BY DOWNLOADING THIS SOFTWARE THE USER HEREBY AGREES TO ADHERE TO THE TERMS AND CONDITIONS OF THIS PV PERFORM MOD SOFTWARE LICENCE AGREEMENT (hereinafter referred to as the “Licence Agreement”)
THIS IS A LICENCE AGREEMENT between you the end-user (hereinafter referred to as the "Licensee") and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Minister of Natural Resources, through CanmetENERGY, whose principal office is at 580 Booth Street, Ottawa, Ontario, K1A 0E4, (hereinafter referred to as the "Licensor"),
WHEREAS the Licensor has the right to grant a non-exclusive licence for the software currently known as PV PERFORM MOD SOFTWARE VERSION 1.1, a tool that enables fault detection as well as performance analysis of photovoltaic (PV) systems (hereinafter referred to as the "Software"),
NOW THEREFORE, in consideration of the premises and covenants hereinafter contained, the parties agree as follows:
1 GRANT OF LICENCE
1.1 Upon the terms and conditions hereinafter set forth, the Licensor hereby grants the Licensee a non-exclusive, royalty free, worldwide, revocable end-user Licence to use the Software.
1.2 The Licensee shall not disclose, sell, sublicense, loan, transfer, reverse-engineer, modify the Software or otherwise assign any rights under this Licence Agreement to any third party.
2.1 This Licence Agreement shall come into force on the date the Software is downloaded by the Licensee.
2.2 This Licence Agreement shall remain in force until either the Licensor terminates the Licence Agreement as a result of the Licensee’s breach of the Licence Agreement or, the Licensee destroys and erases on all media in his possession all copies of the Software.
3 OBLIGATIONS OF THE LICENSEE
3.1 The Licensee shall not make any statement or representation indicating that the Licensor or the Government of Canada endorses or approves any recommendation, study, report, product, service or course of action as a result of the Licensee's use of the Software.
3.2 In any publication, in whole or in part, or in any public reference to the Software or to the use of the Software, the Licensee shall duly acknowledge the Licensor's ownership of the Software, and provide a proper citation of the Software.
3.3 The Licensee’s publications referring to the Software must include the following attribution statement: "PV Perform Mod version 1.1 is a software developed by Natural Resources Canada © Her Majesty the Queen in Right of Canada (Natural resources Canada) 2015."
3.4 The Licensee shall seek prior written approval for any statements concerning the Licensor beyond the attribution statement referred to in article 3.3.
4 MAINTENANCE AND SUPPORT
4.1 It is understood and agreed that the Licensor is under no obligation to provide technical support, maintenance services, update services, notices of latent defects, or correction of defects for the Software.
5.1 The Licensee agrees that the Software is and shall at all times remain the property of the Licensor. The Licensee has no right, title and interest therein or thereto except as expressly set out in this Licence Agreement.
6 WARRANTY AND INDEMNITY
6.1 THE SOFTWARE IS LICENSED ON AN "AS IS" BASIS. THE LICENSOR MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES RESPECTING THE SOFTWARE, EITHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO EFFECTIVENESS, COMPLETENESS, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE.
6.2 THE LICENSOR SHALL NOT BE LIABLE AND THE LICENSEE SHALL HAVE NO RECOURSE AGAINST THE LICENSOR IN RESPECT OF ANY CLAIM, DEMAND OR ACTION, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND OR ACTION ALLEGING ANY LOSS, INJURY OR DAMAGES, DIRECT OR INDIRECT, WHICH MAY RESULT FROM THE LICENSEE'S USE OR POSSESSION OF THE SOFTWARE. THE LICENSOR SHALL ALSO NOT BE LIABLE IN ANY WAY FOR LOSS OF REVENUE OR CONTRACTS, OR ANY OTHER CONSEQUENTIAL LOSS OF ANY KIND RESULTING FROM THE LICENSEE'S USE OR POSSESSION OF THE SOFTWARE.
6.3 LICENCEE SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE LICENSOR, ITS EMPLOYEES SERVANTS, AND AGENTS FROM AND AGAINST ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, COSTS (INCLUDING LEGAL FEES AND COSTS ON A SUBSTANTIAL INDEMNITY BASIS), ACTIONS, SUITS OR PROCEEDINGS BROUGHT BY ANY THIRD PARTY, THAT ARE IN ANY MANNER BASED UPON, ARISING OUT OF, OR ATTRIBUTABLE TO THE USE, POSSESSION OR PERFORMANCE OF THE SOFTWARE BY THE LICENSEE, ITS EMPLOYEES OR AGENTS.
6.4 FOR GREATER CLARITY, PURSUANT TO SUBSECTION 5(d) OF THE DEPARTMENT OF JUSTICE ACT, S.C. 1993, . J-2, s.1, THE ATTORNEY GENERAL OF CANADA HAS THE REGULATION AND CONDUCT OF ALL LITIGATION FOR AND AGAINST HER MAJESTY IN RIGHT OF CANADA AND THE LICENSOR RETAINS THE RIGHT TO DEFEND WITH COUNSEL OF ITS CHOOSING.
7.1 If the Licensee breaches any obligation under this Licence Agreement and fails to remedy the breach to the Licensor’s satisfaction, the present Licence Agreement is deemed to be terminated immediately without any notice, and the Licensee agrees to immediately return to the Licensor all copies of the Software and related documentation, and to ensure that the Software contained on any media in the Licensee's possession has been completely erased or otherwise destroyed.
8.1 Prior to disposing of any media, the Licensee shall ensure that any Software contained on such media has been completely erased or otherwise destroyed.
9 APPLICABLE LAW AND SEVERANCE
9.1 This Agreement shall be interpreted in accordance with the laws applicable and in force in the province of Ontario, Canada.
9.2 If any provision in this Licence Agreement is found, by a court, to be wholly or partly invalid, illegal or unenforceable in any respect, the remainder of this Licence Agreement shall remain enforceable and this Licence Agreement shall be construed as the provision had never existed.
10.1 All notices, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given once confirmation is received after sending to the Licensor:
Intellectual Property Division
Innovation and Energy Technology Sector
580 Booth Street
Ottawa, Ontario K1A 0E4
Any notice sent pursuant to this section shall be effective;
- if sent by courier or registered mail and a signature acknowledging delivery has been received;
- if sent by facsimile or email, when the sender receives evidence of successful transmittal to the addressee’s coordinates herein listed ; or
- if delivered by hand, during normal business hours to the person responsible for receiving communications, in which case it is effective when delivered.
11 ENTIRE LICENCE AGREEMENT
11.1 This Licence Agreement represents the entire understanding between the Parties as of the effective date and supersedes all other communications, negotiations and agreements, written or oral, concerning the Software.
12.1 Failure by the Licensor to assert rights arising from any default of the Licensee under this Agreement does not constitute a waiver. No waiver shall be effective unless in writing and no written waiver shall operate as a waiver of any subsequent default.
13 DISPUTE RESOLUTION
13.1 The Licensor and the Licensee shall attempt to amicably resolve any dispute arising out of or in connection with this Licence Agreement. If the Licensor and the Licensee cannot come to a resolution, the Licensor and the Licensee submit all their disputes arising out of or in connection with this License Agreement to the exclusive jurisdiction of the Courts of Ontario, Canada, in the city of Ottawa.