's usage of the Software. If necessary to comply with applicable privacy legislation, Licensee shall obtain written consent from each Regular and Session User authorizing release to OTC of all such information for the purposes stated above. 

14.2	Conduct.  Each audit shall be conducted during regular business hours at Licensee's facilities and shall not interfere unreasonably with Licensee's business. OTC shall provide Licensee with prior notice of each audit.  Licensee shall co-operate with OTC's audit team, provide access to Licensee records, and allow OTC to make and remove copies of Licensee records for the above purposes. 

14.3	Noncompliance.  If any audit reveals that Licensee has failed to comply with any provision in this EULA, Licensee shall promptly: (a) remedy such noncompliance; and (b) make payment to OTC of all audit and other costs incurred by OTC in performing such audit.


15.0	LICENSEE INDEMNIFICATION

15.1	Session User and Regular Users.  Licensee shall defend, indemnify and hold harmless OTC from and against any claims from Session Users and Regular Users which relate to the Session Users and Regular Users access to and use of the Software.


16.0	LIMITED WARRANTIES

16.1	Limited Media Warranty.  OTC warrants to Licensee that the media on which the Software is delivered to Licensee will be free from defects in materials and workmanship under normal use for sixty (60) days from the date of first delivery of same to Licensee under this EULA. OTC's entire liability to Licensee, and Licensee's sole remedy against OTC, for each breach of the warranty contained in this Section 16.1 is limited to requiring OTC to replace the defective media without charge.


16.2	Limited Software Warranty.  OTC warrants to Licensee that the Software delivered to Licensee under this EULA: (a) will be free of all known viruses at the time of first delivery of same to Licensee under this EULA; and (b) will perform substantially in accordance with its accompanying user Documentation for sixty (60) days from the date of first delivery of same to Licensee under this EULA. OTC's entire liability, and Licensee's sole remedy against OTC, for each breach by OTC of the warranty contained in: (i) Section 16.2 (a) above shall be limited to requiring OTC to deliver a replacement copy of the relevant Software to Licensee free of viruses; and/or (ii) Section 16.2 (b) above shall be limited to requiring OTC, at OTC's option, to either: (1) correct the error giving rise to such breach ("Error"); or (2) help the Licensee work around the Error, the type and extent of such help to be in OTC's sole discretion; or (3) subject to Section 18 hereof, refund all license fees paid to OTC by Licensee hereunder for the defective portion of the Software.

16.3	Warranty Exclusions.  The OTC warranty in Section 16.2 shall not apply to any breach and/or Error caused by: (a) any change to the Software made by any party other than OTC; (b) accident,  neglect, or misuse by any party other than OTC; (c) Licensee's failure to provide a suitable installation and/or operating environment for the Software; (d) use of the Software on a software and/or hardware platform not approved by OTC in writing; (e) software, hardware, firmware, data, and/or technology not licensed or approved by OTC in writing; (f) any telecommunications medium used by Licensee; (g) Licensee's own computer system; and/or (h) failure of Licensee and/or user  to comply with the Documentation.

16.4	OTC DOES NOT WARRANT THAT THE MEDIA AND/OR SOFTWARE LICENSED UNDER THIS EULA WILL BE ERROR FREE, THAT EACH ERROR IN SAME WILL BE CORRECTED BY OTC AND/OR OTC'S LICENSORS, THAT THE SOFTWARE WILL OPERATE ON ANY AND ALL HARDWARE AND/OR SOFTWARE PLATFORMS, OR THAT THE SOFTWARE WILL IDENTIFY ALL KNOWN VIRUSES.  

16.5	EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED BY OTC IN SECTIONS 16.1 AND 16.2 ABOVE, ALL MEDIA AND SOFTWARE PROVIDED  TO LICENSEE UNDER THIS EULA SHALL BE PROVIDED BY OTC ON AN "AS IS BASIS".

16.6	EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED BY OTC IN SECTIONS  16.1 AND 16.2 ABOVE, OTC AND OTC'S LICENSORS  DISCLAIM ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES AND CONDITIONS OF EVERY KIND PERTAINING  IN ANY WAY TO THE MEDIA AND/OR SOFTWARE LICENSED BY OTC UNDER THIS EULA, INCLUDING WITHOUT LIMITATION, EACH WARRANTY AND/OR CONDITION OF QUALITY, MERCHANTABILITY, DESCRIPTION, OPERATION, ADEQUACY, SUITABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH USE OR ENJOYMENT, AND/OR NON INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, USAGE OF TRADE, COURSE OF DEALING, CUSTOM, OR OTHERWISE. NEITHER OTC, OR OTC'S LICENSORS, MAKE ANY REPRESENTATION, NOR PROVIDE ANY WARRANTY AND/OR CONDITION, REGARDING THE ADEQUACY OF THE MEDIA AND/OR SOFTWARE FOR ANY PARTICULAR PURPOSE, OR THE ADEQUACY OF THE MEDIA AND/OR SOFTWARE TO PRODUCE ANY PARTICULAR RESULT. 

16.7	SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES. IF ANY JURISDICTION HAVING APPLICABILITY TO THIS EULA DOES NOT PERMIT ANY SUCH EXCLUSION AND/OR LIMITATION: (A) EACH WARRANTY WHICH CANNOT BE EXCLUDED SHALL BE LIMITED IN TIME TO THE SIXTY (60) DAY PERIOD SET OUT IN SECTION 16.2 ABOVE; AND (B) OTC'S TOTAL LIABILITY TO LICENSEE FOR BREACH OF ANY AND/OR ALL SUCH WARRANTIES SHALL BE LIMITED TO THE AMOUNT STATED IN SECTION 18.3 OF THIS  EULA.  


17.0	OTC Infringement Indemnity

17.1 	Indemnity Against Claims.  Subject to the terms of this Section 17, OTC shall defend and indemnify Licensee from  any claims, suits, actions or proceedings brought against Licensee in a court of competent jurisdiction which allege that an infringement of any third party patent, copyright, and/or trade secret rights existing under the laws of Canada and/or United States (individually and collectively referred to as  a "Claim") and any judgment finally awarded in respect of such Claim, for which all avenues of appeal have been exhausted, or any final settlement of such Claim, to the extent that such Claim arises solely as a result of Licensee's use of the Software within Canada and/or the United States in accordance with the provisions of this EULA and applicable Documentation and provided: (a) the alleged and/or actual infringement has not been caused by the use of a superceded version of the Software if the infringement would have been avoided by the use of a then current unaltered release of the Software, or by the modification of the Software by any party other than Open Text, or by the combination and/or use of the Software with software, hardware, firmware, data, and/or technology not licensed to Licensee by OTC or approved by OTC in writing; and (b) Licensee promptly notifies OTC in writing within ten (10) days of Licensee first becoming aware of each such Claim; and (c) Licensee does not make any admission against OTC's interests and Licensee does not agree to any settlement of any such Claim without the prior written consent of OTC; and (d) Licensee, at the request of OTC, provides all reasonable assistance to OTC in connection with the defence, litigation, and/or settlement by OTC of each such Claim; and (e) OTC has sole control over the selection and retainer of legal counsel, as well as over the litigation and/or the settlement of each Claim.  

17.2	Licensee's Continued Use.  If the Software or its intended use become, or in OTC's opinion be likely to become, the subject of a Claim covered by the indemnity in Section 17.1 above, OTC shall obtain for Licensee a nonexclusive license to continue using the infringing portion of the Software pursuant hereto or shall replace or modify the infringing portion of the Software without reasonable degradation in functionality in order to make it non-infringing. If neither of these solutions is reasonably available as determined by OTC in OTC's absolute discretion, OTC shall refund the unamortized portion of the license fees received by OTC from Licensee under this EULA for the infringing portion of the Software, based on a three (3) year straight line amortization commencing on the date of first delivery of the Software to the Licensee under this EULA.  

17.3	OTC Liability.  OTC's total liability to Licensee for any and all infringement claims related to the Software shall be strictly limited to the obligations set out in this Section 17 and shall be subject to all of the limitation of liability provisions set out in Section 18 of this EULA. 


18.0	LIMITATION OF OVERALL OTC LIABILITY 

18.1	NOTWITHSTANDING ANY PROVISION IN THIS EULA, ANY AND ALL BREACHES BY OTC OF THIS EULA (INCLUDING FUNDAMENTAL BREACH), THE TERMINATION BY OTC OF THIS EULA, AND/OR ANY OBLIGATION THAT OTC MAY HAVE IN CONTRACT, TORT, EQUITY, AT LAW, AND/OR OTHERWISE, IN  NO EVENT SHALL OTC BE LIABLE TO LICENSEE, TO ANY USER OF THE SOFTWARE, AND/OR TO ANY OTHER PARTY OR PARTIES FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, AND/OR PUNITIVE DAMAGES; NOR (B) ANY LOST SALES, LOST REVENUE, LOST PROFITS, LOST  DATA, OR REPROCUREMENT AMOUNT; HOWSOEVER ARISING, EVEN IF OTC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND/OR LOSSES ARISING AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY CONTAINED HEREIN.

18.2	EXCEPT FOR DIRECT DAMAGE CLAIMS ASSERTED BY LICENSEE AGAINST OTC FOR BREACH OF ANY OF OTC'S OBLIGATIONS UNDER  SECTION 16 AND/OR 17 ABOVE, OTC SHALL NOT BE LIABLE TO LICENSEE, TO ANY USER OF THE SOFTWARE, AND/OR TO ANY OTHER PARTY OR PARTIES, FOR ANY DIRECT DAMAGES, COMPENSATORY DAMAGES, AND/OR OTHER DAMAGES OF ANY KIND, NOR FOR ANY LOSSES, EXPENSES, LIABILITIES, AND/OR OTHER AMOUNTS, ARISING OUT OF AND/OR RELATED IN ANY WAY TO THIS EULA, INCLUDING WITHOUT LIMITATION, THOSE ARISING OUT OF: (A) THE DELIVERY, INSTALLATION, USE, AND/OR PERFORMANCE OF THE MEDIA AND/OR SOFTWARE; (B) ANY ERROR, DEFECT, INADEQUACY, OMISSION, NON PERFORMANCE, AND/OR MALFUNCTION IN ANY AND/OR ALL OF THE MEDIA AND/OR SOFTWARE; AND/OR (C) ANY AND ALL BREACHES BY OTC (INCLUDING FUNDAMENTAL BREACH) OF THIS EULA, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT, EQUITY, AT LAW, AND/OR  ON ANY OTHER THEORY OF LIABILITY, HOWSOEVER ARISING, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY CONTAINED HEREIN.

18.3	NOTWITHSTANDING SECTION 18.2 ABOVE AND/OR ANY OTHER PROVISION OF THIS EULA, OTC'S TOTAL, CUMULATIVE, AND AGGREGATE LIABILITY TO LICENSEE: (A) ARISING UNDER THE PROVISIONS OF THIS EULA; (B) FOR ANY AND ALL BREACHES BY OTC OF THIS EULA (INCLUDING FUNDAMENTAL BREACH) AND/OR THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY CONTAINED HEREIN; (C) FOR ANY TERMINATION BY OTC OF THIS EULA; AND/OR (D) FOR ANY OTHER ACT, OMISSION, OR EVENT RELATED IN ANY WAY TO THIS EULA; SHALL NOT EXCEED THE TOTAL AMOUNT OF LICENSE FEES RECEIVED BY OTC FROM LICENSEE UNDER THIS EULA, WHETHER OTC'S LIABILITY IS BASED IN CONTRACT, TORT, EQUITY, AT LAW, AND/OR UPON ANY OTHER THEORY OF LIABILITY, HOWSOEVER ARISING. LICENSEE AGREES THAT OTC WOULD NOT HAVE ENTERED INTO THIS EULA WITHOUT THIS SECTION 18 BEING INCLUDED HEREIN.


19.0	Term And TERMINATION

19.1	Term.  The term of this EULA ("Term") shall begin on the Effective Date and shall continue in full force until terminated pursuant to this Section 19.  

19.2 	Termination For Default.  OTC may terminate this EULA  for default if Licensee: (a) becomes insolvent; (b) files any proceeding in bankruptcy or acquires the status of a bankrupt; (c) has a receiver or receiver manager appointed with respect to it or any of its assets; (d) seeks the benefit of any statute providing protection from creditors. OTC may also terminate this EULA for default if Licensee breaches any provision of this EULA provided: (i) OTC provides Licensee with written notice of breach and a ten (10) day period within which to cure such breach ("Cure Period"); and (ii) Licensee fails to cure each such breach by the expiry of the Cure Period. Any termination of this EULA shall be without prejudice to each right and/or remedy which OTC may possess against Licensee under this EULA, at law, in equity, and/or otherwise.  

19.3	Effect Of Termination.  Upon any termination of this EULA: (a) all licenses granted by OTC herein shall immediately terminate; and (b) uninstall the Software which was licensed under this EULA, (c) cease use of the Software and associated Documentation which was licensed under this EULA, and (d) destroy all copies of the Software and associated documentation which was licensed under this EULA. Sections 1, 2.1 3.3, 3.4, 3.5, 10, and 11, together with Sections 13 through 21 inclusive, of this EULA shall survive any expiry or termination of this EULA and shall continue in full force.


20.0	Miscellaneous Provisions

20.1	Confidentiality.  Licensee shall: (a) receive and maintain the Software in confidence; (b) use the same degree of care with respect to the Software as Licensee employs to protect Licensee's own confidential and/or trade secret information from unauthorized use, duplication and/or disclosure, being, in any event, a high degree of care; and (c) use, duplicate, and disclose the Software solely in accordance with the provisions of this EULA. 

20.2	Independent Contractors.  OTC and Licensee shall remain independent contractors at all times. Neither OTC, or Licensee, shall have any authority to bind the other in any manner. 

20.3	Waiver, Amendment, Assignment.  No waiver of any provision herein shall be binding upon OTC or Licensee unless set out in a written waiver signed by both parties. This EULA shall only be amended by a written document signed by OTC and Licensee stating such document is an amendment or an addendum hereto. This EULA shall not be assigned by Licensee, in whole or in part, without OTC's prior written consent.  Each reference herein to "days" means calendar days.

20.4	Licensee Terms.  All preprinted terms contained in any document used by Licensee to order software and/or user licenses from OTC are hereby fully rejected by OTC and shall have no legal effect. 

20.5	New EULA.  This EULA shall apply to all Software accompanying this EULA, or authorized by OTC in writing for use by Licensee pursuant hereto. OTC reserves the right to require Licensee to enter into a new license agreement and/or a substantially amended version of this EULA if Licensee wishes to license any further or other software and/or documentation from OTC at any time or times. 

20.6	Vienna Convention.  All provisions of the United Nations Convention On Contracts For The International Sale of Goods are hereby rejected by  the parties and excluded from this EULA in their entirety. 

20.7	Governing Law.  This EULA shall be governed by the laws of the Province Of Ontario (Canada) excluding its conflicts and/or choice of law rules. Except for injunctive relief required by OTC to protect its intellectual property, all litigation related hereto shall occur in the courts located in such jurisdiction. If Licensee or OTC commence any litigation and/or proceeding against the other related to this EULA, the prevailing party shall be entitled to an award of its reasonable attorneys fees and court costs from the other party.

20.8	Force Majeure.  Except for payment obligations pursuant to this EULA (including license fees, professional services fees, maintenance and support fees, and applicable taxes) or any obligations relating to the protection of or restrictions applicable to the other party's confidential information or intellectual property, neither party shall be liable to the other or in breach of this EULA by reason of any failure or delay in performance of its obligations to the extent such failure or delay arises (and only for the duration that the affected party is precluded from performing) as a result of acts of God, fire, disaster, explosion, vandalism, storm, adverse weather conditions, strikes, labor disputes or disruptions, epidemics, wars, national emergencies, riots, civil disturbances, shortages of materials, actions or inactions of government authorities, terrorist acts, lockout, work stoppages or other labor difficulties, border delays, failures or interruptions of utilities or telecommunications equipment or services, system failures or any other cause or event that is beyond the reasonable control of that party.

20.9	Severability.  Should any provision of this EULA be deemed contrary to applicable law and/or unenforceable by any court of competent jurisdiction, such provision shall be considered severed from this EULA but all remaining provisions shall continue in full force.

20.10	Export Laws.  The Software cannot be exported or re-exported into (or to a national or resident of): (a) Taliban controlled Afghanistan, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, or any other country to which Canada and/or the U.S. has embargoed goods; and/or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Commerce Department's Entity List, or the U.S. Commerce Department's Denied Parties list. Licensee warrants to OTC that Licensee is not located in, under the control of, or a national or resident of any country described above, nor a party named on any list described above. Additional Canadian and/or U.S. export restrictions may apply to portions of the Software. Licensee shall comply with all applicable Canadian and/or U.S. laws and/or regulations pertaining to the Software, including all export laws, regulations, and/or directives, and comply with all laws and regulations in Licensee's jurisdiction and any other location related to the import, export, transfer, shipping, and/or use of the Software.

20.11	Third Party Software.  The Software includes software and/or documentation licensed by OTC from third parties.  All trademarks relating to the Software shall remain the property of OTC, OTC's licensors, and/or their respective owners. If any such third party software is to be licensed by OTC to Licensee pursuant to this EULA on license terms different than that contained in this EULA, Licensee and OTC shall enter into a written amendment to this EULA setting forth such different license terms.  Licensee acknowledges that each breach by Licensee of any provision of this EULA may result in any and/or all of OTC's licensors suffering loss or damage.

20.12	Press Release.  Licensee agrees OTC may use and disclose Licensee's name and the nature of this EULA in an OTC public press release.

20.13	No Enterprise License.  This EULA is not an enterprise license agreement. The Software shall not be installed, stored or executed on any server, desktop, or other computer operated by any of Licensee's parent, subsidiary, and/or affiliated companies or by any other party.

20.14	UCITA Not Applicable.  Licensee and OTC agree that the Uniform Computer Information Transactions Act, or any version thereof, adopted by any state located in the United States, in any form ("UCITA") shall not apply to this Agreement. To the extent that UCITA is applicable, the parties agree to opt out of the applicability of UCITA pursuant to the opt-out provisions contained therein.

20.15	Attribution Notices.  Within the object code, source code, and the graphical user interfaces of the Software, OTC has inserted various ownership, attribution and/or branding notices including, but not limited to: a) notices attributing copyright and trademark ownership to OTC, and b) instances of branding which reference "Open Text", "FirstClass", "Powered by FirstClass" and other OTC trademarks (all such notices and instances collectively referred to as "Notices").  Without prior written consent of OTC, the Licensee shall not: a) remove, modify, obscure, re-size or re-locate Notices, or b) cause any Notices to become not visible to any users of the Software.

20.16	Language.  The parties agree that this EULA and all documents contemplated herein be written in English.  Any translation provided by OTC of this EULA is for convenience only, and in the event of a conflict between the English version and any version in any other language, the English version shall prevail.


21.0	ENTIRE EULA.		

21.1	Entire License Agreement.  This EULA, together with each written schedule, written amendment, and/or written addendum to this EULA between OTC and Licensee, sets forth the entire agreement between OTC and Licensee with respect to the subject matter hereof, and supersedes all prior oral and written agreements and understandings between the parties relating thereto.  Neither party shall be bound by or be liable for any alleged representation, promise, or inducement not expressly stated herein.


