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TELDIO D3M SOFTWARE LICENSE AGREEMENT

BEFORE CLICKING ON THE "ACCEPT" BUTTON YOU MUST CAREFULLY READ THE TERMS AND CONDITIONS SET OUT BELOW GOVERNING YOUR SUBSCRIPTION TO THE D3M SERVICE (THE “SERVICES”). BY CLICKING ON THE "ACCEPT" BUTTON, YOU ACCEPT AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (“AGREEMENT”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF AN ORGANIZATION OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND SUCH ORGANIZATION OR ENTITY. “YOU” AND “YOUR” WILL REFER TO SUCH ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT CLICK THE “I ACCEPT THE TERMS OF SERVICE” CHECKBOX AT THE END OF THIS AGREEMENT AND DO NOT SUBSCRIBE TO THE SERVICES.

SUMMARY

THIS PLAIN LANGUAGE SUMMARY IS PROVIDED FOR YOUR CONVENIENCE AND IS NOT LEGALLY BINDING. PLEASE READ THE FULL VERSION OF THE TERMS SET OUT BELOW TO FULLY UNDERSTAND YOUR LEGAL OBLIGATIONS AND RESTRICTIONS.

  1. You can only use the Services and the content provided as part of the Services as set out in this Agreement. We own the Service and the content provided as part of the Service and You are not allowed to copy, alter or otherwise do anything to the Service and the content other than to design and document solutions and manage networks and services for Your organization and end users based on the intended purposes of the Service.
  2. We can change the terms of this Agreement at any time and will notify You of any such changes.
  3. You will own the information you upload to the Service and you guarantee that this information will not be illegal or harmful in any way. We can use the information You upload in limited ways.
  4. You agree to pay Teldio and understand that Teldio can cancel your access to the Service if you don’t pay.
  5. You agree to properly manage Your account and will not let anyone use the Service who isn’t authorized to. You aren’t allowed to do anything illegal using your account. You must notify us immediately if your account has been compromised or if one of Your employees who had an account leaves Your organization.
  6. We do not guarantee that the Services and the content will meet your requirements or that it will work without interruption. We are not responsible if you break the law, breach this Agreement or violate the rights of a third party, particularly if you get sued.
  7. This Agreement is the one that applies to Your use of the Services. If you had a prior Agreement with us, it no longer applies.
  1. LICENSE
    1. Licenses. Teldio Corporation (“Teldio”) grants and You hereby accept, upon payment by You of the Fees (as defined below) and subject to the terms and conditions contained herein, a limited, nontransferable, nonexclusive, worldwide, enterprise-wide and revocable license (the “License”) to use the Services and to access and use all material, information and technology offered as part of the Services including but not limited to documents, articles, reports, software, graphics, text, images and logos, algorithms, processes, user interfaces, designs and know-how (the “Content”) solely for designing and documenting solutions and managing networks and services for Your organization and end users based on the intended purposes of the Service.
    2. License Term. This Agreement will commence upon activation of Your account (the “Effective Date”) and will continue in full force and effect until otherwise terminated pursuant to the provisions hereof.
    3. Restrictions. You acknowledge that the Services and the Content, constitute valuable trade secrets of Teldio and its licensors. Except as otherwise set out in this Agreement, Customer will not (i) copy or use the Services or the Content; (ii) alter, modify, duplicate, translate, de- compile, reverse engineer, or attempt to recreate the Services or the Content, in whole or in part; (iii) modify or create any derivative works from the Services or the Content any part thereof; (iv) merge the Services or the Content with any other software; (v) disclose to any third party any performance information or analysis relating to the Services and the Content; (vi) license, sublicense, sell, convey, assign, transfer, give, lend, rent, transfer or otherwise grant any right to any of the Services or the Content or any of Your rights hereunder, in whole or in part, voluntarily or involuntarily, by operation of law or otherwise, to any person, individual, legal or personal representative, partnership, company, corporation, syndicate, association, trust or governmental body otherwise; (vi) build an identical product to the Services or a product with similar ideas, features and functionality as the Services; and (vii) copy any ideas, features of functions of the Services. You agree to retain, on all copies of any Content You download, all copyright and other proprietary notices contained in the Content. The Services and the Content are protected by Canadian and worldwide copyright laws and treaty provisions. You agree to comply with all copyright laws worldwide in Your use of the Services and the Content and to prevent any unauthorized copying of the Content. Except as expressly provided herein, Teldio does not grant any express or implied right or license to You under any intellectual property right, including under any patent, trade-mark, copyright, trade secret or confidential information of Teldio or its licensors.
  2. CUSTOMER DATA
    1. Customer Data. In the course of using the Services, You may upload certain information, data and material through the Services (the "Customer Data"). You agree that the Customer Data will (i) comply with all applicable laws; (ii) not contain infringing, obscene, threatening, libelous, or other illegal material; (iii) not include material containing software viruses, worms, Trojan horses or other harmful computer codes, files scripts or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware telecommunications equipment; and (iv) not contain any content, work, name, logo or mark that infringes any intellectual property right of any person. You acknowledge that You have obtained the consent to use any Personal Information (as that term is defined in the Personal Information Protection and Electronic Documents Act (S.C. 2000, c.5) (“PIPEDA”) and all other applicable privacy legislation) contained in the Customer Data from the person to whom the Personal Information pertains, and that You have complied with all relevant privacy laws in collecting, using the disclosing such Personal Information.
    2. Ownership. You acknowledge that You own the Customer Data and all intellectual property rights therein, or that You have the right to grant the license to Teldio to use such Customer Data. You will have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness and intellectual property ownership and for obtaining the right to use all of the Customer Data submitted by You. You acknowledge that Teldio will have no responsibility for the Customer Data. You will not be responsible for any content submitted to the Services by other users.
    3. License. You agree to grant Teldio and its third party service providers a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to use the Customer Data for the purposes of analyzing, aggregating and preparing reports and recommendations based on the non-identifiable aggregated data which reports and recommendations will be shared with customers and industry representatives. Teldio will use the Customer Data in accordance with Teldio’s Privacy Policy, which is available at http://d3mnetworks.com/privacy-policy/. You acknowledge that Teldio has the right to access the radio codeplug data for purpose of eliminating the redundant data activities in populating the Services.
  3. FEES
    1. Fees. You will pay Teldio a fee, paid in advance, for ongoing use of the Services (the “Fees”). The Fees will be as set out in Teldio’s current fee schedule available at http://d3mnetworks.com. Teldio reserves the right to terminate Your access to the Services if You provide false or fraudulent billing or contact information.
    2. Fee Increase. Teldio reserves the right to amend its fee schedule from time to time.
    3. Taxes. All fees and other charges specified in this Agreement are exclusive of all applicable goods and services taxes and any other taxes imposed or levied by any government or government agency, including sales or use taxes (the “Purchase Taxes”). You will pay all Purchase Taxes, other than taxes on Teldio’s net income, as a result of the transactions contemplated by this Agreement.
  4. YOUR RESPONSIBILITIES
    1. Account. You are responsible for all of the activity associated with Your account and You agree to notify Teldio immediately in the event of any unauthorized use of Your account or password or if You suspect Your account or password has been compromised in any way. You agree not to misrepresent Yourself in order to gain access to the Services. You are responsible for advising Teldio of any change in Your billing or contact information. Furthermore, You agree to notify Teldio immediately if any employee who held an account leaves Your organization.
    2. Applicable Laws. You must abide by all applicable local, provincial, state and national laws and all relevant treaties and directives in Your use of the Services.
    3. Limiting Access. You will not permit persons other than Your authorized representatives to access the Services.
    4. No Responsibility. Teldio accepts no responsibility and will not be held liable for any delays, performance issues, stoppages, outages, increased costs or other similar events relating to the Services resulting from Your failure to adhere to the provisions set out in this Section.
  5. OWNERSHIP
    1. Ownership of Software. Teldio and its licensors own all right, title and interest in and to the Services and the Content, including without limitation, all copyrights, trade secrets, patents, and other intellectual property rights. Upon termination of this Agreement unless otherwise provided herein, all of Your rights in connection with the Services and the Content, including but not limited to the right to access and use the Services and the Content, will terminate.
    2. Trade-marks. The trade-marks, logos and company names of Teldio or any of its affiliates and licensors used as part of the Services and the Content may not be copied, imitated or used, in whole or in part, without the prior written consent of Teldio or any such affiliate or licensor. Other products, services logos and company names mentioned as part of the Services and in the Content may be the trade-marks of their respective owners.
    3. Proprietary Notices. You agree not to alter, remove, deface or destroy any copyright, trade-mark or proprietary markings or confidential legends placed upon or contained in the Services and the Content or in or on any related material.
  6. WARRANTIES
    1. Services. Teldio warrants that the Services are designed to and will operate in substantial conformity with the specifications set out in the user documentation.
    2. Content. The Content may contain inaccuracies and typographical errors. Teldio makes no representation or warranty regarding the accuracy or completeness of the Content or information accessible while using the Services, or the reliability of any advice, opinion, statement or other information displayed or distributed through the Services. You acknowledge that any reliance on any of the foregoing and Your use of the Services and the Content will be at Your sole risk. Teldio reserves the right, in its sole discretion, to correct any errors or omissions in any part of the Services or in any portion of the Content. Teldio may make any other changes to the Services and the Content at any time without notice.
    3. General Warranty. Teldio warrants that (i) Teldio has the right to enter into this Agreement; (ii) to Teldio’s knowledge, neither the Services nor the Content infringes upon the Proprietary Rights of any third party; (iii) to Teldio’s knowledge, there are no liens, encumbrances or claims pending or threatened against Teldio or that adversely relate to the rights or licenses granted in this Agreement or to the Services and the Content; and, (iv) subject to the standard conditions applicable to shrink wrap software and other foundational software used in the creation of, or required in conjunction with, the Services, no licenses, permission or releases of third party rights are necessary for Your use of the Services in accordance with the terms of this Agreement. For purposes of this Agreement, “Proprietary Rights” means any or all intellectual property and other property or proprietary rights, including, without limitation, patents, copyrights, trade secrets and trademarks.
    4. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES IN THIS SECTION 6, THE SERVICES AND THE CONTENT ARE PROVIDED “AS IS” AND TELDIO AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TELDIO DOES NOT WARRANT THAT THE SERVICES AND THE CONTENT WILL MEET YOUR REQUIREMENTS, THAT THE SERVICES AND/OR THE CONTENT WILL BE SECURE, FREE FROM ERRORS OR FUNCTION WITHOUT INTERRUPTION, THAT ANY STORED DATA WILL BE ACCURATE OR RELIABLE NOR THAT ANY CUSTOMER DATA CAN BE RESTORED FROM ANY PARTICULAR BACKUP PROCEDURE. TELDIO DOES NOT WARRANT THAT USE OF THE SERVICES WILL ENABLE YOU TO ACHIEVE ANY PARTICULAR RESULT OR RESULTS IN YOUR BUSINESS OPERATIONS.
  7. LIMITATION OF LIABILITY
    1. IN NO EVENT WILL TELDIO BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES OR THE CONTENT, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN ADDITION, EXCEPT WITH RESPECT TO CLAIMS BASED ON WILFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL TELDIO BE LIABLE FOR ANY DAMAGES OF ANY KIND GREATER THAN THE AMOUNTS PAID TO TELDIO HEREUNDER. TELDIO WILL NOT BE LIABLE FOR ANY DELAYS OR DAMAGES ATTRIBUTABLE TO PROBLEMS INHERENT IN INTERNET AND ELECTRONIC COMMUNICATION. THESE LIMITATIONS WILL APPLY EVEN IF TELDIO HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF THIS SECTION WILL APPLY EVEN IN THE EVENT OF A FAILURE OF THE ESSENTIAL PURPOSE OF THIS PROVISION.
  8. INDEMNIFICATION
    1. Indemnification by Teldio. Teldio will indemnify, defend and hold You harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees, directly or indirectly resulting from any claimed infringement or violation by Teldio of any Proprietary Right with respect to the Services and the Content; provided, however, that the foregoing notwithstanding, Teldio’s obligation to indemnify will not apply to an infringement or violation that is attributable to any unauthorized use, access or modification of the Services by You or Your employees, agents or customers.
    2. Cooperation. Notwithstanding Section 9.1 of this Agreement, Teldio is under no obligation to indemnify and hold You harmless unless (i) Teldio receives notice of the suit or claim from You and is furnished with a copy of each communication, notice or other action relating to said claim promptly after You receive such notice and each such communication; provided that, failure to deliver timely notice will not relieve Teldio of its obligations hereunder unless Teldio is materially prejudiced by such failure; (ii) Teldio will have the right to assume sole authority to conduct the trial or settlement of such claim or any negotiations related thereto at Teldio’s expense; and (iii) You will provide reasonable information and assistance requested by Teldio in connection with such claim or suit, at Teldio's cost and expense.
    3. Indemnification by You. You will indemnify, defend and hold Teldio harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees, directly or indirectly resulting from (a) any allegation that You have engaged in conduct, which if true would breach Your warranties or obligations under this Agreement; (b) any allegation that the Customer Data infringes the Proprietary Rights of any third party; (c) Your negligent or willful misconduct; and (d) any violation by You of any privacy laws, regulations and directives relating to the collection, use or disclosure of any Personal Information provided to Teldio hereunder. Teldio reserves the right to participate in the defence of any such claim and to be represented by counsel of its choice.
  9. TERM AND TERMINATION
    1. Term. This Agreement will commence on the Effective Date and will continue in full force and effect until terminated in accordance with the terms of this Agreement.
    2. Termination Upon Insolvency. This Agreement will terminate, effective upon delivery of written notice by a party hereto, (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party, (ii) upon the making of an assignment for the benefit of creditors by the other party, or (iii) upon the dissolution of the other party.
    3. Termination Upon Default. The non-breaching party may terminate this Agreement in the event that the other party materially defaults in performing any obligation under this Agreement and such default continues and is not remedied for a period of thirty (30) days following written notice of default; provided, however, that if either party contests either the existence or the basis of a breach asserted by the other party (a “Dispute”), then such Dispute will be resolved pursuant to Section 12.3 and if such Dispute is resolved in favour of the party asserting such breach, then the other party will have thirty (30) days to cure such breach as directed by the third party resolving such Dispute.
    4. Termination for Convenience. Either party may terminate this Agreement for convenience by providing the other party with at least thirty (30) days notice. In the event Teldio exercises its right to termination for convenience hereunder, You will be entitled to a refund for any fees that You have prepaid.
    5. Survival of Certain Terms. All provisions of this Agreement reasonably required to survive termination based on the terms of this Agreement will survive termination of this Agreement. All other rights and obligations of the parties will cease upon termination of this Agreement.
    6. Effect of Termination. Upon termination of this Agreement for any reason Your access to the Services will end immediately and Your account will be disabled. For a period of one (1) year following termination of this Agreement for any reason, Teldio will make available to You a file of the Customer Data if You so request at the time of termination.
  10. CONFIDENTIAL INFORMATION
    1. Neither party will use or disclose any Confidential Information of the other party. A party receiving Confidential Information from the other party will use the highest commercially reasonable degree of care to protect that Confidential Information. The Services and the Content, including methods, ideas or concepts utilized therein, and all information identified by a disclosing party as proprietary or confidential (“Confidential Information”) will remain the sole property of such disclosing party, and will not be used or disclosed to any third party without the express written consent of the disclosing party (except to employees or consultants who are bound by a written agreement with such party to maintain the confidentiality of such Confidential Information in a manner consistent with this provision). Items will not be considered to be Confidential Information if they are (i) available to the public other than by a breach of this Agreement or an agreement with the disclosing party, (ii) rightfully received from a third party not in breach of an obligation of confidentiality, (iii) independently developed by employees of recipient without access to the Confidential Information of the disclosing party, (iv) rightfully known to the recipient at the time of disclosure, or (v) produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production. You agree that the terms and conditions of this Agreement will be considered to be Confidential Information of Teldio.
  11. MISCELLANEOUS
    1. Notices. Any notice required or permitted hereunder will be in writing and will be given by electronic mail at legal@d3mnetworks.com. Such notice will be deemed to have been received twelve (12) hours after it was sent.
    2. Assignment. This Agreement may not be transferred or assigned, in whole or in part, by either party either voluntarily or by operation of law without the prior written consent of the other party, which consent will not be unreasonably withheld.
    3. Governing Law; Arbitration. This Agreement will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Except for disputes for which injunctive relief is sought (for example, to prevent the unauthorized use or disclosure of proprietary materials or information) the following procedures will be used to resolve any dispute arising out of or in connection with this Agreement. Promptly after the written request of either party, each of the parties will appoint a designated representative to meet in person or by telephone to attempt in good faith to resolve any dispute. If the designated representatives do not resolve the dispute within ten (10) days of such request, then an executive officer of each party will meet in person or by telephone to review and attempt to resolve the dispute in good faith. The executive officers will have ten (10) days to attempt to resolve the dispute. Any disputes that are not otherwise resolved by the parties will be submitted to binding arbitration in Toronto, Ontario in accordance with the Arbitration Act, 1991 (Ontario) (the “Act”). Before entering into arbitration, the parties will each appoint an arbitrator, and these two arbitrators will select a third arbitrator to be a member of the arbitration panel. Should the two arbitrators not be able to agree on a choice of the third arbitrator, then the parties willl defer to the procedure for selection of an arbitrator under the Act. None of the arbitrators will be officers or employees of the parties. Each such arbitrator will be a lawyer having experience and familiarity with information technology disputes. The arbitrators will have the right to award costs, fees and expenses, including but not limited to the arbitrators' fees and reasonable lawyers' fees, to the prevailing party. The parties will jointly pay arbitration costs pending a final allocation by the arbitrators. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrator’s decision will be final and binding upon the parties.
    4. Force Majeure. Under no circumstances will either party be liable to the other for any failure to perform its obligations where such failure results from causes beyond that party’s reasonable control.
    5. Independent Contractors. The relationship of Teldio and You established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day‑to-day activities of the other, (ii) constitute the parties as legal partners, joint venturers, co‑owners or otherwise as participants in a joint undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. All financial and other obligations associated with the businesses of Teldio and You are their sole respective responsibilities.
    6. Entire Agreement and Waiver. This Agreement and all documents incorporated by reference hereto will constitute the entire agreement between the parties with respect to its subject matter, and all prior agreements, representations, and statements with respect to such subject matter are superseded. This Agreement may be changed by Teldio upon notification to You. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such breaches and the waiver of any breach will not act as a waiver of subsequent breaches.

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