End User License Agreement

PLEAD READ THIS DOCUMENT CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN YOU (THE “LICENSEE”) AND SUPERIOR EQUINE HEALTH AND NUTRITION INC. (THE “LICENSOR”). BY CLICKING THE “AGREE” AT THE END OF THIS AGREEMENT LICENSEE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE LIMITATIONS ON THE GRANT OF LICENSE AND THE DISCLAIMER OF WARRANTIES CONTAINED HEREIN. IF LICENSEE IS NOT WILLING TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE MUST PROMPTLY RETURN THE SOFTWARE TO LICENSOR OR LICENSOR’S AGENT, AND DELETE ANY OF THE SOFTWARE INSTALLED ON THE LICENSEE’S SYSTEM. 

IF THE LICENSEE WISHES TO USE THE SOFTWARE ON A COMPUTER OR NETWORK OTHER THAN THE LICENSED PLATFORM, THEN LICENSEE MUST OBTAIN ADDITIONAL LICENSES AND PAY ADDITIONAL FEES IN ADVANCE OF SUCH INSTALLATION. LICENSEE SHALL CONTACT THE LICENSOR FOR ADDITIONAL INFORMATION. 

1.     DEFINITIONS
1.1     “Agreement” shall mean this Software License Agreement and all Schedules attached hereto.

1.2    “Intellectual Property Rights” includes all patents, inventions, trade-marks, service marks, registered designs, integrated circuits, topographies, including applications for any of the foregoing, as well as copyrights, design rights, know-how, confidential information, trade secrets, and any other similar rights in Canada and in any other country.

1.3    “Licensed Platform” shall mean the computer system on which the Software is being used. 

1.4    “Software” shall mean the Licensor’s computer program known as Feed My HorseTM in object code form, any files delivered by the Licensor (via online transmission or otherwise) to patch, update, or otherwise modify the program, and any related printed or electronic user documentation. 

2.    GRANT OF LICENSE
2.1    Subject to the terms of this Agreement, Licensor hereby grants and Licensee hereby accepts, a non-transferable and non-exclusive license (the “License”) to use the Software, under the price, terms, and conditions specified as Rights in this Agreement. Any rights not expressly granted under this Agreement shall be reserved for Licensor. Source code as well as any other information pertaining to the logic, design, or structure of the Software is specifically excluded from the License granted hereunder. Title to the Software and all copies thereof which Licensee is permitted to make hereunder shall at all times remain with Licensor and all Intellectual Property Rights of whatever nature with respect thereto shall be and remain the exclusive property of Licensor. 

3.    USE OF THE SOFTWARE- RESTRICTIONS AND LIMITATIONS
3.1    Subject to the terms of this Agreement, Licensee has the right under the License, during the term of the License, to install, execute or run the Software on Licensee’s Licensed Platform. 

3.2    Licensee may not modify the Software nor merge any part of it with another software program. Licensee may not attempt to determine the source code for the Software, nor modify, reprogram, translate, disassemble, decompile, or otherwise reverse engineer the Software (except to the extent applicable laws specifically prohibit such restriction). Licensee may not, except as expressly provided herein, use, disclose, sublicense, lease, rent, or transfer the Software, in whole or in part, to any third party, or provide the benefit of its use to any third parties via a service bureau, time sharing or, application service provider services. 

3.3    Licensee may not copy the Software except for a single copy to be used solely for backup or archival purposes. Licensee expressly renounces any right to utilize any Software copy for any other purpose. Licensee shall conspicuously place copyright notices in Licensor’s name on any such copy of the Software. Licensee shall not remove, cover, or otherwise alter any name or other identifying marks of the Software or any authorized copies thereof.

4.    SUBSCRIPTION TERMS
4.1    The License granted hereunder is on a subscription basis and shall be limited to the duration of the subscription term set forth in the Licensee’s purchase agreement. In the event Licensee’s License to the Software expires or terminates for any reason, Licensor shall have the absolute right to remotely, and without additional notice, deactivate or otherwise remove the Software from Licensee’s use. 

5.    PROPRIETARY RIGHTS
5.1    Licensee acknowledges that the Software and all related information is proprietary to Licensor and that all rights thereto, including all Intellectual Property Rights, are owned by Licensor. Licensee further acknowledges that the Software contains trade secrets of Licensor and that the Software is protected by Canadian and international copyright and other intellectual property laws and treaties. Licensee bears all risk of loss of the Software while it is in Licensee’s possession or under Licensee’s care and control. Licensee agrees to notify Licensor immediately of the unauthorized possession or use of the Software. Licensee will promptly furnish full details of such unauthorized possession or use to Licensor, will assist in preventing the recurrence of such possession or use, and will cooperate, at Licensee’s expense, with Licensor to protect Licensor’s proprietary rights, including any Intellectual Property Rights. Licensee’s compliance with this provision shall not be construed as a waiver of any right of Licensor to recover damages from, or obtain other relief against, Licensee. 

5.2    Licensee acknowledges and agrees that the Software is of an extraordinary and unique character and that the inquiry which would be suffered by Licensor in the event of a breach by 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, Licensee agrees that, without in any way limiting the other rights or remedies of Licensor, 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. 

6.     ASSIGNMENT OF RIGHTS 
6.1    Licensor may assign all of its rights and obligations set out in this Agreement and upon such assignment shall be released from all obligations hereunder. The assignee shall then assume all the rights and obligations of Licensor hereunder and become Licensor under this Agreement.

6.2    Neither this Agreement nor any rights hereunder, in whole or in part, shall be assigned by Licensee without Licensor’s written consent, which shall not be unreasonably withheld. 

7.     TERMINATION
7.1    This Agreement shall remain in effect until terminated as provided herein. If Licensee breaches any provision of this Agreement, this Agreement is automatically terminated without notice and all of Licensee’s rights hereunder shall immediately cease. The termination of this Agreement shall not prejudice or affect the accrued rights or claims of Licensor nor shall it release Licensee from any of the restrictions of this Agreement concerning use, possession, copying or reverse engineering of the Software, all of which shall survive termination.

7.2    Licensee must cease using the Software and delete any installed copies thereof from Licensee’s Licensed Platform upon termination of this Agreement. 

8.    CONFIDENTIAL INFORMATION 
8.1    The Software and all other information Licensor discloses to Licensee in connection therewith, shall be considered Licensor’s Confidential Information. Licensee agrees that Licensee, its employees, agents, and representatives shall: (1) keep all Licensor’s Confidential Information strictly confidential, and shall not disclose such information to any other person or entity without Licensor’s express written consent; (2) limit internal disclosure of the Confidential Information solely to its employees, agents and representatives who must be apprised of the Confidential Information to advance the purposes of this Agreement, and only to the extent that they must be apprised of those purposes; (3) contractually bind all such persons to honour the confidentiality and use restrictions imposed upon Licensee; (4) use the Confidential Information solely for the purpose of using the Software as licensed under this Agreement; (5) and upon demand, immediately surrender to Licensor the Confidential Information and all notes, records, documentation, models, software, databases and other items or materials containing such Confidential Information. Confidential Information shall not include: (1) information that is in, or enters in general public access without breach of this Agreement through no fault of Licensee; (2) information Licensee was demonstrably in possession of before receiving it from Licensor; (3) information Licensee can demonstrate was developed by Licensee independently of, and with neither use of nor reference to ESHA’s Confidential Information; and (4) information Licensee receives from a third party without restriction on disclosure and without breach by such third party of a nondisclosure obligation.

9.    PATCHES AND UPDATES
9.1    Licensor may deploy or provide patches, updates, and modifications to the Software that must be installed for continued use by Licensee. Licensor may update the Software remotely without Licensee’s knowledge and Licensee hereby grants consent to Licensor to deploy and apply such patches, updates and modifications.

10.    NO MEDICAL ADVICE
10.1    No part of the Software or any materials made available through the Software is intended to offer medical advice, diagnosis or treatment for your horse and any use thereof is solely at the Licensee’s risk. Such information should not be relied on as a substitute to the clinical advice or care management of a treating veterinarian. No veterinary-client-patient relationship is created under this Agreement. 

11.    WARRANTY
11.1    Licensor warrants that it is either the sole owner of the Software or has the right to sublicense the Software.

11.2     There is no warranty attached to the Software.

11.3    THE WARRANTIES SET FORTH ABOVE SHALL BE EXCLUSIVE AND IN LIEU OF ALL OTHER LIABILITIES, OBLIGATIONS, CONDITIONS AND/OR WARRANTIES, EXPRESSED OR IMPLIED (INCLUDING BUT NOT LIMITED TO ANY IMPLIED AND/OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NONINFRINGMENET AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY IMPLIED AND/OR STATUTORY WARRANTIES ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING OR USUAGE OF TRADE), AND LICENSEE HEREBY WAIVES ALL OTHER RIGHTS, OBLIGATIONS AND/OR WARRANTIES AND ASSUMES ALL RISKS AND LIABILITIES IN RESPECT THEREOF. LICENSOR MAKES NO WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR WITHOUT INTERRUPTION. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE SHALL OPERATE WITH ANY HARDWARE OR SOFTWARE OTHER THAN AS SPECIFIED IN THE DOCUMENTATION. 

12.    LIMITATION OF LIABILITY; INDEMNITY
12.1    THE MAXIMUM AGGREGATE LIABILITY OF THE LICENSOR, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, DISTRIBUTORS, AND RE-SELLERS, 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 LICENSE FEES PAID BY LICENSEE HEREUNDER, REGARDLESS OF A BREACH OF ANY FUNDAMENTAL TERM OR A FINDING THAT THE REMEDIES PROVIDED HEREIN FAILED WITH RESPECT TO THEIR ESSENTIAL PURPOSE. NO ACTION OR PROCEEDING RELATING TO THIS LICENSE MAY BE COMMENCED BY THE LICENSSEE MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES.

12.2    IN NO EVEN SHALL LICENSOR BE LIABLE TO 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 HARDWARE OR SOFTWARE WHICH ARE MADE AFTER THE RELEASE OF THE SOFTWARE; OR (4) DAMAGES ARISING FROM THE USE OF THE SOFTWARE WITH OTHER SOFTWARE. LICENSEE SHALL IDEMNIFY, DEFEND, AND HOLD HARMLESS LICENSOR IN RESPECT OF ALL CALIMS OF DAMAGES EXCLUDED HEREUNDER. 

12.3    LICENSEE AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS LICENSOR FROM AND AGAINST ANY AND ALL LOSSES, COSTS, EXPENSES, CLAIMS, OR DAMAGES ARISING OUT OF ANY CLAIM, SUIT, ACTION, OR JUDGMENT BROUGHT AGAINST LICENSOR BY A THIRD PARTY AS A RESULT OF THE USE BY LICENSEE OF THE SOFTWARE, THE PERFORMANCE, NON-PERFORMANCE, OR IMPROPER PERFORMANCE OF THE SOFTWARE. 

13.    INSOLVENCY AND BANKRUPTCY 
14.1    This Agreement may be terminated in whole or in part at Licensor’s option if: (i) the Licensee ceases to carry on business; (ii) Licensee files a voluntary petition in bankruptcy or insolvency or petitions for reorganization under any bankruptcy law (and such is not dismissed within ten (10) days); (ii) Licensee consents to involuntary petition in bankruptcy or if a receiving order is given against the other party under the Bankruptcy and Insolvency Act (Canada) or the comparable law of any other jurisdiction (and such is not dismissed within ten (1) days); (iv) there is entered an order, judgment, or decree by a court of competent jurisdiction, upon the application of a creditor, approving a petition seeking reorganization or appointing a receiver, trustee, or liquidator of all or a substantial part of Licensee’s assets and such order, judgment, or decree continues in effect for a period of thirty (30) consecutive days, provided, however, that such order, judgment, or decree may remain in effect for longer than such thirty (3o) days, if Licensee is diligently appealing such order, judgment, or decree; or (v) any other event similar in nature or legal effect to a bankruptcy or insolvency affecting Licensee, generally recognized in Licensee’s jurisdiction(s) of incorporation and operation.

14.    HEADINGS
14.1    The article headings in this Agreement are inserted for convenience of reference only and shall not be considered in the interpretation of this Agreement. 

15.    PREAMBLE
15.1    The Preamble forms an integral part of this Agreement.

16.    GOVERNING LAW
16.1    This Agreement shall be governed by and construed in accordance with the laws in force in the Province of Ontario, Canada, and any dispute stemming from this Agreement shall be submitted to the jurisdiction of the courts of the Province of Ontario, Canada. The Parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.

17.    LANGUAGE
17.1    The parties hereto have required that this License and all documents relating hereto be drawn-up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais. 

18.     FORCE MAJEURE
18.1    Licensor shall not be liable to the Licensee for non-performance or delay in performance caused by anything beyond its reasonable control, including without limitation, acts of God, acts or omissions of Licensee, acts of government, war, strikes, lockouts, embargoes, failure of communications networks, or denial of service/access attacks. 

19.     SEVERABILITY 
19.1    Any provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective only to the extent of such invalidity or unenforceability and shall be severed from the balance of this Agreement without invalidating or affecting the remaining provisions of this Agreement in that or any other jurisdiction, which remaining provisions shall continue in full force and effect.  

20.    COMMUNICATIONS
20.1    If Licensee has any concerns about the Software or any questions, comments or requests regarding this Agreement or if any condition in this Agreement requires Licensee to give Licensor notice in writing, then Licensee can direct same to the following address:

SUPERIOR EQUINE HEALTH AND NUTRITION INC.
338 Hwy 638
R.R. #2
Bruce Mines, ON 
P0R 1C0

21.    ENTIRE AGREEMENT
21.1    This Agreement constitutes the entire agreement and understanding between the parties with respect to the matters dealt with herein. All previous agreements, understandings, and representations, whether written or oral, between the parties have been superseded by this Agreement.