End User License Agreement

1. DEFINITIONS

For the purposes of this Agreement:
1.1. “Affiliate” means, with respect to any entity, any other entity directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such entity. For the purposes of this definition, an entity shall
control another entity if the first entity: (i) owns, beneficially or of record,
more than 50% of the voting securities of the other entity; or (ii) has the
ability to elect a majority of the directors of the other entity;
1.2. “Cloud Software” means the Software made available to you via the
internet on a software-as-as-service basis for the term set out in the Order
Form;
1.3. “Customer Data” means all the electronic data or information,
regardless of the format, that is (i) submitted by you, entered or
processed via the Software; or (ii) provided by you to LATENCETECH to be
used in connection with the Software;
1.4. “Documentation” means all documents, user manuals or other
information, available in writing, online or otherwise, relating to the
Software and the Support Services;

1.5. “Enhancements” means any new versions, releases, updates, upgrades
or other enhancements to the Software, which LATENCETECH, in its sole
discretion, may make generally available to you;
1.6. “Fees” means the fees set out in the Order Form to be paid by you for the
subscription to the license of the Software and the provision of Support
Services;
1.7. “Force Majeure” means any unavailability caused by circumstances
beyond a party’s reasonable control, including acts of God, acts of
government, floods, fires, earthquakes, civil unrest, acts of terror, strikes
or other labor problems, Internet service provider failures or delays,
computer hacking, security breach, or denial of service attacks or power
failure that ordinary commercial efforts could not reasonably have
prevented;
1.8. “Intellectual Property” means any and all ideas, concepts, inventions,
methods, processes, know-how, works, software, computer programs and
other computer software (including all source and object codes,
algorithms, architectures, structures, user interfaces including display
screens, lay-out and development tools), databases, designs, plans,
drawings, brochures, website content, sales and advertising literature and
other marketing materials, and any improvements thereon or applications
or derivative works thereof, and all other forms of intellectual property, all
whether or not registered or capable of such registration;

1.9. “Intellectual Property Rights” means any and all patents, copyrights,
trademarks, trade names and other proprietary rights, and all registrations
or applications in relation to the foregoing;

1.10. “Malicious Code” means viruses, worms, time bombs, Trojan horses and
other harmful or malicious code, files, scripts, agents or programs;

1.11. “On-premise Software” means the Software made available to you for
the subscription term (time-based term e.g. year, quarter, month, day,
hour) set out in the Order Form, whether hosted by you or a third party
(including a Reseller) on your behalf;

1.12. “Order Form” means the document provided by LATENCETECH (or your
Reseller) evidencing your purchase of the Software Subscription, which
may specify among other things, the license term, the components, the
number and type of Users and the applicable Fees; each Order is
incorporated into and becomes a part of this Agreement. If you want to
make any change to an Order Form (e.g., increase the number of Users),
you will need to place a new Order Form or obtain LATENCETECH’s prior
written consent through other means;

1.13. “Personal Data” means any information relating to an identified or
identifiable natural person (each, a “Data Subject”); an identifiable
natural person is one who can be identified, directly or indirectly, in
particular by reference to an identifier such as a name, an identification
number, location data, an online identifier or to one or more factors
specific to the physical, physiological, genetic, mental, economic, cultural
or social identity of that natural person;

1.14. “Reseller” means an independent third party authorized or accredited by
LATENCETECH to distribute the Software;

1.15. “Software” means the LATENCETECH software referred to in the
applicable Order Form, which may be further specified as either Cloud

Software or On-premise Software. For greater certainty, all Enhancements
shall form part of the Software;

1.16. “Software Data” means all data that relate to the operation or
configuration the Software;

1.17. “Support Services” means the support and maintenance services
provided by LATENCETECH (or your Reseller if you have purchased
Support Services from a Reseller) in connection with the Software
Subscription.

1.18. “User” means any of your or your Affiliates’ employees, consultants or
agents (i) who is authorized by you or your Affiliates to access and use the
Software; and (ii) who has been supplied user identification codes and
passwords by you/your Affiliates.

2. LICENSE AND USE OF SOFTWARE

2.1. License Grant. Subject to the terms of this Agreement and the Order
Form, LATENCETECH hereby grants you a non-exclusive, personal, non-
transferable license (except to your Affiliates) without the right to
sublicense (except to your Affiliates and the Users):
(a) to access, use and make a reasonable number of copies of the
Documentation in connection with your use of the Software; and
(b) for On-premise Software, to use such Software for the licensed term
(time-based term) for which LATENCETECH has received your Fees;
or
(c) for Cloud Software, to access and use the Software for the term for
which LATENCETECH has received your Fees;
in each case for your own business purposes and data and those of your
Affiliates, and for no other purposes.
The licenses granted under paragraphs (a) and (b) above include the right
to make a reasonable number of archival (i.e., not active) copies of the
Software in machine-executable form as reasonably required for back-up
and disaster recovery purposes (and for the disaster recovery
service/system). Your archival copy of the Software may be hosted by a
third party disaster recovery supplier (which may be used in the event of
inability to use the Software caused by a force majeure event or for
purpose of testing disaster recovery procedures), provided that such
Software copy contains all of LATENCETECH’s copyright or other
proprietary rights notices as indicated on the Software.

2.2. Enhancements. For On-premise Software, Enhancements will be made
available to you by LATENCETECH or your Reseller, if you have purchased
a subscription license that includes Support Services or have otherwise
purchased Support Services. For Cloud Software, all any Enhancements
shall be made available to you as they are made generally available to
LATENCETECH’s Cloud Software customers.

2.3. Purchase through Reseller. If you have purchased the Software from a
Reseller, (i) your access and use of the Software (together with any other
related services that it provides to you) are subject to the terms of the
agreement entered into between you and the Reseller, and (ii) the
Reseller (and not LATENCETECH) is fully responsible and liable for the

provision of the Software. If there is any conflict between this Agreement
and the agreement you have with your Reseller, then the provisions of the
separate agreement with the Reseller will apply in relation to the Software
(and any other services provided to you by the Reseller) but you will still
remain responsible and liable to LATENCETECH for your compliance with
this Agreement.

2.4. Functionalities. You acknowledge that your use of the Software in
accordance with the terms of this Agreement is neither contingent on the
delivery of any future Enhancements to or functionality or features of the
Software, nor dependent on any oral or written public comments made by
LATENCETECH regarding future functionality or features of the Software.

 

2.5. Your Responsibilities. You are responsible (i) for the means by which
you acquired Customer Data, the accuracy, quality, legality and use of
Customer Data; (ii) for implementing reasonable efforts to prevent
unauthorized access to or use of the Software (including, but not limited
to, by preserving the confidentiality of the Users’ user identifications and
passwords and for restricting or protecting access to your equipment
(hardware and software), whether operated and/or maintained by you or
by third parties on your behalf, required to access and use the Software),
and notifying LATENCETECH promptly of any unauthorized access or use
of the Software which may have an impact on the Software or
LATENCETECH; (iii) using the Software only in accordance with the
Agreement and the Documentation and applicable laws and government
regulations; and (iv) purchasing and maintaining in good working order of
all your equipment (including network equipment and systems, whether
operated and/or maintained by you or by third parties on your behalf),
software and Internet connection necessary to access and use the
Software, and complying with any third party licence terms or other third
party agreements in relation to your use of such equipment, software and
Internet connection.

 

2.6. Users. You are responsible for all use and misuse of the Software by the
Users or their breach of the terms of the Agreement, and shall indemnify
LATENCETECH for any damages, costs and expenses suffered as a result
of such use, misuse or breach.

 

2.7. Restrictions. Any right to use or exploit the Software not expressly
licensed to you in this Agreement is strictly prohibited, and all rights not
expressly set out in this Agreement are reserved by LATENCETECH. You
will take all reasonable measures to prevent the Software to be accessed
or used by anyone other than the Users. Except as provided herein, you
may not
(i) loan, rent, lease, transfer, convey, assign, sell, distribute the Software
or grant sublicenses for the Software or any part thereof; (ii) modify,
combine or distribute the Software (or any part thereof) with any other
software or code in a manner which would subject the Software to open
source license terms; (iii) use the Software to store or transmit infringing,
libellous, or otherwise unlawful or tortious material, or to store or transmit
material (including Customer Data) in violation of third party privacy
rights; (iv) use the Software to store or transmit Malicious Code; (v)
interfere with or disrupt the integrity or performance of the Software; (vi)
copy, frame or mirror any part or content of the Software, other than

copying or framing on your own intranets or otherwise for your own
internal operational purposes; (vii) reverse engineer, decompile or
disassemble the Software or attempt to gain unauthorized access to the
Software or LATENCETECH’s systems or networks; or (ix) use or access the
Software in order to build a competitive product or service, or copy any
features, functions or graphics of the Software. In addition to the above,
access and use of the Software may be subject to restrictions and/or
specifications (including, without limitation, with respect to the maximum
cloud outbound data transfer monthly allowance) set forth in the
Documentation.

2.8. Security. It is your responsibility (i) to preserve the confidentiality of the
Users’ user identifications and passwords; (ii) to restrict and protect
access to your equipment (hardware and software) required to access and
use the Software; (iii) to have and maintain in place Malicious Code
protection software and security for all of its systems and data, including
firewalls, passwords, physical security, access control policies.

2.9. Data Backup.
(a) For On-premise Software, you are responsible to have and maintain
in place industry standard backup/disaster recovery processes for
Customer Data and Software Data, including for reconstruction of
lost or altered source data.
(b) For Cloud Software, (i) you are responsible to keep copies (in any
relevant format) of all source data that is submitted/entered by you
or your representatives on the Software and to have and maintain in
place industry standard backup/disaster recovery processes for
Customer Data (including for the reconstruction of lost or altered
source data) and (ii) LATENCETECH is responsible to have and
maintain in place industry standard backup/disaster recovery
processes for Software Data; provided, however, that LATENCETECH
shall only be obligated to provide you the same backup/disaster
recovery standards as those provided by LATENCETECH’s hosting
providers.

2.10. Personal Data. You represent and warrant that (i) you will comply all
applicable data protection laws; (ii) you are authorized pursuant to all
applicable data protection laws to disclose any Personal Data which you
disclose or otherwise provide to LATENCETECH; and (iii) you have obtained
all necessary consents and rights and provide all necessary information
and notices to Data Subjects in order for (a) you to disclose Personal Data
to LATENCETECH; (b) LATENCETECH to process personal data the
purposes set out in this Agreement; and (c) LATENCETECH to disclose
Personal Data to its Affiliates, its and their agents, and any other person in
order to meet any obligations under this Agreement or under applicable
law.

2.11. Compliance. You must keep records relating to all use of the Software.
LATENCETECH (or its agents) may, at its expense, audit such records to
verify compliance with the terms of this Agreement; provided that: (i)
LATENCETECH gives you at least 5 days advance written notice of the
audit; (ii) LATENCETECH (or its agents) conducts the audit during normal
business hours ; and (iii) LATENCETECH conducts no more than one such
audit in a given calendar year.

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3. SUPPORT SERVICES

3.1. Scope.
(a) Support Services Purchased From LATENCETECH. If you have
purchased a subscription license of an On-premise Software or
Cloud Software (which include Support Services) from
LATENCETECH, information about such Support Services is set out
in the separate agreement between you and LATENCETECH which
sets out the terms of the Support Services.
(b) Support Services Purchased from a Reseller. If (i) you have
purchased a subscription license of an On-premise Software or
Cloud Software (which include Support Services) from a Reseller or
(ii) you have otherwise purchased Support Services from a Reseller,
such Support Services will be provided to you in accordance with
the Reseller’s own documentation and instructions and the
provisions of Section 3 will not apply to you.

3.2. Limitations. Where LATENCETECH provides Support Services directly to
you, LATENCETECH is under no obligation to provide such Support
Services where errors arise from (i) use of any third party equipment,
hardware, software or communication lines; (ii) the modification of the
Software by you or a third party (other than an third party authorized by
LATENCETECH); (iii) your failure to fulfil or observe your obligation in
Section 2 of this Agreement; or (iv) incorrect use of the Software or
operator error. The foregoing limitations are in addition to any other
limitations/restrictions set out in the separate agreement between you and
LATENCETECH or your Reseller, as applicable, which sets out the terms of
the Support Services.

3.3. Warranty. LATENCETECH warrants that provided LATENCETECH has
received payment of all required Fees for Support Services and where
LATENCETECH provides Support Services directly to you, LATENCETECH
will use qualified personnel to provide Support Services in a professional
manner consistent with industry standards. Your sole remedy under this
Section 3 is limited to LATENCETECH’s re-performance of the Support
Services giving rise to your claim. You may request that LATENCETECH
performs additional consultancy, implementation or other services, which
LATENCETECH may at its discretion agree to do, subject to and on the
terms of a separate services agreement.

3.4. Cloud Software Availability. Subject to service availability from
LATENCETECH’s hosting providers LATENCETECH will use reasonable
commercial efforts to ensure that you have access to the Cloud Software
at all times. Notwithstanding the foregoing, you acknowledge and agree
that LATENCETECH may suspend your access to or use of the Cloud
Software (i) for routine maintenance, (ii) if LATENCETECH detects fraud, a
security breach or any other similar threat that causes or that could cause,
in LATENCETECH’s reasonable opinion, damage to the Cloud Software or
Customer Data, or (iii) if LATENCETECH’s hosting providers suspend their
services to LATENCETECH. Any suspension by LATENCETECH of the Cloud
Software in application of this Section shall not release you from your
payment obligations under the Agreement. LATENCETECH will use
commercially reasonable efforts (i) to minimise interruptions for routine

maintenance and to schedule such maintenance at non-peak hours and (ii)
for fraud, security breach or other threat, to restore your access to the
Cloud Software as soon as possible after the suspension. In addition, you
acknowledge and agree that as the Cloud Software is accessible via the
internet, it is therefore subject to limitations, security vulnerabilities,
delays and other problems inherent to the operation of the internet and
other electronic communications and that LATENCETECH and/or its
licensors will not be liable or responsible to you for any such delays,
interruptions, security problems, delivery failures or other damage
resulting from such problems.

4. INTELLECTUAL PROPERTY

4.1. Customer Data. LATENCETECH acknowledges and agrees that you own
all rights, titles, and interests in Customer Data, including all Intellectual
Property Rights related thereto.

4.2. LATENCETECH Intellectual Property. LATENCETECH (or its licensors or
suppliers) owns all right, title and interest in and to (i) the Software, the
Software Data and the Documentation; (ii) the trademarks associated with
the Software or LATENCETECH; and (iii) all Intellectual Property and
Intellectual Property Rights related to any of the foregoing. You will
acquire no rights or licenses to the Software or any other LATENCETECH
property unless otherwise expressly provided in the Agreement.

 

4.3. Feedback. LATENCETECH owns all right, title and interest in and to any
suggestions, requests or recommendations for improvements or
enhancement to the Software that you (including any of the
Representatives) may, alone or jointly with LATENCETECH, propose or
make during the term of the Agreement (collectively, “Feedback”). You
hereby irrevocably (i) assign all your right, title and interest in and to the
Feedback to LATENCETECH; and (ii) waive in favour of LATENCETECH, its
successors and assigns any and all moral rights that you have or may
have in the Feedback in each jurisdiction throughout the world, to the
fullest extent that such rights may be waived in each respective
jurisdiction.

4.4. Notices. You shall not remove any Intellectual Property Rights notice that
appear on the Documentation or displayed through or embodied in the
Software.

5. FEES AND PAYMENT

5.1. Fees. You must pay the relevant fees and any other charges arising under
this Agreement as stated on the Order Form or LATENCETECH’s invoice. If
you purchased your Software subscription or Support Services from a
Reseller, Fees and payment terms are set out in the agreement with your
Reseller and such terms prevail over the terms of this Section 5. If at any
time during the term of your Software subscription you want to increase
the number of subscriptions (e.g. QoSAgent, Reflector, etc.) which can
access the Software or to access additional components or modules in the
Software, you must pay all applicable fees.

5.2. Payment Terms. Unless otherwise set out in the Order Form or
LATENCETECH’s invoice (or if you have purchased the Software from a

Reseller, as set out in the Reseller’s purchase order or invoice), (i) Fees for
a time-based subscription license of an On-premise Software or for Cloud
Software, shall be paid in full at the beginning of each subscription period;
and (iii) all Fees for Support Services must be paid annually in advance
(except where time-based term stats otherwise). All Fees are non-
cancellable and non-refundable even if you cancel or choose not to renew
your Software license or Support Services. All payments must be made in
the full amount, free of any deductions or withholdings and without
exercising any right of set-off.

5.3. Price Increase. If you purchased a time-based subscription license of an
On-premise Software or Cloud Software, LATENCETECH may not increase
the license fees more than once in any given calendar year.
LATENCETECH will use its reasonable endeavours to give you (or your
Reseller if you purchased the subscription license from a Reseller) 60
days’ written notice prior to your next renewal date of any price increase.
If you continue to use the Software after the fee change takes effect, you
will be deemed to (i) agree to the increase in the fees and (ii) authorize
LATENCETECH (or your Reseller, as applicable) to collect the new fees
amount using the agreed payment method.

5.4. No Payment. If LATENCETECH has not received payment of the
applicable fees either from you or from your Reseller (as the case may be)
or if LATENCETECH has received notification from your Reseller of your
non-payment of the same, then without prejudice to LATENCETECH’s other
rights and obligations LATENCETECH may suspend or terminate your
license.

5.5. Interest. In addition to any other rights or remedies of LATENCETECH,
any amount not paid by you when due shall bear interest at the rate that
is the lesser of 1.5% per month or the maximum rate allowable by law.

 

5.6. Currency. All invoices or order forms to you and payments from you to
LATENCETECH will be in the currency specified on your invoice or order
form.

5.7. Taxes. Fees quoted do not include applicable sales taxes but all
applicable taxes will be included in the amount LATENCETECH or your
Reseller charges you, and you shall be responsible for the payment of all
such taxes.

6. TERM AND TERMINATION

​

6.1. Term – License
(a) Term. This Agreement is effective from the date you have
accepted this Agreement and continues until terminated in
accordance with this Section 6.
(b) Termination – Subscription License (On-premise Software
and Cloud Software). If you acquire a time-based subscription
license for On-premise Software or Cloud Software, this Agreement
will remain in effect for an initial term of one (1) year or otherwise
as set out in the applicable Order Form (the “Initial Term”). This
Agreement shall automatically continue to renew thereafter for
successive one-year periods (each, a “Renewal Term”) on the

terms and conditions contained herein. You may choose not to
renew your Initial Term or subsequent Renewal Term (as the case
may be) by providing at least 60 days’ prior written notice of your
non-renewal to LATENCETECH or your Reseller from which you
purchased the Software.

6.2. Term – Support Services
(a) If you have purchased Support Services from LATENCETECH, the
initial period for such Support Services will be for one (1) year or
otherwise set out in the applicable Order Form (the “Support
Initial Term”). The Support Initial Term shall automatically
continue to renew thereafter for the successive one-year periods
(each, a “Support Renewal Term”) on the terms and conditions.
You may choose not to renew your Support Initial Term or
subsequent Support Renewal Term (as the case may be) by
providing at least 60 days’ prior written notice of your non-renewal
to LATENCETECH.
(b) If you have purchased Support Services from a Reseller, the term of
such Support Services is set out in the agreement with your Reseller
and your right to terminate such Support Services are subject to the
terms of such agreement.
(c) If you terminate the provision of your Support Services, you will still
have the right to continue to use the Software in accordance with
the terms of this Agreement.

6.3. Termination. Each Party may terminate this Agreement at any time: (i)
if the other Party fails to perform any of its obligations under this
Agreement and such failure is not remedied within 30 days from written
notice thereof having been given to such defaulting Party; or (ii) upon
written notice to the other Party, if such other Party takes or is required by
any person with proper authority to take, any of the following actions: (a)
an assignment, composition or similar act for the benefit of creditors; (b)
an attachment or receiving of assets; (c) the filing of a petition for
bankruptcy, insolvency or relief of debtors or the institution of any
proceedings relating to bankruptcy, insolvency or relief of debtors; (d)
committing or threatening to commit any act of bankruptcy; or (e) a
winding-up, liquidation or dissolution of the business pursuant to an order
of a court of competent jurisdiction.

6.4. Effect of Termination. At the expiry or termination of this Agreement:
(a) LATENCETECH shall be entitled to the payment of any remaining
Fees accrued as of the date of termination;
(b) If you have purchased On-premise Software, you shall uninstall the
Software within 5 days of the expiry or termination of this
Agreement and certify LATENCETECH that you have done so; and
(c) If you have purchased Cloud Software, your access to the Software
will immediately terminate.

6.5. Recourse. The termination of this Agreement for any reason whatsoever
will in no way affect either Party’s rights and recourse against the other
Party, at law or in equity, for damages for failure to discharge an
obligation under this Agreement.

​

6.6. Survival. Sections 4.2, 4.3, 6.4, 6.6, and 7 to 10 shall survive any
termination or expiration of this Agreement.

7. CONFIDENTIALITY
 

7.1. Use and Protection. You acknowledge that the Software contains
intellectual property rights and know-how, system design and proprietary
information which is the exclusive and valuable property of LATENCETECH
or its Affiliates (“Confidential Information”). You will not, without the
prior written consent of LATENCETECH, use the Confidential Information
other than in connection with your access or use of the Software. You will
treat the Confidential Information as confidential to and as the property of
LATENCETECH and take reasonable and customary precautions to protect
the confidential nature of the Confidential Information and prevent
disclosure of such Confidential Information to any such third party.

 

7.2. Limited Disclosure. You will not disclose the Confidential Information to
any third party. You may only disclose Confidential Information to your
personnel only to the extent necessary and to those personnel having a
legitimate need to know. Prior to disclosing the Confidential Information to
your personnel, you shall ensure that (i) they are bound by confidentiality
obligations that are substantially similar to those contained in this
Agreement; and (ii) they are made aware that all Confidential Information
is the confidential and proprietary material of LATENCETECH or its
Affiliates, and that such personnel owe a duty of confidence to
LATENCETECH. You shall remain responsible to LATENCETECH for any
disclosure or use of the Confidential Information by your personnel
contrary to the provisions hereof.

 

7.3. Exception. The restrictions imposed by this Section 7 shall not apply to
the disclosure of Confidential Information which (i) is now, or which
hereafter, through no act or failure to act on your part, becomes generally
known or available to the public without breach of this Agreement; (ii) is
known to you at the time of disclosure of such Confidential Information
provided that you can satisfactorily demonstrate such prior knowledge by
appropriate written records antedating the disclosure and that such
knowledge was not gained from third parties through breach of secrecy;
(iii) is hereafter furnished to you in good faith by a third party without
breach by such third party, either directly or indirectly, of an obligation of
secrecy to LATENCETECH; or (iv) is approved for such use or disclosure by
written authorization of LATENCETECH.

 

7.4. Legal Disclosure. If you receive a request or is required by law to
disclose all or any part of the information contained in LATENCETECH’s
Confidential Information, you shall, to the extent permitted by law (i)
immediately notify LATENCETECH of the existence of and the terms and
circumstances surrounding the request or requirement; (ii) consult with
LATENCETECH on the advisability of taking legally available steps to resist
or narrow the request or lawfully avoid the requirement; and (iii) at
LATENCETECH’s request and cost, take all necessary steps to seek a
protective order or other appropriate remedy.

 

8. WARRANTY DISCLAIMER
 

8.1. Disclaimer. EXCEPT TO THE EXTENT SET FORTH IN THIS AGREEMENT,
LATENCETECH EXPRESSLY DECLINES, ON ITS OWN BEHALF AND ON
BEHALF OF ITS AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS,
DIRECTORS, OFFICERS, REPRESENTATIVES, VENDORS AND LICENSORS,
ANY AND ALL EXPRESS, LEGAL OR IMPLICIT REPRESENTATIONS,
WARRANTIES AND CONDITIONS NOT CONTAINED HEREIN, INCLUDING
REPRESENTATIONS, WARRANTIES AND CONDITIONS OF
MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE,
QUALITY AND ACCURACY. IN PARTICULAR, LATENCETECH EXPRESSLY
DECLINES THE FOLLOWING AND MAKES NO REPRESENTATION OR
WARRANTY IN THESE REGARDS: (I) THE FACT THAT THE SOFTWARE WILL
MEET YOUR OPERATIONAL REQUIREMENTS; (II) THE FACT THAT THE
OPERATION OF THE SOFTWARE WILL BE ERROR-FREE OR
UNINTERRUPTED OR, THAT THE RESULTS OBTAINED FROM THEIR USE
WILL BE ACCURATE OR RELIABLE; AND (III) THE FACT THAT ALL
PROGRAMMING OR SERVICE ERRORS CAN BE CORRECTED OR FOUND IN
ORDER TO BE CORRECTED.

 

8.2. Other Limitations. LATENCETECH will have no responsibility under these
limited warranties for any Software that has been modified, lost, stolen, or
damaged by accident, abuse, or misapplication. No employee, agent, or
representative of LATENCETECH, nor any Reseller (including your Reseller)
or any other third party, is authorized to make any warranty with respect
to the Software, except those expressly stated in this Agreement, and you
may not rely on any such unauthorized warranty. You acknowledge and
agree that you have chosen your Reseller and that such Reseller is an
independent party and not an agent of LATENCETECH.

9. LIMITATION OF LIABILITY; INDEMNIFICATION

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9.1. Exclusion of Certain Damages. LATENCETECH shall not be liable and
assumes no responsibility for any losses or damages arising, directly or
indirectly, from your omission to comply with or breach of your obligations
hereunder. You acknowledge and understand that software is inherently
complex and may not be free from errors and that you have been advised
to verify the work produced by the Software.

9.2. Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED
BY LAW, IN NO EVENT MAY LATENCETECH, ITS AFFILIATES, OR ITS AND
THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, REPRESENTATIVES,
AGENTS, SUPPLIERS OR LICENSORS (I) BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, EXTRAORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR
EXEMPLARY DAMAGES OR (II) FOR LOSS OF REVENUE OR PROFITS, LOSS
OF TIME, LOST OF OR CORRUPTION TO DATA, LOSS OF USE, BUSINESS
INTERRUPTION, DEPLETION OF GOODWILL OR ANY OTHER FINANCIAL
LOSS, ARISING DIRECTLY OR INDIRECTLY FROM THE AGREEMENT, OR
CAUSED BY THE SOFTWARE, OR THE MISUSE OR INABILITY TO USE THE
SOFTWARE, OR THE DOCUMENTATION, EVEN IF LATENCETECH HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LATENCETECH SHALL
NOT BE LIABLE TO YOU FOR ANY DAMAGES OR COSTS INCURRED IN
CONNECTION WITH OBTAINING SUBSTITUTE SOFTWARE, RECEIVING
SUPPORT SERVICES, CLAIMS MADE AGAINST YOU BY OTHERS, OR SIMILAR
COSTS. THIS FOREGOING LIMITATION OF LIABILITY WILL APPLY

REGARDLESS OF THE FORM OF ACTION: WHETHER IN CONTRACTUAL
LIABILITY, APPLICATION OF THE WARRANTY, TORT, NEGLIGENCE,
PRODUCT LIABILITY OF MANUFACTURERS AND VENDORS, STRICT CIVIL
LIABILITY OR UNDER ANY OTHER LEGAL THEORY.

9.3. Amount Limitation. THE OVERALL LIABILITY OF LATENCETECH IN
RESPECT OF ANY OF YOUR CLAIMS OR THE CLAIMS OF ANY OTHER
PERSON IS LIMITED TO AN AMOUNT EQUAL TO (IF YOU HAVE PAID FOR A
SUBSCRIPTION LICENSE OF AN ON-PREMISE SOFTWARE OR A CLOUD-
SOFTWARE) THE FEES ACTUALLY PAID BY YOU DURING THE 12-MONTH
PERIOD PRECEDING THE EVENT FROM WHICH THE LIABILITY ARISES.

 

9.4. Claims for Infringement. If all or any portion of the Software is, in
LATENCETECH’s opinion, likely to or otherwise does become the subject of
a claim for infringement of any Intellectual Property Rights, LATENCETECH
may, at its option and its sole cost and expense, either: (i) procure in your
favour the right to use the same as contemplated herein; (ii) modify the
same to become non-infringing provided that any such modification does
not materially impair the ability of Software, or any part thereof to
conform to and perform in accordance with the Documentation or the
intended use of the Software; or (iii) replace the infringing part of the
Software with compatible, feature and functionally equivalent, and non-
infringing products or documentation, as the case may be. If in
LATENCETECH’s reasonable opinion it is not commercially reasonable for it
to comply with any of (i), (ii) or (iii) above, LATENCETECH may upon
written notice to you, terminate this Agreement. and reimbursed you for
the affected Software. The remedies set forth in this Section 9.4 are
LATENCETECH’s sole obligations and your sole remedy in the event of a
potential infringement or a claim for infringement relating to the Software.

 

9.5. Indemnification. You shall defend LATENCETECH, its Affiliates, and their
respective shareholders, officers, directors, employees, subcontractors,
agents, suppliers and licensors (“Customer Indemnified Parties") against
any claim, demand, suit or proceeding made or brought against a Customer
Indemnified Party by a third party alleging that Customer Data or Customer
use of the Software is in breach of this Agreement, infringes or
misappropriates its Intellectual Property Rights or other rights of a third party
or violates applicable law (a “Claim”), and shall indemnify and hold harmless
the Customer Indemnified Parties for any loss, claim, damages, cost,
expenses, and other liability (including reasonable lawyers' and expert's fees
and expenses) that any Customer Indemnified Party incurs a result of or in
connection with such Claim. LATENCETECH must: (i) promptly give you
written notice of the Claim; (ii) give you sole control of the defense and
settlement of the Claim (provided that you may not settle any Claim unless
the settlement unconditionally releases the Customer Indemnified Parties of
all liability); and (iii) provide to you all reasonable assistance, at your expense.

 

9.6. Force Majeure. If LATENCETECH performance is prevented, hindered or
delayed by reason of any Force Majeure event, LATENCETECH shall be
excused from performance to the extent that it is prevented, hindered or
delayed thereby during the continuance of such causes, and such
LATENCETECH’s obligation hereunder shall be suspended for so long and
to the extent that such causes prevent or delay its performance.
LATENCETECH shall give you written notice of the commencement of a
Force Majeure event. If LATENCETECH is unable to resume performance

within 30 days after giving notice or fails within that period to give
reasonable assurance that it will resume performance within further 15
days, then you may terminate this Agreement upon a 15-day written
notice.

10. GENERAL

​

10.1. Amendment to the Agreement.
(a) On-premise Software. For On-premise Software, LATENCETECH
may, from time to time, ask you to accept changes to this
Agreement upon opening the On-premise Software or any of its
Enhancements, in which case, your continued use of the On-premise
Software shall be conditional upon your acceptance of those
changes. The most recent version of this Agreement can be found at
https://www.latencetech.com/eula.
(b) Cloud Software. For Cloud Software, LATENCETECH reserves the
right, at any time and without prior notice, to modify or replace any
of the terms of this Agreement. Any change to the most recent
version of this Agreement can be found at
https://www.latencetech.com/eula. It is your responsibility to check
the Agreement periodically for changes. Your use of the Cloud
Software following the posting of any changes to the Agreement
constitutes acceptance of those changes. If there are any significant
changes to the Agreement that materially affect your relationship
with us, you will be notified by email or upon opening the Cloud
Software.

10.2. Independent Contractors. This is an agreement between separate
legal entities and neither party will represent itself as agent, servant,
franchisee, joint venture or legal partner of the other. Neither Party shall
have the right to bind the other to any agreement or to incur any
obligation or liability on behalf of the other party.

10.3. Export. Regardless of any disclosure made by you to LATENCETECH (or
your Reseller) of an ultimate destination of the Software, the
Documentation or LATENCETECH Confidential Information, you
acknowledge that the Software, the Documentation and LATENCETECH
Confidential Information may be subject to export laws and regulations.
You shall ensure that your exports are in compliance with such export laws
and regulations. In addition, (i) you shall not permit your Users of the
Software to access or use the Software in any embargoed country or in
violation of any export law or regulation and (ii) you are responsible for
complying with all applicable governmental regulations of any foreign
countries with respect to the use of the Software, the Documentation and
LATENCETECH Confidential Information outside of Canada.

10.4. Governing Law; Jurisdiction. This Agreement will be governed by,
interpreted and construed in accordance with the laws of the Province of
Québec, Canada and the laws of Canada applicable therein, other than
rules governing conflicts of laws. Each party agrees that any dispute
arising out of or in connection with this Agreement, including any question
regarding its existence, validity or termination, shall be submitted to the
exclusive jurisdiction of the courts of the Province of Quebec, Canada
(district of Montréal). The foregoing choice of jurisdiction and venue shall

not prevent either party from seeking injunctive relief with respect to a
violation of intellectual property rights, confidentiality obligations or
enforcement or recognition of any award or order in any appropriate
jurisdiction. The parties expressly disclaim applicability of the terms of the
United Nations Convention of Contracts for the International Sale of Goods
and any legislation implementing such Convention will not apply to this
Agreement nor to any dispute arising therefrom.

10.5. Entire Agreement. This Agreement (as amended from time to time)
constitutes the complete agreement between you and LATENCETECH and
supersedes all prior or contemporaneous agreements or representations
or warranties, written or oral, concerning the subject matter of this
Agreement.

10.6. No Third Party Beneficiaries. Except as expressly set out in this
Agreement, a person who is not a party to this Agreement will have no
rights to enforce any terms in this Agreement.

10.7. Transfer and Assignment. You shall not assign, delegate or otherwise
transfer this Agreement in whole or in part, directly or indirectly, by
operation of law, merger, acquisition, or otherwise without
LATENCETECH’s prior written consent. Any assignment, delegation or
transfer which violates the foregoing will be void. This Agreement is
assignable by LATENCETECH and LATENCETECH is entitled to sub-contract
any of its obligations under this Agreement provided that any such sub-
contracting will not relieve LATENCETECH of its obligations to you.

10.8. Severability. If any of the provision contained in this Agreement are
found by a court of competent jurisdiction to be invalid, illegal or
unenforceable in any respect, the validity, legality or enforceability of the
remaining provisions contained herein shall not be in any way affected or
impaired hereby.

10.9. Waiver. The failure of a party to enforce any provision of this Agreement
shall not constitute a waiver of such provision or the right of such party to
enforce such provision and every other provision.

10.10. Notice. Your day-to-day communication with LATENCETECH must
be via the contact details given in LATENCETECH’s relevant
documentation and LATENCETECH’s communication to you will be via
those details given to LATENCETECH when you accepted this Agreement
(or any new details which you subsequently notify to LATENCETECH). Each
party will use the appropriate communication medium, including e-mail,
and in the case of LATENCETECH communicating with you, by publishing
notices on its website. Any formal notice required to be given under this
Agreement will be in writing and will be sent by pre-paid mail or recorded
delivery or by email to the party required to receive the notice at the
address given for that party. Any notice will be deemed to have been duly
received if sent by: (a) pre-paid mail, 5 days after posting; or (b) recorded
delivery on the next business day; or (c) email on the next business day
after the email is sent, or earlier if the intended recipient has confirmed
receipt (either specifically or by conduct).

​

10.11.Language. The Parties have requested that this Agreement and all
documents related thereto be drafted in English. Les parties aux
présentes ont exigé que le présent contrat, ainsi que tous les documents y
afférents, soient rédigés en langue anglaise.