MAPLESOFT HOSTING SERVICES AGREEMENT: MAPLE T.A.

Transcription

1 MAPLESOFT HOSTING SERVICES AGREEMENT: MAPLE T.A. THESE TERMS AND CONDITIONS APPLY TO USE AND ACCESS TO THE MAPLE T.A. PRODUCT (THE "T.A. SERVICE") OF MAPLESOFT, A DIVISION OF WATERLOO MAPLE INC. ("MAPLESOFT") TO YOU (THE "CUSTOMER") AS SET OUT IN THE ORDER CONFIRMATION ISSUED TO CUSTOMER BY MAPLESOFT. THE T.A. SERVICE IS PROVIDED TO CUSTOMER UNDER THE FOLLOWING AGREEMENT AND THE TERMS OF THE ORDER CONFIRMATION. THIS AGREEMENT (THE AGREEMENT ) IS A LEGAL AGREEMENT BETWEEN CUSTOMER AND MAPLESOFT AND DEFINES WHAT CUSTOMER MAY DO WITH THE T.A. SERVICE, AND WHAT LIMITATIONS EXIST ON WARRANTIES AND REMEDIES RELATED TO THE T.A. SERVICE. BY ACCESSING THE T.A. SERVICE FROM THE MAPLESOFT T.A. SITE WITH THE USE OF A PASSWORD AS PROVIDED BY MAPLESOFT, CUSTOMER BECOMES A PARTY TO, AND AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF, THIS AGREEMENT. IF, AFTER READING THIS AGREEMENT, CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, CUSTOMER SHALL CEASE TO ACCESS THE T.A. SERVICE (A "CESSATION OF USE OF T.A. SERVICE"). IF THERE IS SUCH A CESSATION OF USE OF T.A. SERVICE BY CUSTOMER WITHIN 30 DAYS OF THE DATE OF ACCESSING THE T.A. SERVICE (THE "ACCEPTANCE PERIOD") THEN CUSTOMER SHALL RECEIVE A REFUND OF THE FEES PAID. MAPLESOFT RESERVES THE RIGHT TO CHARGE AN ADMINISTRATION FEE ON ALL REFUNDS AS MAY BE SET BY MAPLESOFT FROM TIME TO TIME. MAPLESOFT RESERVES THE RIGHT TO UPDATE THIS AGREEMENT FROM TIME TO TIME, AT ITS SOLE DISCRETION. CUSTOMER WILL BE GIVEN 30 DAYS NOTICE BEFORE THE NEW AGREEMENT TAKES EFFECT. BY CONTINUING TO ACCESS THE T.A. SERVICE AFTER THE UPDATED AGREEMENT TAKES EFFECT, CUSTOMER IS DEEMED TO HAVE ACCEPTED THE UPDATED AGREEMENT. IF CUSTOMER REQUIRES ADDITIONAL INFORMATION, PLEASE CONTACT 1. Definitions. In addition to the terms defined in the body of the Agreement, the following terms have the following meanings: "Activation Date" means the day following the issuance of a Unique URL and a Password to the Customer to access the T.A. Service. "Academic Institution" means a degree-granting educational institution that utilizes the T.A. Service solely for Academic Internal Use. "Academic Internal Use" means the use of the T.A. Service by Registered Users only and only for the purpose of (i) in the case of Customer's employees or consultants that are instructors, faculty and academic staff, administering the Content, provided that such activities are not carried on for commercial gain; and (ii) in the case of Customer's Students, completing the Content offered by the Customer. Any other use is expressly prohibited. "Content" means the assignments, tests and other content displayed and that operate when running the T.A. Service. "Customer" means either an Academic Institution or an Other Educational Institution to whom Maplesoft grants the rights to the T.A. Service herein and who is responsible for complying with the contractual obligations of this Agreement and ensuring that the Registered Users permitted access to and use of the T.A. Service through Customer also complies with such obligations. "Customer Data" means any data, Content and other information, (including, without limitation, the names of Registered Users, assignment and test answers and test scores attributable to Registered Users and any other information about an identifiable individual or an individual whose identity may be inferred or determined from the information) or other materials of any nature recorded in any form whatsoever disclosed or provided to Maplesoft (whether residing on Maplesoft servers or otherwise) by the Registered Users (as hereinafter defined) in the course of using the T.A. Service and all information generated by the Registered Users' use of the T.A. Service. "Documentation" means the Registered User guides, study guides and other documentation made available by Maplesoft from time to time, whether or not made available in connection with the delivery of the T.A. Service, as may be updated from time to time. Documentation may be delivered in online forms, and in one or more languages. "Electronic Communications" means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or in part electronically.

2 "Fee" means the Customer fee payable to Maplesoft by Customer as set out in the Order Confirmation for the T.A. Service. "Maple T.A. Site" means the Maplesoft website located at the Unique URL that is accessible by Registered Users to access and use the T.A. Service in accordance with the terms hereof. "Order Confirmation" has the meaning set forth in Section 2. "Other Educational Institutions" means secondary schools, colleges, vocational institutes and/or other noncommercial educational institutions offering recognized courses of study of two-years or more leading to an accredited diploma, that utilize the T.A. Service solely for Academic Internal Use. A commercial Registered User of the T.A. Service may, at Maplesoft s sole discretion, be deemed to be an "Other Educational Institution" to the extent that the T.A. Service is used by such Customer solely for Academic Internal Use and not for commercial use. Password has the meaning set forth in Section 4. "Person" means an individual, including, without limitation, a Student, a corporation, an association, a joint venture, a partnership, a trust, a business, an Academic Institution, an Other Educational Institution, and also includes an agency or any organization that can exercise independent legal standing. "Registered User" means a user of the T.A. Service that is (i) an employee or consultant of Customer who is either an instructor, faculty or academic staff member of the Customer or (ii) a Student of Customer. "Student" means: (i) a full-time or part-time undergraduate student who is either working toward a degree or a diploma in an Academic Institution and actively enrolled therein at the material time; (ii) a student registered in a continuing or professional education program of an accredited institution; (iii) a student enrolled in a high school, vocational institute or other accredited institution; (iv) any person endorsed by an accredited institution as being a student (students may be enrolled on campus or in distance education courses) or (iv) a customer or staff member of an Other Educational Institution to the extent that the T.A. Service is used solely for Academic Internal Use. Maplesoft shall determine whether or not an institution is "accredited", in its sole discretion. "Support" means the general maintenance services and technical support provided in respect of the T.A. Service set forth in Schedule A to this Agreement, but does not include any other professional services. "System" has the meaning set forth in Section 3. T.A. Deployed Content has the meaning set forth in Section 5. "T.A. Service" means the web-based testing and assessment systems that can be used to create, manage and deploy tests and assignments and other services in the applicable Order Confirmation and accessible in accordance with the terms hereof from the Maple T.A. Service. Subscription Right has the meaning set forth in Section 3. "Third Party Licensor" means the person who, or entity which, grants a license to Maplesoft to redistribute that person's or entity's intellectual property, as the case may be. "Unique URL" has the meaning set forth in Section Order Confirmation. Customer acknowledges that Maplesoft has provided to the Customer an order confirmation ("Order Confirmation") issued by Maplesoft to confirm certain terms of the Customer's use of the T.A. Service including, among other things, setting forth the T.A. Service ordered, the number of Registered Users (or the number of concurrent Registered Users, as the case may be) entitled to use the T.A. Service, the term of permitted use, and all contact information for the Customer (including contact name, address, address and fax number). Unless Customer notifies Maplesoft within 30 days of receipt of the Order Confirmation that it is inaccurate, Customer shall be deemed to have accepted the terms and conditions set out therein. 3. T.A. Service. Subject to the terms and conditions of this Agreement, Maplesoft grants to Customer, for use by its Registered Users, a non-transferable, non-exclusive, non-sublicensable right (the "Subscription Right") to access and use the T.A. Service via the Internet during the Term and any Renewal Term. Registered Users shall access the T.A. Service by means of a unique URL (the "Unique URL") and Passwords (as hereinafter defined) provided by Maplesoft. The T.A. Service shall be made available to the Customer on-line at the Maple T.A. Site from Maplesoft s hosted facility and/or other systems used by Maplesoft

3 to host the T.A. Service (collectively, the "Systems"). 4. Passwords. Maplesoft shall issue to the Customer, or shall authorize Customer to issue, a password (each, a "Password") for each Registered User authorized to access the T.A. Service using the Customer's Account. The Customer is solely responsible for the confidentiality and use of its Passwords and the Unique URL and all charges incurred from use of the T.A. Service accessed with the Passwords. In no event shall Maplesoft be liable for any loss of Customer Data or other claims to the extent the same arose from unauthorized access to the Customer's Account by obtaining a Password caused by a negligent or wilful act of the Customer. 5. Deployed Content. 5.1 The T.A. Service enables Customer, or Registered Users accessing the T.A. Service to deploy and deliver Web-based testing and assessment systems to create, manage and deploy tests and assignments (the "T.A. Deployed Content") through the System and accessed by Registered Users through the Maple Site. Customer or Registered Users are prohibited from making available any T.A. Deployed Content and/or Maple T.A. applications with functionality similar to or competitive with the T.A. Service (as determined by Maplesoft in its sole discretion). T.A. Deployed Content may not be developed or created without a valid license to the T.A. Service obtained from Maplesoft. Customer is permitted to provide access to T.A. Deployed Content but Customer may not sell, license or otherwise make available for commercial gain, access to such content, or provide direct access to the underlying functionality of any Maple Software. 5.2 Customer agrees that in the event that the T.A. Deployed Content negatively effects the performance and/or operation of the System (as determined by Maplesoft in its sole discretion), Customer shall reasonably cooperate with Maplesoft to cure any such performance and/or operational issue(s) by, including, without limitation, providing Maplesoft with copies and/or access to source code for Customer s T.A. Deployed Content, modifying such T.A. Deployed Content and/or following any other instructions given by Maplesoft at such time. 6. Customer's Conduct and Use Guidelines. 6.1 Customer's Lawful Conduct. Except as set out in the Order Confirmation, the Subscription Right is granted to the Customer exclusively for the internal use of the Customer. The Customer shall not, and shall not permit or suffer Registered Users, directly or indirectly, to do any of the following acts (each an "Illegal Act" and collectively, the "Illegal Acts"): (i) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the T.A. Service; (ii) modify, translate, or create derivative works based on the T.A. Service; (iii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit T.A. Service or make the T.A. Service available to a third party other than as contemplated in this Agreement; (iv) use the T.A. Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) publish or disclose to third parties any evaluation of the T.A. Service without Maplesoft's prior written consent; (vi) create any link to the T.A. Service or frame or mirror any content contained or accessible from, the T.A. Service; or (vii) violate any local, state, federal or foreign law, treaty, regulation or convention applicable to the Customer in connection with Registered Users' use of the T.A. Service, which may include without restriction, the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada) and similar provincial legislation in Canada enacted from time to time, the EU Data Protection Directive and other laws applicable to the Customer related to privacy, publicity, data protection and electronic communications (and, without limiting the generality of the foregoing, Customer is solely and exclusively responsible for the collection, accuracy, currency, quality, legality, completeness and use of Customer Data that is stored on the System, disclosed to or used by Maplesoft (but solely in accordance with Section 10), or disclosed to or used by Customer or Registered Users). 6.2 Certain Use Guidelines/Customer Prohibitions. The Customer shall not and shall not permit or suffer the Registered Users to do any of the following acts (individually, a "Prohibited Act", and collectively, "Prohibited Acts"): (i) wilfully tamper with the security of the Systems or tamper with other unique URLs, (ii) access data on the System not intended for the Customer, (iii) log into a server or account on the System that the Customer is not authorized to access, (iv) attempt to probe, scan or test the vulnerability of any Systems or to breach the security or authentication measures without proper authorization; (v) wilfully render any part of the Systems unusable. 6.3 Scheduling Updates. When a major new version of the Maple T.A. software becomes available, Maplesoft will contact the Customer to schedule an update of the T.A. Service to install the newest version of the Maple T.A. software. The Customer will make reasonable efforts to schedule this update to their T.A. Service within 12 months. To maintain Support, the Customer must agree to an update if the T.A. Service uses a version of the Maple T.A. software that is more than two major versions behind the current release. If that situation occurs, Maplesoft will contact the Customer to schedule an update to the newest version of the Maple T.A. software, to be performed within three months. If the Customer declines to update within those three months, Maplesoft will end Support for the T.A. Service until the update is performed. The T.A. Service will continue to be available to the Customer during this time, unless security problems are found with the Customer s version of Maple T.A that puts Customer Data at risk. If Customer Data is at risk, the Customer must accept an immediate upgrade to the most recent version of the Maple T.A. software.

4 7. Fees and Taxes. 7.1 Fees. The Fee payable by Customer shall be the amount set forth in the applicable Order Confirmation, invoice or Web purchase confirmation, as the case may be. If the Customer exceeds the permitted number of Registered Users as set forth in the Order Confirmation, the Customer is required to pay additional fees to Maplesoft to cover the excess users. All payments shall be non-refundable except as otherwise expressly provided in this Agreement. All Fees payable by Customer to Maplesoft shall be paid in the currency set forth in the accepted Order Confirmation within 30 days of the date of such document unless otherwise agreed to by Maplesoft in writing. Any amounts due Maplesoft under this Agreement not received by Maplesoft by the date due shall be subject to a service charge of one and one half percent (1 1/2%) per month or eighteen percent (18%) per annum, or the maximum charge permitted by law, whichever is less. 7.2 Invoicing, Payment and Overdue Payments. Fees for the T.A. Service and Support will be invoiced in advance in accordance with the terms set forth in the relevant Order Confirmation. Unless otherwise stated in the Order Confirmation, Fees are due within 30 days from the invoice date. Any payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% of the outstanding balance per month (being 18% per annum), or the maximum rate permitted by law, from the date such payment is due until the date paid. Customer shall also pay all sums expended (including reasonable legal fees) in collecting overdue payments. 7.3 Taxes. The Customer shall be responsible for all sales, use, value added withholding, or other taxes or duties, as applicable, payable with respect to the T.A. Service and the Support, or otherwise arising out of or in connection with this Agreement, other than Maplesoft's income taxes. If Maplesoft pays such taxes on the Customer's behalf, the Customer agrees to reimburse Maplesoft for such payment immediately upon demand. If any tax in the nature of withholding tax is payable on any sums payable to Maplesoft under this Agreement, the Customer shall pay Maplesoft such amount as is necessary to ensure that the net amount received by Maplesoft after such withholding shall be equal to the amount originally due, unless the Customer provides Maplesoft with a valid exemption certificate authorized by the appropriate taxing authority. 7.4 Expenses. The Customer shall be responsible to pay Maplesoft for all pre-approved costs and expenses incurred by Maplesoft in providing any Support to the Customer pursuant to this Agreement. The Customer agrees to pay such costs and expenses within 30 days of receipt of invoice by Maplesoft. The Customer is responsible for all its Internet connection charges, calling activities or phone bills related to the use of T.A. Service. 7.5 Changes in Fees. Maplesoft may, in its sole discretion, change prices, terms and conditions of this Agreement to be effective upon a Renewal Term (as set forth in Section 9.1), provided Maplesoft gives not less than 60 days written notice to Customer of such changes prior to the commencement of such Renewal Term. 7.6 Unused Users. If, at the end of the term of this agreement, the Customer has fewer Registered Users than is permitted in the Order Confirmation, the Customer will be allowed one-time carry-over of the unused portion to a new term of this agreement, as long as the new term starts within 3 months of the termination of the current agreement. Any unused portions that remain at the end of the second term will expire. Unused numbers of users will not be refunded. 8. Ownership. 8.1 Ownership of Maplesoft IP. Customer acknowledges and agrees that the T.A. Service and the Testing Content and all intellectual property rights therein (including without limitation, copyrights, patents, trade secrets, trade marks, moral rights and other intellectual property rights, in and to the T.A. Service and the Testing Content, all modifications, changes, enhancements, or additions thereto) and all intellectual property rights relating to the provision of Support (collectively, Maplesoft IP ), are owned or licensed by Maplesoft. To the extent Customer acquires rights in the Maplesoft IP, Customer assigns such rights to Maplesoft and waives any moral rights it may have in the Maplesoft IP to and in favour of Maplesoft. Except for the Subscription Rights, nothing in this Agreement gives the Customer any right, title or interest in, to or under any of the T.A. Service or the Testing Content, or any intellectual property rights therein or arising pursuant to the Support. If the Customer uses the T.A. Service to create practice questions, assignments or tests (the "Created Content") that is different from and does not otherwise infringe the copyright in respect of the Original Content, Maplesoft shall grant to Customer a perpetual, royalty-free, world-wide license to use the Creating Content solely for the purpose of Academic Internal Use with its Students. "Original Content" means the content displayed when the T.A. Service is initially installed and operated. Maplesoft exclusively reserves all rights not explicitly granted herein, without the written consent of Maplesoft. 8.2 Ownership of Customer Data. The Customer retains all right, title and interest in and to all Customer Data, subject to the license rights granted to Maplesoft necessary to provide the T.A. Service and Support under this Agreement. Customer will identify an individual, employed or otherwise authorized by Customer, to respond to enquiries by Maplesoft concerning any Customer Data provided to Maplesoft and to promptly address all enquiries concerning such information.

5 9. Term and Termination. 9.1 Term and Renewal Term. Unless earlier terminated by Maplesoft in accordance with this terms hereof, this Agreement becomes effective on the Activation Date and shall continue for the term set out in the Order Confirmation (the "Term"). 9.2 Suspension of Service. Maplesoft may, at its sole option, and in addition to any other right herein, suspend Support and the Customer's access to the T.A. Service immediately and take any remedial action under any applicable law in the event of an Illegal Act or Prohibited Act. 9.3 Termination. This Agreement may be terminated by either party upon the occurrence of any of the following events, which shall be deemed to be a breach of the terms of this Agreement: (a) if either party fails to perform any of its obligations, or there is a material breach of any of the provisions of this Agreement; provided that the party terminating this Agreement shall first have given prior written notice to the other of its intent to terminate, together with details of the default causing the termination, and the party receiving such notice shall have been given 20 days to cure any such default; or (b) if either party (A) ceases or threatens to cease to carry on its business, commits an act of bankruptcy, makes an assignment or bulk sale of its assets, or proposes a compromise or arrangement to its creditors, or (B) is subject to any proceeding that is taken to (i) compromise or make an arrangement with that party's creditors, (ii) obtain an order to assign that party into bankruptcy or winding-up that party, or (iii) obtain an order to appoint a receiver over any part of that party's assets, and in each case, such proceeding are not dismissed within 60 days of such proceeding being initiated. 9.4 Events on Termination. Upon termination of this Agreement: (a) each of the parties shall deliver or destroy all confidential information of the other party (including, without limitation Customer Data) which is in its possession, care or control; (b) if Maplesoft terminates this Agreement in accordance with Section 9.3(a) and 9.3(c), Customer shall be required to forthwith pay, as compensation for the early termination of this Agreement (and not as a penalty), those Fees and charges otherwise payable for the remainder of the Term or the then current Renewal Term, as the case may be; (c) if Customer terminates this Agreement in accordance with Section 9.3(a), Customer shall only pay those Fees that have accrued up to the date of its notice of termination and any prepaid Fees shall be forthwith paid by Maplesoft to the Customer; (d) each of the parties shall release the other from all obligations under this Agreement, save and except for obligations accrued and owing up to the effective date of termination and those surviving obligations set forth in Section 9.4(e) hereof; and (e) the provisions in Section 5, 7, 8, 9, 10, 11 and 12 of this Agreement shall continue in force following termination of this Agreement. 10. Protection, Access and Use of Customer Data Protection of Customer Data. Maplesoft will use all commercially reasonable efforts to maintain the confidentiality of Customer Data against loss, alteration or unauthorized access by employees or contractors employed by Maplesoft. Maplesoft shall not permit the disclosure of Customer Data to any third party without Customer s prior consent, except for Customer Data which Maplesoft is required to be disclose by law or regulation Access and use of Customer Data. (a) Maplesoft shall have the right to access and use Customer Data for the limited purposes of invoicing for the T.A. Service, providing Support, administrating and maintaining the Systems and the T.A. Service and to inspect the Customer's utilization of the T.A. Service so as to ensure Customer's compliance with the provisions of this Agreement, including without limitation, that the number of Registered Users or the number of concurrent Registered Users, as the case may be, does not exceed that set forth in the Order Confirmation. If, as a result of such access and use, Maplesoft determines that the number of Registered Users (concurrent or otherwise) accessing or using T.A. Service is greater than that set forth in the Order Confirmation, Customer shall forthwith pay any additional Fees due as a result of such additional access or use of the T.A. Service. (b) Maplesoft shall access and use Customer Data in accordance with all applicable laws and shall not permit access to or use any Customer Data for any purposes other than as expressly set forth in this Agreement.

6 11. Limited Warranties and Disclaimers Limited Warranty and Indemnity. Maplesoft warrants to Customer that the T.A. Service will not infringe any registered patent, copyright, trademark or trade secret right or other intellectual property right of a third party resident in Canada or the United States (collectively, the "IP Rights"). Maplesoft shall hold Customer harmless from costs, losses, damages and liability which may be incurred on account of a finding of infringement of IP Rights by the T.A. Service by a court of competent jurisdiction, and Maplesoft shall, at its own expense, defend all claims, suits or actions alleging such infringement of IP Rights, against Customer, provided that Maplesoft (i) is promptly notified of such claims, suits and actions, (ii) given all evidence in Customer's possession, and (iii) given reasonable assistance by Customer in and sole control of the defence thereof and all negotiations for its settlement or compromise. In the event of such a claim of infringement of IP Rights, Maplesoft's obligation under this Agreement shall be fulfilled if Maplesoft: (i) obtains a license for Customer to continue the use the T.A. Service, as applicable, or (ii) replaces or modifies the T.A. Service, as applicable, so as to be commercially substantially equal but non-infringing, provided, however, that if none of these options are reasonably available to Maplesoft, then upon written request by Maplesoft, Customer shall cease to use the T.A. Service, as applicable, and Maplesoft will refund the Fees paid for the T.A. Service. The indemnification under this Section shall not apply to any claim of infringement of IP Rights which may be brought resulting from (1) any unauthorized use of the T.A. Service; (2) any use of the T.A. Service in a manner for which the T.A. Service was not designed or in combination with any other product or service, which combination is the cause of the IP infringement; (3) any unauthorized modifications to the T.A. Service made by Customer; (4) any wilful act by Customer contrary to the terms of this Agreement; or (5) any settlement or compromise incurred or made by Customer without Maplesoft's prior written consent. The above states the entire liability of Maplesoft with respect to infringement of IP Rights by the T.A. Service and is in lieu of all warranties, express, implied or statutory, in regard thereto Maplesoft does not warrant that the T.A. Service will meet Customer's requirements, be error free, or operate without interruptions. Customer acknowledges that the T.A. Service operates in an environment that includes software and hardware of third party vendors and that Maplesoft does not control the products of third party vendors. Customer further acknowledges that it is possessed with superior knowledge with respect to its operations and has relied upon its own skill and judgment in selecting and the T.A. Service. Customer acknowledges and agrees that use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent reasonable security precautions taken by Maplesoft and illegally gain access to the T.A. Service and Customer Data. Accordingly, Maplesoft cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet LIMITED LIABILITY. OTHER THAN AS EXPRESSLY SET OUT HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE T.A. SERVICE AND SUPPORT IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MAPLESOFT OR ITS AFFILIATES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE USE AND PERFORMANCE OF THE T.A. SERVICE, SUPPORT AND DOCUMENTATION IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL MAPLESOFT, THIRD PARTY LICENSORS, ITS AGENTS OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE T.A. SERVICE, SUPPORT AND/OR DOCUMENTATION BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, TESTING INTERRUPTIONS, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE T.A. SERVICE, THE SUPPORT OR THE TERMINATION OF THIS AGREEMENT, THE FAILURE OF EQUIPMENT RELATED TO CUSTOMER'S COMPUTER OR DAMAGE TO CUSTOMER'S COMPUTER, SOFTWARE OR OTHER PROPERTY RESULTING FROM CUSTOMER'S USE OF THE T.A. SERVICE OR SUPPORT, EVEN IF MAPLESOFT OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM, OR IT IS FORESEEABLE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER IN SUCH A CASE. MAPLESOFT'S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE T.A. SERVICE. THE LIMITATIONS OF THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER Customer Indemnification. The Customer agrees to indemnify and hold Maplesoft harmless from and against any loss, liability, cost, expense or damage (including reasonable legal fees) arising directly or indirectly out of any claim, suit action

7 or judgment brought against Maplesoft or its affiliates related to (i) any act or omission by Customer relating to the T.A. Service that is contrary to the terms of this Agreement including, without limitation the commission of any Illegal Acts or Prohibited Acts, (ii) any failure by Customer to comply with any of the terms of this Agreement, or (iii) a claim that Customer Data or T.A. Deployed Content infringes, misappropriates or violates any copyrights, trademarks, trade secrets or other proprietary rights of, or has otherwise caused harm to, a third party. "Claim" shall mean all losses, liabilities, damages, claims, taxes, and all related costs and expenses incurred by a party hereto only as the direct result of third party claims against such party, including, without limitation, reasonable attorney's fees and costs of investigation, litigation, settlement, judgment, interest and penalties. Customer's indemnity obligations in this Section 11.4 are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defence and all related settlement negotiations with respect to the Claim; and (iii) the aggrieved party shall cooperate fully to the extent necessary, and executes all documents necessary for the defence of such Claim. 12. General Provisions Governing Law. This Agreement is governed by the laws of the Province of Ontario, Canada and, if the T.A. Service was acquired within Canada, each of the parties hereto irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Ontario without regard to conflicts of laws principles. Each of the parties hereto irrevocably attorns to the non-exclusive jurisdiction of the courts of the Province of Ontario, provided that the Customer agrees that any claim or action brought by the Customer shall be commenced in the courts of the Province of Ontario. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement Successors and Assigns. These terms and conditions inure to the benefit of and shall be binding upon, our respective heirs, successors or permitted assigns. Customer shall not assign this Agreement Invalidity Of Terms. If any of these terms and conditions are found by a court of competent jurisdiction to be invalid, the parties hereto nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in such term or condition, and the other terms and conditions shall remain in full force and effect Entire Agreement. Unless otherwise agreed to by Maplesoft in writing, this Agreement (including the Schedules and the Order Confirmation) constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all agreements, understandings, negotiations and discussions, whether oral or written, of the Parties and there are no warranties, representations or other agreements between the Parties in connection with the subject matter hereof except as specifically set forth herein. In the event of any conflict or inconsistency between the provisions of this Agreement to the Maple T.A. License, the provisions of this Agreement shall prevail. In the event of any conflict or inconsistency between the provisions of this Agreement (excluding the Order Confirmation) and the Order Confirmation, the provisions of the Order Confirmation shall prevail Marketing. Unless otherwise agreed to by Customer and Maplesoft, Customer agrees that Maplesoft may use Customer s name and logo to identify Customer as a customer of Maplesoft's on Maplesoft's website, and as a part of a general list of Maplesoft's customers for use and reference in Maplesoft's corporate, promotional and marketing literature. Additionally, unless otherwise agreed to by Customer and Maplesoft, Customer agrees that Maplesoft may issue a press release identifying Customer as an Maplesoft customer and describing Customer s intended utilization and the benefits that Customer expects to receive from use of Maplesoft's services. The content of any press release identifying Customer as a customer of Maplesoft will be subject to Customer's prior approval Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances. Should you have any questions concerning this Agreement, contact Maplesoft at: Customer Service Department 615 Kumpf Drive, Waterloo, Ontario, Canada N2V 1K8; info@maplesoft.com; Phone: (519)

8 Schedule A SUPPORT Support and Maintenance: and telephone-based help desk support is available to the Customer. The Customer agrees to send all non-urgent questions and issues to the help desk and all urgent questions to the telephone-or -based help desk. Contact information can be found at The Customer acknowledges that, as required, Maplesoft will schedule system maintenance periods for purposes of upgrades and maintenance to the T.A. Service and/or System. On the chosen day, service will typically be interpreted starting at 9:00 PM Eastern Time, with the outage lasting up to six hours. Maplesoft may occasionally have to interrupt services at other times. Maplesoft will, acting reasonably, give the Customer appropriate notice of any required maintenance, by announcing the scheduled downtime via e- mail to the Customer's designated address. The Support provided under this Agreement do not include services provided with respect to the following matters: (i) any problem resulting from the misuse, improper use, alteration, or damage of the T.A. Service; (ii) any problem caused by modifications in any version of the T.A. Service not made or authorized by Maplesoft; or (iii) any problem resulting from the Customer combining or merging the T.A. Service with any hardware or software not supplied by Maplesoft, or not identified by Maplesoft as compatible with the T.A. Service