This Free Trial License Agreement (the “Agreement”) is entered into by and between Canalyst Financial Modeling Corporation, a company registered in British Columbia, Canada, whose registered address is 1700 – 1055 West Hastings Street, Vancouver, British Columbia, V6E 2E9 (“Canalyst”) and the Client as defined in a fully executed Canalyst Free Trial Order form (“Trial Order”), as of the Effective Date stated on the Trial Order. Together, Canalyst and Client comprise the “Parties” (any one being a “Party”).

Any terms referenced herein but not defined in this Agreement may be defined in the Service Order.

WHEREAS:

A.           This Agreement governs the access and use of the products and services (“Products”), which includes the materials and content therein (such as the Models) (“Materials”), made available to Client by Canalyst via the website http://www.canalyst.com/, or such other website specified to Client by Canalyst from time to time, whether accessed by web application, mobile application, or otherwise;

B.           the Licensor created a private access program for prospective clients to access and test the Products without cost (the “Free Trial”); and

C.            the Licensee wishes to participate in the Free Trial.

NOW THEREFORE IN CONSIDERATION of $10.00 CAD from the Licensee to the Licensor, and other good and valuable consideration set forth herein (the receipt and sufficiency of which are hereby acknowledged by both Parties), the Parties agree as follows:

1.           GRANT OF LICENCE 

In exchange for the obligations provided for in this Agreement, the Licensor hereby grants and the Licensee hereby accepts, a limited, non-exclusive, revocable, non-sublicensable license (the “License”) to use the Products for the non-commercial purpose of participating in the Free Trial and under the terms and conditions specified in this Agreement.

2.            USE OF THE PRODUCTS

2.1.      Subject to the terms of this Agreement, the Licensee has the right under the License, during the term of the License, to access, download, and use the Products on the Licensee’s computers.

2.2.         For certainty, the Licensee is prohibited from using the Products for commercial purposes, or any purpose other than to test the Products and provide Feedback (as such term is defined in Section 6.1) to the Licensor on the Products as part of the Free Trial. Further, the Licensee shall not do any of the following: 

 i.          attempt to reverse engineer, reprogram, modify, improve, disassemble, decompile or jeopardize the original functioning of the Products, or otherwise attempt to derive, copy, or manipulate the algorithms, formulas, calculations, or assumptions that underlie the Products; 

 ii.          remove, cover, or otherwise alter any name or other identifying marks of the Products or in the Products; or 

 iii.          facilitate or encourage any violations of this Agreement.

 2.3.        Nothing contained on the Website or in the contents of the Products should be construed as a grant, by implication, estoppel, or otherwise, of any license or right to use the Products in any way except: (a) as expressly permitted by this Agreement; or (b) with Licensor’s prior written consent, which may be unreasonably withheld.

3.              IMPROVEMENTS AND MODIFICATIONS

3.1.        Improvements.  Subject to Section 2.2, the Licensee may alter, modify, amend, enhance, improve, or manipulate the Products for the purpose of which they are provided (the “Improvements”). The Licensee waives all moral rights attached to any Improvements made to the Products which it may otherwise have rights to or ownership of, and the Licensee agrees that such Improvements shall be deemed as owned and authored by the Licensor.

3.2.          Power of Attorney.  Further to Subsection 3.1 above, the Licensee hereby nominates, appoints, and constitutes the Licensor as the Licensee’s true and lawful attorney, with power, coupled with an interest, to do all things and execute all documents required to vest, register, record, and otherwise perfect the Licensor’s interest in any Improvements made to the Products during the term of this Agreement, whether such Improvements are made as contemplated in Section 3.1 above or as a result of Feedback.

4.             REPRESENTATIONS AND WARRANTS 

4.1.         Mutual Representations and Warranties.  Each Party hereby represents and warrants to the other Party that: 

 i.             such Party is a corporation duly incorporated or duly constituted and validly existing;

ii.            such Party has all necessary power and authority to enter into this Agreement and to carry out its obligations hereunder and such Party has authorized the person signing this Agreement to do so on the Party’s behalf;

 iii.           the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized;

iv.           this Agreement constitutes a valid and binding obligation on such Party enforceable against such Party in accordance with its terms, subject, however, to the customary limitations with respect to bankruptcy, insolvency or other laws affecting creditors’ rights generally and with respect to the availability of equitable remedies; and

v.        such Party is not a party to, bound by or subject to any agreement, instrument, charter or by-law provision, statute, regulation, order, judgment, decree or law which would be violated, contravened or breached by, or under which any default would occur as a result of the execution and delivery by such Party of this Agreement or the performance by such Party of any of the terms hereof.

4.2.         Licensor Representations and Warranties.  The Licensor represents and warrants to the Licensee as follows as of the date hereof, and acknowledges and confirms that the Licensee is relying upon such representations and warranties in connection with this License:

i.              The Licensor represents and warrants that it has the sole right to grant the rights and licences provided for in this Agreement and that it has not assigned, licensed or otherwise conveyed the sole and exclusive rights and licences outlined in Section 1 to any other person, such that it would conflict with this License.

 ii.              The Licensor shall, at its own cost, take all necessary steps to ensure that the Product’s licensed rights are maintained and preserved during the term of this Agreement. The Licensor shall, at its own cost, as far as commercially reasonable, pursue appropriate intellectual property protections for the Products and any and all Improvements. All of this Section 4.2(ii) is subject to Section 9 of this Agreement.

5.             CONFIDENTIALITY

5.1.         Confidential Information” means the Licensor’s information, communicated in any form or medium, whether or not reduced to writing, relating to the Website, the Products, and the Free Trial, and includes without limitation:

i.          any related software, documents, logic, design, structure, algorithms, assumptions, calculations, formulas, processes, technical documentation, ideas, know-how, discoveries, inventions (whether or not patentable), techniques, mask works, industrial designs, and research and development information;

ii.          lists of clients and other related information;

iii.          marketing and financial plans, data and information related thereto;

iv.          business plans, processes or information related thereto;

v.          Improvements and Feedback;

vi.          the existence of this Agreement including modifications or amendments to the Agreement and the terms herein; and

vii.          any other information (whether tangible or intangible) of the Licensor (or its parent company, subsidiaries or affiliates, suppliers, agents, clients, end users or others) that the Licensor shares with the Licensee or that the Licensee should know, by virtue of the Licensee’s position or the circumstances in which it was learned or disclosed, should be kept confidential.

Confidential Information also includes information of the Licensor’s parent company, subsidiaries or affiliates, and their shareholders, partners, employees, consultants, suppliers, agents, clients, end users or others, which is defined as Confidential Information in accordance with the foregoing definition.

5.2.           The Licensee acknowledges that it may have access to Confidential Information, and that the disclosure of such information to competitors, clients or partners of the Licensor, or to the general public, would be highly detrimental to the best interests and business of the Licensor.

5.3.          Notwithstanding the provisions of Section 5, “Confidential Information” does not include information or data which the Licensee can prove was in the public domain at the date of disclosure to it, or which thereafter enters the public domain through no fault of the Licensee’s (but only after it enters the public domain), provided that any combination of the information which comprises part of the Confidential Information will not be included within the foregoing exceptions merely because individual parts of the information were within the public domain.

5.4.          Notwithstanding the provisions of Section 5, “Confidential Information” does not include information or data which the Licensee can prove was independently developed by the Licensee, provided that the Licensee provides written evidence to the Licensor substantiating such independent development. Such written evidence shall be excluded from the definition of Feedback, provided that the Parties mutually agree that the development substantiated with the written evidence was independently developed. If the Parties agree that the written evidence substantiates independent development on the part of the Licensee that does not conflict with the terms of this Agreement, such written evidence shall be treated by the Licensor with the same levels of confidentiality as afforded to the Confidential Information.

5.5.                The Licensee shall not disclose, during the term of this Agreement or for a period of two (2) years thereafter, any Confidential Information to any person, nor will it use or exploit, directly or indirectly, the Confidential Information for any purpose other than to participate in the Free Trial, nor will it use for any purpose, other than to participate in the Free Trial, the private affairs of the Company, its clients, or any other information which the Licensee may acquire during the term of this Agreement with respect to the Products, whether acquired in the course of the Engagement or incidentally.

5.6.              Notwithstanding the foregoing, the Licensee shall be entitled to disclose such information if required by law provided that it promptly notify the Licensor, consult with the Licensor and cooperate with the Licensor in any attempt to resist or narrow such disclosure or to obtain an order or other assurance that such information will be accorded confidential treatment.  Notwithstanding any disclosure required by law, the Confidential Information disclosed will, for all other purposes, continue to be treated as Confidential Information under this Agreement.

6.                 FEEDBACK

6.1.      General. The Licensee shall provide feedback on the Products to the Licensor upon termination of this Agreement (the “Feedback”). The Licensee shall engage in at least one exit interview with the Licensor in order to provide the Feedback (the “Interview”). The Interview shall be conducted at a time mutually agreed upon by the Parties.

6.2.          Feedback Ownership.  Any communications between the Licensee and the Licensor, such as email or other correspondence, including all communications during the Interview relating to suggestions or comments for improving or modifying the Products or any part thereof will be deemed Confidential Information and proprietary to the Licensor. All such communications shall be included as Feedback for the purposes of this Agreement. The Licensee waives any and all moral rights that may be associated with the Feedback.

6.3.           Feedback Representations and Warranties.  Further to the ownership provisions included in Section 6.2 above, the Licensee agrees that when providing Feedback, the Licensee shall not breach any of its confidentiality obligations and that all such Feedback shall be free and clear of any third party proprietary rights. The Licensee agrees that it shall not be entitled to receive any additional compensation or re-imbursement of any kind from the Licensor for any Feedback and that the Licensor may irrevocably freely use, reproduce, exploit, and publicize the Feedback as it deems fit.

7.             PUBLICITY

By participating in the Free Trial and as part of the consideration for this License, the Licensee agrees that the Licensor may disclose the Licensee’s name as a participant in the Free Trial in its confidential investor materials. No other announcements regarding the Licensee’s participation in the Free Trial, or the Licensee’s general relationship with the Licensor, shall be made without mutual consent by the Parties, which consent may be unreasonably withheld.

8.             TERM AND TERMINATION

This Agreement shall remain in effect until terminated as provided herein.

8.1.            Termination.  The Parties shall have the right to terminate this Agreement immediately and at any time upon giving notice to the other Party to that effect.

8.2.          Survival.  Any provision of this Agreement which imposes an obligation after termination of this Agreement shall survive the termination of this Agreement including without limitation: Sections 3 (Improvements and Modifications), 4 (Representations and Warranties), 5 (Confidentiality), 6 (Feedback), 7 (Publicity), 9 (Enforcement), 11 (Indemnity), 12 (Disclaimers), 13 (Liability Limitation), and 14 (General).

8.3.               Further Assurances.  In the event of termination, the Licensee hereby agrees upon such termination to irretrievably destroy any Confidential Information in its possession (which includes any copies or derivatives of the Products), and, upon the Licensor’s request, to provide the Licensor forthwith with a certificate in writing executed by an officer of the Licensee confirming that all such materials have been irretrievably destroyed.

9.             ENFORCEMENT

9.1.         Mitigation.  As it relates to the license granted in Section 1 of this Agreement, the Licensor reserves the right to take such steps as it deems necessary to restrain any unauthorized activity by the Licensee, including, without limitation, access suspension, access termination, and legal action.

9.2.           Equitable Relief.  The Licensee acknowledges and agrees that the Products are of an extraordinary and unique character and that the injury which would be suffered by the Licensor in the event of a breach by the Licensee of any of its obligations hereunder would be irreparable and otherwise of a character which could not be fully compensated for solely by recovery of monetary damages. Accordingly, the Licensee agrees that, without in any way limiting the other rights or remedies of the Licensor, the Licensor shall be entitled to apply to obtain equitable relief, restraining order, injunction, decree, or remedy, as may be appropriate to restrain any breach or threatened breach of this License.

9.3.             Infringement by Third Parties.  The Licensee shall promptly notify the Licensor of any infringement or suspected infringement of the intellectual property rights related to the Products (which shall include any Improvements), shall not make any admissions in respect of them, and shall give the Licensor all such information and assistance, other than financial assistance, as the Licensor may reasonably require to enable such proceedings to be taken and prosecuted against the infringer or suspected infringer as the Licensor may in its discretion deem necessary or desirable.

9.4.          Conduct and Participation.  The Licensor shall have the right of sole conduct of all actions and proceedings relating to the Products and Improvements, including infringement claims, interferences, and conflicts, but the Licensor shall be under no obligation to exercise this right.

10.         RELATIONSHIP BETWEEN PARTIES

The Parties acknowledge and agree that each is an independent business entity and, as such, neither Party may represent itself as an employee, agent, or representative of the other; nor may it incur any obligations on behalf of the other Party, which is not specifically authorized in this Agreement. This License does not create an association, joint venture, or partnership between the Parties, nor does it impose any partnership liability upon either Party.

11.         INDEMNITY

The Licensee agrees to indemnify, defend, and hold harmless the Licensor from and against any and all losses, costs, expenses, claims, or damages arising out of any claim, suit, action, or judgment brought against the Licensor by a third party as a result of the use by the Licensee of the Products, any act of the Licensee beyond its authority under this Agreement, or as a result of any breach by the Licensee of any covenant, warranty or representation made under this Agreement.

12.           DISCLAIMERS

12.1.      Accuracy of Information.  The Licensor does not guarantee that the information (which may include financial figures) included in the Products will be accurate, up-to-date or complete.  The Products may contain errors, omissions or inaccuracies, including both typographical and substantive errors.  The Licensor reserves the right, in its sole discretion, without any obligation and without any notice requirement, to discontinue, change, improve, or correct the information, algorithms, formulas, calculations, designs, and descriptions provided in the Products, and to suspend or deny access to the Licensee for scheduled or unscheduled maintenance, upgrades, improvements or corrections. Any dated information is published as of its date only, and the Licensor has no responsibility to update or amend any such information (whether or not material events occur relating to market changes, financial updates, news events, or any other event which may impact the Products and the information found therein).

12.2.           No Warranty.  Subject to the provisions of Section 4 and to the maximum extent permitted by law, the Products are provided “as is” and are used at the Licensee’s sole risk with no warranties from the Licensor whatsoever. Without limiting the foregoing, Licensor does not make any warranties, claims or representations and expressly disclaims all such warranties of any kind, whether express, implied or statutory, with respect to the Products or Website including warranties or conditions of quality, performance, non-infringement, merchantability, or fitness for use for a particular purpose.

12.3.            Downtime.  The Licensor does not guarantee that access to the Products, or any part thereof, will be available 100% of the time. Interruptions and delays in accessing the Products may occur during the Free Trial, and the Licensor disclaims any liability for damages resulting from such problems, including, but not limited to, loss of opportunity or loss of use or enjoyment.

12.4.          No Advice.  The Licensor makes no recommendations, endorsements, warranties, representations or otherwise whatsoever, regarding any security or securities products, or regarding any of the companies referenced in the Products. The Licensor does not provide financial or investment advice, and the Products should not be relied upon in making any kind of financial investment or construed as being advisory in nature.  The Licensor is not a licensed financial or investment advisor and strongly recommends the Licensee only utilize the Products under the close supervision of a licensed financial or investment advisor if utilizing the Products to make investment decisions.

12.5.          Third Party Materials or Links.  The Products may contain third party materials or website links (the “Links”). The Licensor provides the Links for convenience only and makes no representations whatsoever about any site whose services may be accessed through the Products or whose services may be described or offered through the Products. The use of Links does not mean that the Licensor endorses or accepts any responsibility for the content, or use, of such third party material or website.

12.6.             Reliance.  The Licensee expressly acknowledges that the Licensor is providing this License in reliance upon the limitations and exclusions of liability and the disclaimers set forth herein and that the same form an essential basis of this Agreement. The Licensee expressly agrees that the limitations and exclusions of liability and the disclaimers set forth herein shall survive, and continue to apply in the case of a fundamental breach or breaches of, the failure of essential purpose of contract, the failure of any exclusive remedy or the termination or suspension by the Licensor of the Licensee’s use of, or access to, the Products.

13.                  LIABILITY LIMITATION

THE MAXIMUM AGGREGATE LIABILITY OF THE LICENSOR, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND AGENTS, UNDER THIS LICENSE FOR ALL LOSSES, DAMAGES, EXPENSES, OR INJURIES, WHETHER UNDER CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE, AND STRICT LIABILITY), BY STATUTE, OTHER LEGAL THEORY, OR OTHERWISE, HOWSOEVER ARISING, SHALL BE LIMITED TO THE MONETARY CONSIDERATION PROVIDED TO THE LICENSEE FROM THE LICENSOR UNDER THIS AGREEMENT ($10.00 CAD). NO ACTION OR PROCEEDING RELATING TO THIS LICENSE MAY BE COMMENCED BY THE LICENSEE MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES.

IN NO EVENT SHALL THE LICENSOR BE LIABLE TO THE LICENSEE OR TO ANY THIRD PARTY FOR: (1) ANY AMOUNTS REPRESENTING LOSS OF PROFITS OR REVENUES HOWSOEVER ARISING; (2) SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SAME; (3) DAMAGES OR EXPENSES ARISING FROM CHANGES IN OPERATING CHARACTERISTICS OF THE PRODUCTS WHICH ARE MADE DURING THE TERM OF THIS LICENSE; OR (4) DAMAGES ARISING FROM THE USE OF THE PRODUCTS WITH THE OTHER SOFTWARE. FURTHER TO SECTION 11, THE LICENSEE SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS THE LICENSOR IN RESPECT OF ALL CLAIMS OR DAMAGES EXCLUDED HEREUNDER.

14.                 GENERAL

14.1.         Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein.

14.2.             Further Assurances.  The Parties shall make best efforts to execute, acknowledge, and deliver all such further assurances and documents and do all such other acts as may be necessary or appropriate in order to carry out the intent and purposes of this Agreement.

14.3.            Entire Agreement.  This Agreement, which includes the attached Schedule “A”, constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes all previous writings and understandings.

14.4.       Severability.  If any provision of this Agreement is or becomes fully or partially invalid or unenforceable for any reason whatsoever or should be adjudged to violate any applicable law, this Agreement is to be considered divisible as to such provision and such provision, to the extent that it is invalid or unenforceable, is to be deemed deleted from this Agreement, and the remainder of this Agreement shall be valid and binding as if such provision were not included herein.

14.5.        Non-Waiver.  No waiver of any violation or non-performance of this Agreement shall be deemed to be a waiver of any subsequent violation or non-performance.

14.6.          Language.  Whenever a word is used in the singular in this Agreement, it shall also mean the plural, and vice versa, unless otherwise noted. The headings in this Agreement are inserted for convenience of reference only and shall not affect the construction thereof.

14.7.            Time.  Time shall be of the essence of this Agreement.

14.8.             Notice.  All notices, reports, or other communication that the Parties give each other in connection with this Agreement shall be in writing, and shall be delivered by hand, e-mail, or registered mail to the recipient at the Party’s address or e-mail as set forth in the Trial Order. Proof of delivery in a prescribed manner will constitute proof of receipt.

14.9.             Construction of Agreement.  This Agreement is deemed to be drafted by both Parties. Interpretation of this Agreement shall not be construed against either Party.

14.10.         Assignment.  The Licensor may assign its rights, obligations and duties under this Agreement with notice to the Licensee. The Licensee may assign its rights, obligations and duties under this Agreement only with prior written approval from the Licensor, which approval may be unreasonably withheld.

14.11.         Enurement.  This Agreement shall enure to the benefit of the Parties’ permitted assigns.

14.12.         Amendmenents.  This Agreement may be amended or modified from time to time by a written document signed by the Licensor and the Licensee, or its permitted assigns.

14.13.     Dispute Resolution.  All disputes arising out of or in connection with this Agreement, or in respect of any defined legal relationship associated therewith or derived therefrom shall be referred to and finally resolved by arbitration under the International Commercial Arbitration Rules of Procedure of the British Columbia International Commercial Arbitration Centre. The appointing authority shall be the British Columbia International Commercial Arbitration Centre. The place of arbitration shall be Vancouver, British Columbia. All of the costs and expenses of the arbitration shall be borne equally by the parties to the dispute.  Any award rendered by the arbitrator shall be final and binding on the parties. Nothing in this Agreement shall prevent the Licensor from applying to an appropriate court in any part of the province, state, territory, or elsewhere for any injunction or other like remedy to restrain the Licensee from committing any breach or any anticipated breach of this Agreement and for consequential relief.

14.14.          Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together constitute one and the same instrument.