1. Priority


1.1  The following terms govern your use of the Software (as defined below). In the event of inconsistency between the terms of this Agreement and any other agreement between you and GuardRFID, the terms of this Agreement shall apply to the extent of any such inconsistency involving the Software.


2. Software

1.2  For purposes of this Agreement, “Software” means the GuardRFID AllGuard, TotGuard, Argus and Orchestrator software , which may include without limitation software designated for use on mobile devices, personal computers and computer servers and firmware, made available to you by GuardRFID or its Distributors, in object code form only, together with any upgrades, updates, bug fixes or modified versions made and provided to you by GuardRFID or its Distributors (collectively, “Upgrades”) and modifications to the Software made and provided to you by GuardRFID or its Distributors (“Modifications”).


3. License

3.1  Subject to the terms and conditions of this Agreement (including without limitation the payment of applicable license fees – which would be outlined in your purchase order), GuardRFID grants you a revocable, non-exclusive, non-transferable license (the “License”) to use the Software and any user manuals or documentation accompanying the Software (“Documentation”), solely in association with a GuardRFID hardware product which you have purchased from GuardRFID or its Distributor. The License is subject to the following restrictions:

  1. for Software designated by GuardRFID as firmware (“Firmware”), you must only use the Firmware as embedded in or installed on the applicable GuardRFID hardware product or on third party hardware supplied or approved by GuardRFID, or, if permitted in writing by GuardRFID, you may install the Software on GuardRFID-approved hardware you supply;
  2. your use of the Software is limited to the number of users, machines, ports, processors and locations as specified in the purchase agreement or other terms and conditions by which you purchased the License to use the Software (the “Purchase Agreement”). If the Purchase Agreement is silent, then the License is limited to one concurrent client workstation for each License purchased;
  3. you must not transfer, sell, lease, assign, license or sublicense your rights in the Software or the Documentation to any other person or use the Software or Documentation for third-party training, commercial time-sharing or service bureau use, unless you have obtained GuardRFID’s prior written consent;
  4. you must not make error corrections to or otherwise modify or adapt the Software or Documentation or create derivative works based upon the Software or Documentation, or to permit any third party to do the same;
  5. you must not decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Software to human-readable form for any purpose; and
  6. you must not provide, disclose, or make available to, or permit use of the Software or Documentation by any third party without GuardRFID’s prior written consent.

4. Installation Services

4.1  Installation services for the Software are not included under this Agreement or the License granted under this Agreement. Installation services may be made available to you by GuardRFID or its Distributor for additional fees or charges under and subject to the terms of a separate services agreement to be entered into between you and GuardRFID or its Distributor.


5. Additional Licenses, Upgrades and Modifications

5.1  Your right to use the Software is limited to the License granted under this Agreement. Except as specifically set out in Agreement, the License does not grant you the right to receive Upgrades or Modifications.  If you wish to use the Software beyond the License granted under this Agreement, or if you wish to receive Upgrades and Modifications, you must be in good standing under this Agreement, have entered into separate licensing and/or support and maintenance agreements with GuardRFID for the additional License(s) and the Upgrades and Modifications, and have paid all applicable fees or charges.


6. Evaluation and Beta Copies

6.1  The terms of this Agreement will apply to evaluation or beta copies of the Software notwithstanding that GuardRFID may not charge a license fee for such evaluation or beta copies. Notwithstanding any other provision of this Agreement, the term of an evaluation or beta License will be 30 days. GuardRFID does not provide a software warranty for evaluation or beta licenses.


7. Copies and Proprietary Notices

7.1  You may make one back-up copy of the Software, provided you include in that copy all copyright, confidentiality and proprietary notices that appear on the original in the same form and manner that those notices as on the original. You must not make any other copies of the Software or Documentation without the prior written consent of GuardRFID.


8. Confidential Information

8.1  For the purposes of this Agreement, “Confidential Information” shall mean any information delivered by GuardRFID to you which (a) is marked “Confidential”, “Restricted”, or “Proprietary Information” or has another similar marking, (b) is known by the parties to be considered confidential or proprietary, or (c) should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. You agree that the Software, Documentation and interface information, including the specific design and structure of individual programs, and any business, technical or other information of GuardRFID are Confidential Information.

8.2  You agree to take precautions to prevent any unauthorized disclosure or use of the Confidential Information consistent with precautions used to protect your own confidential information, but in no event less than reasonable care. Except as provided below, you agree to treat the Confidential Information as confidential and shall not disclose the Confidential Information to any person or entity without GuardRFID’s prior written consent. You may only disclose the Confidential Information to your affiliates, employees, agents and contractors who reasonably require access to such Confidential Information to perform obligations under this Agreement and who are bound by confidentiality obligations at least as stringent as those set forth in this Section 8. Should you be faced with legal action to disclose Confidential Information, you shall promptly notify GuardRFID and, upon GuardRFID’s request, shall reasonably cooperate with GuardRFID in contesting such disclosures.

8.3  The obligations set forth in this Section 8 shall not apply to any particular portion of any Confidential Information to the extent that it: (a) now or subsequently becomes generally known or available through no act or omission by you; (b) was or is known by you at the time of receipt of same from GuardRFID; (c) is subsequently rightfully provided to you by a third party without restriction on disclosure; or (d) is independently developed by you as can be demonstrated from your business records and documentation, provided the you had not had access to the Confidential Information prior to such independent development.

8.4  Upon termination of this Agreement or upon the written demand of GuardRFID, you shall, within 21 days following receipt of such written demand, take all reasonable measures to collect and return to GuardRFID, without retaining copies thereof, all tangible embodiments of the Confidential Information in whatever form furnished under this Agreement and shall immediately take all reasonable measures to deliver to GuardRFID, or at the request of GuardRFID, to ensure destruction of all notes, summaries, work, papers or analysis based upon or arising out of Confidential Information, to the extent and as permitted by law and shall provide to GuardRFID a written certification signed by an officer that to the best of such officer’s knowledge after due inquiry, such delivery or destruction has taken place.


9. Ownership

9.1  You acknowledge that, as between GuardRFID and you, GuardRFID, or its licensors, own the Software and Documentation (including any and all related copyright, patent, trade secret and other intellectual property rights) and that you do not have, nor do you acquire by virtue of this Agreement, any right, title or interest in the Software or Documentation, other than the limited right to use the Software and the Documentation in accordance with this Agreement.


10. Term and Termination

10.1  This term of this Agreement shall commence on the Effective Date and remain in effect until terminated in accordance with Section 2.

10.2  This Agreement may be terminated as follows:

  1. either party may immediately terminate this Agreement if the other party becomes insolvent, ceases to do business as a going concern, is adjudged as bankrupt, makes a general assignment for the benefit of creditors, has a receiver or manager appointed for it, takes the benefit of any act in force for insolvent persons, fails to pay its debts when they become due or takes the benefit of any act in force for the winding up or liquidation of corporations;
  2. you may terminate this Agreement, without cause, upon 60 days’ prior written notice to GuardRFID, however, all license fees shall remain due and owing and be non-refundable; or
  3. GuardRFID may terminate this Agreement upon 60 days’ prior written notice to you if any of the following events occur: (i) you fail to pay any undisputed amount due to GuardRFID within 30 days after GuardRFID gives you written notice of such non-payment; or (ii) you are in material breach of any non-monetary term, condition or provision of Agreement, which breach, if capable of being cured, is not cured within 30 days after GuardRFID gives you written notice of such breach.

10.3  Upon termination of this Agreement by you or GuardRFID:

  1. you will pay all your outstanding obligations to us;
  2. you will return to us all copies of the Software, Documentation and Confidential Information in your possession or destroy all such copies and certify to us that you have done so, in accordance with Section 8; and
  3. all your rights in respect of the Software and Documentation under this Agreement will immediately terminate.

10.4  The following provisions if this Agreement will survive the termination of this Agreement: Sections 8, 9, 3, 10.4 and 13 through 18 and any other provisions that by their nature are intended to survive such termination.


11. Limited Software Warranty

11.1  GuardRFID warrants that, for the 15 month period commencing on the date of delivery of the Software to you (the “Warranty Period”):

  1. it owns and/or has the right to license the Software free from all liens, claims, encumbrances, security interests and other restrictions;
  2. the Software does not, and use of the Software will not, infringe any valid patents, copyrights, trademarks, trade secrets or other proprietary rights of any third parties;
  3. the media on which the Software is furnished will be free of material defects in materials and workmanship under normal use; and
  4. the Software will substantially conform to the published specifications set out in the Documentation.

11.2  The limited warranty set forth in this Section 11 does not cover defects arising from or as a result of:

  1. misuse, neglect or use of the Software in a manner not authorized by GuardRFID;
  2. attempts to repair or modify the Software not authorized by GuardRFID;
  3. use of the Software in combination with items, articles, materials, accessories or other products not authorized by GuardRFID;
  4. installation, integration, modification or operation of the Software by persons not authorized by GuardRFID;
  5. failure to maintain the Software as specified or required by GuardRFID;
  6. accident, negligence, lightning, power surge, brown-out or leaking, damaged or inoperative batteries; or
  7. any cause other than the intended normal use of the Software.

11.3  In the event of discovery of any defect during the Warranty Period in breach of the limited warranty set forth in this Section 11, you agree to provide GuardRFID with sufficient detail to allow GuardRFID to verify the error, and GuardRFID shall use all reasonable diligence to correct such defect.

11.4  The limited warranty set forth in Section 11 extends only to you as the original licensee and will not apply to any purchaser, assignee, sub-licensee or other user of the Software. All warranties will be void if any damages occur as a result of your acts or misapplication or misuse of the Software.

11.5  In the event GuardRFID determines that a defect covered by the limited warranty in this Section 11 exists, GuardRFID will, as your sole and exclusive remedy and the entire liability of GuardRFID, and in GuardRFID’s sole discretion: (a) repair the defective Software; (b) replace the defective Software;


12. Support and Maintenance

12.1  GuardRFID may make available for a purchase extended support and maintenance services in respect of the Software to extend the warranty period of the Software beyond the 15 months Warranty Period. Any such extended support and maintenance services will be provided at GuardRFID’s then-current rates and be subject to a separate written agreement between the parties.

12.2  If requested, GuardRFID may, at its sole discretion, provide repairs to the Software for defects not covered under the limited warranty set forth in Section 11 or which occur outside of the Warranty Period. Any such repairs will be provided at GuardRFID’s then-current rates for time and materials and you agree to pay such amounts within 30 days of the date of an invoice from GuardRFID.


13. Disclaimer of Warranties and Limitations of Liability

13.1  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11, ALL SOFTWARE, DOCUMENTATION AND SERVICES PROVIDED BY GUARDRFID UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, GUARANTEES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR DURABILITY, ALL OF WHICH ARE DISCLAIMED BY GUARDRFID AND WAIVED BY YOU TO THE EXTENT PERMITTED BY LAWS. NEITHER GUARDRFID NOR ANY OF ITS REPRESENTATIVES OR LICENSORS WARRANTS THAT THE USE OF THE SOFTWARE PROVIDED PURSUANT TO THIS AGREEMENT WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO THEY WARRANT THAT CERTAIN RESULTS MAY BE OBTAINED BY YOU IN CONNECTION WITH GUARDRFID’S RENDERING OF SERVICES OR PROVISION OF THE SOFTWARE HEREUNDER. GUARDRFID DOES NOT MAKE ANY WARRANTY OR GUARANTEE FOR ANY SOFTWARE OR SERVICES PROVIDED BY ANY VENDORS OR DEALERS OF GUARDRFID AND UTILIZED BY GUARDRFID IN CONNECTION WITH THE PERFORMANCE OF SERVICES OR PROVISION OF THE SOFTWARE BY GUARDRFID PURSUANT TO THE TERMS OF THIS AGREEMENT.

13.2  IN NO EVENT WILL GUARDRFID BE LIABLE FOR:

  1. ANY SPECIAL, EXTRAORDINARY, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA, LOST PROFITS, LOSS OF OPPORTUNITY OR BUSINESS INTERRUPTION, EVEN IF GUARDRFID IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THE ABOVE STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE; OR
  2. LOSS OR DAMAGE TO ANY PROPERTY OR FOR ANY PERSONAL INJURY OR ECONOMIC LOSS OR DAMAGE CAUSED BY SOFTWARE OR THE CONNECTION OF THE SOFTWARE TO OTHER DEVICES OR SYSTEMS.

13.3  IF, AS A RESULT OF OR IN CONNECTION WITH ANY USE OF THE SOFTWARE, GUARDRFID BECOMES LIABLE TO YOU FOR ANY DAMAGES, LOSSES, COSTS, EXPENSES, OR OTHER LIABILITIES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (IN CONTRACT, TORT, PURSUANT TO STATUTE OR OTHERWISE), THEN GUARDRFID’S AGGREGATE LIABILITY TO YOU WILL BE LIMITED TO AN AMOUNT EQUAL TO THE PURCHASE PRICE PAID FOR THE SOFTWARE GIVING RISE TO THE CLAIM.

13.4  ALTHOUGH GUARDRFID MAY PROVIDE BASIC INSTALLATION AND OPERATIONAL SECURITY GUIDELINES WITH THE SOFTWARE, YOU AGREE THAT YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR THE CONTROL, OPERATION AND SECURITY OF YOUR SYSTEMS AND THE SOFTWARE. YOU ALSO ACKNOWLEDGE THAT COMPUTER SYSTEMS AND SOFTWARE ARE NOT SECURE MEDIUMS, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF YOUR SECURITY.  GUARDRFID IS NOT AN EXPERT IN COMPUTER OR NETWORK SECURITY AND, IN ACCEPTING THIS AGREEMENT, YOU AGREE THAT YOU ARE NOT DEPENDING ON GUARDRFID OR ITS AGENTS OR REPRESENTATIVES WITH RESPECT TO SECURITY IN USE OF OR ACCESS TO THE SOFTWARE OR SYSTEMS.


14. Software Limitation

You hereby acknowledge and agree that:

14.1  THE SOFTWARE, OR ANY SYSTEM, HARDWARE, EQUIPMENT OR NETWORK WHICH IS USED IN CONJUNCTION WITH THE SOFTWARE AND WHETHER OR NOT SUPPLIED BY GUARDRFID, IS NOT GUARANTEED TO PREVENT WANDERING PATIENTS, INFANT ABDUCTIONS, INJURY OR DEATH OF PERSONNEL, ASSET DAMAGE/THEFT OR ANY OTHER EVENT FOR WHICH THEY WERE PURCHASED, AND THAT THEY ARE ONLY INTENDED TO PROVIDE ADDITIONAL SAFEGUARDS TO ASSIST IN THE PREVENTION OF EVENTS SUCH AS THOSE DESCRIBED HEREIN;

14.2  you fully understand the foregoing limitations concerning the Software and agree to warn, and obtain acknowledgements from, all users of the Software of the same; and

14.3  you will put into place appropriate procedures, training, safeguards and other measures to prevent the dangers provided above.


15. Indemnity

15.1  You agree to indemnify, protect and hold GuardRFID, and its licensors, licensees, dealers, service providers, directors, officers, employees and contractors (the “Indemnified Parties”) harmless for any claims or damages, whether direct or consequential, compensatory or exemplary, liquidated or unliquidated, relating to or arising out of any of the following:

  1. any intentional misuse of the Software;
  2. any breach of any of your representations, warranties or obligations pursuant to the terms of this Agreement;
  3. failure by you to be in compliance with all applicable laws and regulations; and
  4. any use or disposition, or attempted use or disposition of the Software in violation of this Agreement or not in accordance with the Documentation.

16. Export

16.1  The Software and Documentation, including technical data, may be subject to Canadian and/or United States export control laws, including without limitation the United States Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You agree to comply strictly with all such regulations and acknowledge that you have the responsibility to obtain licenses to export, re-export or import the Software and Documentation.


17. U.S. Government Restricted Rights.

17.1 The software and documentation provided by GuardRFID pursuant to this Agreement are “Commercial Items,” as the term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to United States Government end users (1) only as Commercial Items and (2) with only those rights as are granted to all other users pursuant to the terms of this Agreement.

18. General Provisions

18.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

18.2  No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

18.3  Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

18.4  Jurisdiction. Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, shall be instituted in the courts of the Province of British Columbia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Notwithstanding the foregoing, GuardRFID may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by GuardRFID through injunctive relief and other equitable remedies without proof of monetary damages.

18.5  Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the party at the address set forth for such other party on the signature page of this Agreement, or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 5.

18.6  Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

18.7  Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.