Legal - OMNEX Control Systems ULC

LEGAL

BY USING THIS WEB SITE EACH VISITOR (“USER”) AGREES TO THESE TERMS OF USE (TOU). OMNEX CONTROL SYSTEMS ULC (OMNEX) RESERVES THE RIGHT TO POST CHANGES TO THE TOU ON THIS WEB SITE AT ANY TIME, WHICH WILL THEN APPLY WITHOUT FURTHER NOTICE.

TERMS OF USE APPLY: Users of this Web Site and its content are subject to these TOU (Users). In addition, when using this Web Site to acquire OMNEX products or services directly from OMNEX, a User will also be subject to the OMNEX “Terms of Sale”.

WEB SITE CONTENT: The information and other content on this Web Site is provided to Users solely to assist them in evaluating and purchasing OMNEX products and services and for product support. No part of this Web Site or its content can be used by Users for any other purpose. OMNEX takes reasonable care to maintain up-to-date and accurate information on its Web Site about OMNEX products and services. However, due to the nature of such OMNEX content, it is provided only on an “AS-IS” and “AS AVAILABLE” basis at User’s sole risk. OMNEX shall not be liable for any errors, omissions or inaccuracies in the Web Site content. Web Site content may be modified at any time by OMNEX, without advance notice or reason.

THIRD PARTY CONTENT: Any testimonials, opinions, advice, product or service offers, or other information or content made available on or through OMNEX’s Web Site by third parties (collectively “Third Party Content”) are solely those of their respective providers and not of OMNEX which does not guarantee the accuracy, completeness, reliability or usefulness of Third Party Content. It is the responsibility of the User to evaluate Third Party Content and OMNEX shall not be liable for any damage or loss caused by Users’ reliance on or other use of Third Party Content. Any person that provides Third Party Content for inclusion on OMNEX’s Web Site does so subject to (a) granting a world-wide fully paid-up non-exclusive license to OMNEX to allow the Third Party Content to be edited and displayed by OMNEX on the OMNEX Web Site, and accessed by Users, for the purposes and on the terms in these TOU, and (b) indemnifying and holding harmless OMNEX from any claim or demand made by any third party due to or arising out of the Third Party Content provided to OMNEX.

WEB SITE ACCESS: OMNEX does not warrant that access to or use of its Web Site will be uninterrupted or error free, and shall not be liable for any feature not being accessible, for any unavailability of the Web Site, or any error in its use. The Web Site and its features may be expanded, limited or modified at any time by OMNEX to meet the needs of its Users, or for technical or other reasons, without advance notice or reason. OMNEX may also in its sole discretion, and at any time, discontinue providing, temporarily or permanently, any or all of the Web Site, without notice.

ACCESS REQUIREMENTS: To access some of the content or features of the Web Site, Users may need to enhance or update the hardware or software in their computer systems. OMNEX assumes no responsibility for any failure to access the Web Site, partially or fully, whether due to the User’s system, the Internet network or any other cause.

PASSWORD PROTECTED AREAS: Some areas of the OMNEX Web Site (“Password Protected Areas”) are password protected and available only to qualified OMNEX OEMs and other “partners” who are registered with OMNEX. Registration requires such qualified Users to fully complete the account registration process through their OMNEX account representative, including providing a valid email address for their account. OMNEX reserves the right to deny or revoke registration or access to Password Protected Areas for any User. OMNEX takes reasonable measures to ensure the security of the Password Protected Areas but cannot guarantee the absolute security of information or communications in such Password Protected Areas. Users are responsible for maintaining the security of the password they receive from OMNEX and their accounts in the Password Protected Areas, and shall notify OMNEX if they have reason to believe that the security of their password or accounts has been breached or subject to unauthorized use. OMNEX will not be liable for any loss or liability incurred as a result of an unauthorized person using a User’s password.

CONDUCT ON THE WEB SITE: Users are prohibited from using the Web Site for any unlawful purpose or posting on the Web Site any unlawful, infringing, defamatory, harmful, abusive or other objectionable material of any kind (collectively “Objectionable Material”). If OMNEX is notified of any allegedly Objectionable Material provided by a User, OMNEX may investigate the allegation and determine in its sole discretion whether to remove the Objectionable Material. OMNEX does not pre-screen third party content, and can not ensure that Objectionable Material will not appear on its Web Site, or that it will be promptly removed.

COMMUNICATIONS: OMNEX will have the right to disclose any email sent by a User, or any Objectionable Material, to comply with legal process or to protect the rights or property of OMNEX, its customers, suppliers and Users.

PRODUCT AVAILABILITY: Although OMNEX offers its products and services in many parts of the world, certain OMNEX products and services may not be available world-wide or may be available in certain locales with only limited or specific features and specifications. Due to changes in local laws, “partner” arrangements, customer demand and new product releases, not all OMNEX products or services will continue to be available or can be delivered to meet requested delivery dates. OMNEX reserves the right to discontinue any of its products or services at any time.

PRODUCT SPECIFICATIONS: OMNEX reserves the right to make changes at any time to OMNEX products and services without advance notice. Because some of the product or services modifications may be made at any time but not incorporated into the Web Site until a later date, always check with your OMNEX supplier for the latest products and services features and specifications before incorporating them in any designs or developments or ordering them. OMNEX assumes no responsibility for the timeliness, or failure, to update its products and services specifications on its Web Site, or errors in such specifications.

PRODUCT SALES: All content on the Web Site is provided for information purposes only and does not constitute an offer to sell any OMNEX products and services to a User. OMNEX products and services are available only from authorized OMNEX OEMs, distributors or dealers (“Channel Partners”), unless arrangements have been made in writing to buy directly from OMNEX, in which event OMNEX’s standard Terms of Sale will apply.

CHANNEL PARTNERS: To assist Users in finding OMNEX Channel Partners, OMNEX has provided access or references to them either on or through its Web Site. However, OMNEX does not review and is not responsible or liable for any content posted by the Channel Partners on their web sites, which are their sole responsibility.

SUPPORT DOCUMENTATION: Product manuals and quick start guides (“Support Documentation”) may be available for some OMNEX products to Users for accessing and download from the Web Site. All Support Documentation is subject to a limited license allowing its use solely to configure, install, operate, maintain and otherwise support the OMNEX products that such Users have purchased. Support Documentation is generic in nature and meant only as a guideline, since products are customized in many cases. Users should check with OMNEX at the time of sale to determine if additional information for their specific products is available to supplement the posted Support Documentation. Because Support Documentation can go out of date at any time due to product fixes, enhancements or new model releases, Users should periodically check directly with OMNEX for supplemental or substitute Support Documentation for their specific products. In addition, some OMNEX products may be incorporated into OEM or other third party systems or products, and in such cases Users should contact such third parties for complete support documentation. OMNEX will not be responsible for typographical or other errors in its Support Documentation.

OMNEX’S PROPRIETARY RIGHTS: The OMNEX Web Site and its content, and the Licensed Software and Support Documentation, are protected by copyright and other proprietary laws. See the Copyright Notice and Proprietary Rights Notice.

PRIVACY: This Web Site may collect Personal Information from some Users. Because OMNEX respects the privacy of its Users and their personal information, it has established the OMNEX Privacy Policy to protect such personal information.

LINKS: As a convenience to Users, the OMNEX Web Site provides links to other sites or resources. Because OMNEX does not review or has no control over such sites and resources, OMNEX shall not be responsible or liable for the availability of, or any content, products, services or information at, such sites or resources. Inclusion of any links does not imply any endorsement, affiliation, approval, association or sponsorship by OMNEX of the linked web sites, resources, their operators or owners. OMNEX shall not be responsible or liable in any way for any damages or loss caused by use of or reliance on such third party sites or resources.

EXPORT OF TECHNICAL INFORMATION: Users must comply with all laws that apply to them regarding accessing OMNEX technical data, Licensed Software and Support Documentation and exporting them, and other OMNEX products, from Canada to other countries and to certain non-Canadian nationals.

TERMINATION: OMNEX may terminate a User’s password, account or access, or suspend any User’s access, to all or part of its Web Site, without prior notice, for any conduct that OMNEX in its sole discretion believes is in violation of any applicable law or is in breach of these TOU.

DISCLAIMER OF WARRANTIES: OMNEX DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO THE USE OF THIS WEB SITE AND ITS CONTENT, IN ANY WAY AND FOR ANY PURPOSE.

LIMITATION OF LIABILITY: OMNEX SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING IN ANY WAY FROM THE USE OF, OR INABILITY TO USE, THIS WEB SITE OR ITS CONTENT. OMNEX SHALL NOT BE LIABLE FOR ANY VIRUSES OR OTHER DAMAGES DUE TO ACCESSING OR OTHERWISE USING ITS WEB SITE. ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE WEB SITE IN ANY WAY OR FOR ANY PURPOSES MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR BE PERMANENTLY BARRED.

EXCLUSIONS AND LIMITATIONS: SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, OR THE LIMITATION OR EXCLUSION OF LIABILITY, AND ACCORDINGLY IN THOSE JURISDICTIONS LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

GENERAL: These TOU, and any other applicable terms expressly referred to, constitute the entire agreement between each User and OMNEX governing the User’s access to and use of the OMNEX Web Site and its content. The TOU and the relationship between each User and OMNEX shall be governed by the laws of the Province of British Columbia, Canada without giving effect to any principles of conflicts of laws. Each User hereby attorns and agrees to the non-exclusive jurisdiction of the courts of the Province of British Columbia. The failure by a User or OMNEX to exercise any right or to enforce any provision of the TOU shall not constitute a waiver of such right or provision. If any provision of the TOU is found by a court of competent jurisdiction to be invalid or unenforceable, the court shall give effect to the intentions reflected in the provision to the degree possible, and the other provisions of the TOU will remain in full force and effect. It is the express will of OMNEX and each User that the TOU and related documents have been prepared in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

OMNEX WEB SITE COPYRIGHT AND PROPRIETARY RIGHTS NOTICE

All content on or accessible through this Web Site, including data, artwork, logos, graphics, text, photographs, images, animation, videos, software design and code, web site design and architecture, audio clips and environments (collectively the “Content”) is the property of OMNEX Control Systems ULC (“OMNEX”) or its Channel Partners, and is protected by national and international copyright laws. Web Site Users are granted only a limited licence to access, display, download, print and reproduce reasonable portions of the Content solely for their use as existing or potential customers or suppliers of OMNEX, provided that the Content is not modified and all proprietary notices on the Content are kept intact. Apart from the licensed rights, Web Site Users may not reproduce, publish, translate, merge, sell, distribute, disassemble, reverse engineer, decompile, modify or create a derivative work of, the Content, in whole or in part.

OMNEX is a trade-mark of OMNEX Control Systems ULC.

TERMS AND CONDITIONS OF SALE

OMNEX’s sale of its Products is governed by these Terms and Conditions, its Product Software License, Warranty, Quotation and its OEM certification (as applicable), all of which comprise the sole and entire agreement between the parties pertaining to the ordered Products, and supersede all prior communications or agreements, written or oral.

SHIPPING AND PACKAGING: Shipping and insurance charges are Customer’s responsibility. OMNEX shall upon request, make arrangements, at Customer’s cost, for shipping and insuring ordered Products from OMNEX to Customer’s specified destination site. The methods of shipment and packaging shall be in accordance with OMNEX’s standard procedure, unless alternate arrangements are made.

SHIPPING DATES: Shipping dates for the Products are estimates only and are subject to events beyond OMNEX’s reasonable control.

RISK OF LOSS: the Customer assumes responsibility for all risk of loss or damage to the products commencing at the FCA point, OMNEX’s loading dock in Port Coquitlam, British Columbia, Canada.

TITLE: OMNEX shall retain a security interest in the Products until the Product purchase price is paid in full. OMNEX represents and warrants that it will have the right to transfer to Customer good title to the Products, upon receipt of full payment.

PRICES: Prices are subject to change at any time without prior notice. Quoted prices are valid only if OMNEX receives Customer’s signed Order within the Quotation validity period. OEM Product prices are subject to Customer qualifying as an OEM and submitting the signed OEM Certification with the Order. Because Product prices are FCA (Incoterms) OMNEX’s loading dock, Port Coquitlam, British Columbia, Canada, Customer will pay in addition, all charges for transportation and insurance, as well as all customs and duties charges and taxes however designated or based on the price of the Products or this Agreement.

INTEREST: If Customer fails to pay any amount owing to OMNEX within thirty days of it becoming due and payable, then Customer shall pay interest on all such outstanding amounts at a rate of 2% per month (26.8247% per annum) until such payments including interest thereon are made.

PAYMENT: Payment for the Products shall be made in accordance with the payment terms set out in the Quotation. Any transportation, insurance, customs and duties charges, taxes, and any third party service charges, not billed and payable with the Product prices shall be paid by Customer within 30 days of upon receipt of OMNEX’s invoice.

CHANGE OF DESIGN/SPECIFICATIONS: OMNEX reserves the right, at any time, at its discretion, to discontinue the production or sale of any Products, and the right to improve or change the design or specifications of the Products and their components, without incurring any liability or any obligation to provide such changes or improvements on Products previously purchased by Customer.

RETURN POLICY FOR NORTH AMERICAN CUSTOMERS: If Customer purchases a Product for delivery within the Continental US or Canada, it can be returned within the first 30 days of shipment for a full refund of the purchase price. Shipping and insurance charges are not refundable. After 30 days, opened packages cannot be returned. Unopened packages can be returned up to 180 days from the shipping date, subject to the following re-stocking charges:

Returned to OMNEX 1 - 30 days from date of shipment: no charge

Returned to OMNEX 31 - 90 days from date of shipment: 20% re-stocking charge

Returned to OMNEX 91 - 180 days from date of shipment: 40% re-stocking charge

Unopened Products returned by Customer after 30 days are subject to inspection by OMNEX for incidental damages. If Customer has an open account with OMNEX, the account will be credited for the purchase price less any re-stocking fees in the same manner in which it was paid. Cheques for Product refunds will be mailed to Customers without OMNEX accounts. Customer must call OMNEX for an RMA number prior to returning Products for refund. All returns must have the RMA number clearly marked on the outside package, and must be shipped freight prepaid.

PRODUCT LIABILITY AND RECALLS: Customer will notify OMNEX in writing of all product safety or other product liability complaints or any regulatory/conformance issues that may affect the marketability of Products. OMNEX shall conduct any safety investigations and other reasonably necessary follow-up activities including notifying the appropriate regulatory agency or other governmental if and as required. Customer will provide any information and co-operation requested by OMNEX for such investigations. Customer’s who are OEMs, VARs or other resellers of the Products shall for the active Product life keep records of the names and addresses of Product customers, and Product types, serial numbers and dates shipped, to allow notification of customers with Product safety information. In the event any recall of a Product is required by a government agency or is otherwise determined to be necessary by OMNEX and Customer for safety or other product liability reasons, OMNEX will consult with Customer to establish a reasonable process for managing the recall. Each party will undertake their respective activities established by the recall process and provide the necessary co-operation to implement the recall successfully.

CONFIDENTIALITY AND PROPRIETARY INFORMATION: All Product designs, circuitry, algorithms, communication protocols, firmware, software, technical information and documentation relating to the Products (“Proprietary Information”) is the confidential and trade secret property of OMNEX and all rights, title and interest in and to such Proprietary Information remain in OMNEX. Customer shall treat and protect the Proprietary Information as confidential, shall not reproduce, divulge or provide access to the Proprietary Information in whole or in part to third parties, and shall use the Proprietary Information only as required for normal Product use and support purposes. Customer shall disclose the Proprietary Information to only those of its employees, agents, consultants and customers who shall have a need to know the Information for the purposes described herein, after issuing appropriate instructions to them to satisfy its obligations. Customer shall not reverse engineer or disassemble the Products in order to replicate the Products or to otherwise obtain any Proprietary Information which OMNEX has not provided to it. If Customer advises OMNEX that it proposes to provide its own proprietary information to OMNEX to facilitate the Product purchase, then OMNEX shall enter into its standard mutual Non-Disclosure Agreement with Customer to protect the confidentiality of such information.

TRADE-MARKS AND TRADE NAMES: Any and all trade-marks and trade names under which OMNEX markets or promotes its Products are and remain the exclusive property of OMNEX and Customer shall not acquire any rights thereto. Customer shall use the OMNEX trade-marks and trade names only with the written consent and instructions of OMNEX.

DISCLAIMER OF NON-EXPRESS PROVISIONS: EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION WITH RESPECT TO OMNEX THOSE OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

LIMITATION OF LIABILITY: NOTWITHSTANDING ANY OTHER PROVISION, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, WARRANTY, PRODUCT LIABILITY OR NEGLIGENCE), UNDER THIS AGREEMENT OR AS OTHERWISE RELATED TO THE PRODUCTS AND SERVICES (a) CUSTOMER’S ENTIRE LIABILITY TO OMNEX SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL AMOUNTS ACTUALLY PAYABLE BY CUSTOMER TO OMNEX FOR SUCH PRODUCTS AND SERVICES; AND OMNEX’S ENTIRE LIABILITY TO CUSTOMER SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER TO OMNEX FOR THE PRODUCTS AND SERVICES GIVING RISE TO SUCH LIABILITY.

EXCLUSION OF INDIRECT DAMAGES: NOTWITHSTANDING ANY OTHER PROVISION, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, WARRANTY, OR NEGLIGENCE) OR FOR DAMAGES FOR LOST OR INTERRUPTED BUSINESS, LOST PROFITS OR LOST REVENUES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SURVIVAL: Any terms of this Agreement which by their nature extend beyond its termination (including without limitation Sections ***) will survive any termination of this Agreement and any order termination or Product fulfillment.

SEVERABILITY: Each provision of this Agreement shall be considered severable, and if, for any reason, any provision is or is determined to be invalid, illegal or unenforceable, such provision shall be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.

WAIVERS: No delay or omission by either party to exercise any right or power occurring upon any non-compliance or default by the other party with respect to any of the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties of any of the provisions of this Agreement shall not be construed to be a waiver of any succeeding breach thereof or of any other provision of this Agreement.

NOTICE: Any notice required or permitted to be given as part of this order and resulting agreement shall be in writing and shall be delivered personally, sent by facsimile on a business day, or sent by registered mail to the parties at the addresses as provided on the Order and Confirmation or to such other address as a party may advise by notice in writing. Notices that are delivered personally or sent by facsimile shall be deemed given at the time of delivery or transmission. Notices sent by registered mail shall be deemed to have been given the fifth business day following the date of mailing.

NON-ASSIGNABILITY: This Agreement may not be assigned or transferred by either party, whether in whole or in part, without the prior written consent of the other party, and any assignment or attempt to assign or transfer without consent shall be null and void. Notwithstanding the preceding, a party may assign this Agreement to a wholly owned affiliate of the party, or in connection with a merger, amalgamation or sale of all or substantially all of the assets of the party relating to its industrial wireless products business, without consent and upon prior written notice to the other party.

SUCCESSION: This Agreement shall be binding upon and enure to the benefit of Customer and OMNEX and their respective successors and permitted assigns.

RELATIONSHIP: Customer and OMNEX shall act as independent entities and this Agreement shall not create or be interpreted as creating a joint venture, agency or partnership between the parties. Neither party shall have the authority to, or shall hold itself out as having any authority to, incur, assume or create any liability, obligation or undertaking of any kind in the name of, or on behalf of, or in any way binding upon, the other party, either as an agent or representative of the other.

JURISDICTION: This Agreement shall be interpreted in accordance with and governed by the laws of British Columbia, Canada.

DISPUTE RESOLUTION: The parties will attempt in good faith to resolve any dispute arising out of or in connection with this Agreement. If they are unable to resolve the dispute within 30 days of the dispute arising, the dispute shall be referred to and finally resolved by arbitration in English under the rules of the British Columbia International Commercial Arbitration Centre, before one arbitrator. The appointing authority shall be the British Columbia International Commercial Arbitration Centre. The case shall be administered by the British Columbia International Commercial Arbitration Centre in accordance with its International Commercial Arbitration Rules of Procedure. The place of arbitration shall be Vancouver, British Columbia, Canada.

FORCE MAJEURE: Neither party shall be liable to the other party for any delay or default in performance or compliance with any provision of this Agreement, if such delay or default arises from an event of Force Majeure. The parties shall use reasonable efforts to have the disabling effect of such event of Force Majeure eliminated as soon as reasonably possible. The parties shall promptly advise each other of the occurrence and extent of such Force Majeure event and take reasonable steps to try and mitigate its effect.

WARRANTY

OMNEX warrants to the original purchaser that for a period of 12 months from the date of original shipment of the Products by OMNEX, as evidenced by a copy of the Products’ receipt, under normal use and service (a) the Product hardware will be free from defects in materials and workmanship under normal use and service and (b) the Product software will perform substantially in accordance with OMNEX’s published Product specifications. However, because errors and bugs are a normal and usual occurrence in any software development process, OMNEX does not represent or warrant that the Product software will be bug free or that its operation will be uninterrupted or error free, even though OMNEX uses commercially reasonable efforts to improve and enhance Product software as it determines necessary over the Product life time.

OMNEX’s entire obligation and liability, and Customer’s exclusive remedy under the warranty will be, at OMNEX’s option, either to repair or replace Products returned within the warranty period to OMNEX as described below, or to refund the Products purchase price.

THE WARRANTY DOES NOT APPLY TO: (a) switches or crystals, or (b) to failure due to improper environmental conditions, accident, abuse or misuse of the Products, failure to follow OMNEX’s operating or servicing instructions, failure to incorporate software upgrades which OMNEX provides, or failure of parts subject to unauthorized repairs or modification. In such cases any repairs, corrective services of any nature or replacements will be provided at OMNEX’s then current rates.

In order to qualify for warranty repairs, Customer must first call OMNEX for a Return Materials Authorization (RMA) number from OMNEX and also provide all relevant information such as system serial and assembly numbers to ensure accurate replacement or parts. All Product warranty returns must have the RMA number clearly marked on the outside package, and must be shipped freight collect by OMNEX approved carrier with a copy of the purchase receipt. Repaired Products will be returned by OMNEX to Customer, shipping charges prepaid.

OMNEX’s obligation under any warranty does not include any work required to restore or rebuild data or material destroyed due to Product malfunction.

PRODUCT SOFTWARE LICENSE

SOFTWARE LICENSE:

OMNEX hereby grants a non-exclusive and non-transferrable limited license to use each of the Product software programs for use solely as part of the Products supplied by OMNEX in accordance with the terms and conditions of this Agreement. Customer may use the software only in object code form. Copies of Product software provided by OMNEX in object code form can be used by Customer solely as part of the designated Products, for back-up purposes, and for Product support purposes. Customer shall not remove or obstruct any copyright and other proprietary notices on any copies of the software and related documentation. Customer shall not create by de-compilation or otherwise, any source code or programs from the Product software object code. Customer shall not sell, license, transfer, disclose, otherwise make available any of the Product software programs to anyone except as an integral part of the Products. No title to or ownership of any of the Product software programs or rights therein is transferred to Customer whether to object code, source code, upgrades, enhancements or documentation.

OEM SOFTWARE:

The following provisions shall also apply as part of the Software License in cases where the Products are acquired by Customer as OEM Product purchases to be used as integrated and inseparable elements of Customer’s own unique solution (“Customer’s Solution”) which Customer sells to third parties (“End-Users”) in the regular course of its business.

Customer may only use for integration into its Customer’s Solution those copies of the Product software programs which have been provided by OMNEX and shall not reproduce the Product software programs in whole or in part, in any form, for this purpose except as authorized by OMNEX.

When Customer supplies its Customer Solutions to its End-Users it shall sublicense the Product software programs to such End-Users as part of the Product integrated in Customer’s Solution, and notify the End-Users that under the sublicense;

the Product software programs, including any subsequent updates, are licensed to End-User on a non-exclusive basis for use only as part of the Customer’s Solution, ,

no copy of the Product software programs may be reproduced by End-User in any form, in whole or in part,

no rights in, title to or ownership of the Product software programs are transferred to End-User, and

the End-User may not provide or otherwise make available the Product software programs to any other party separate and apart from the Customer’s Solution.

Termination of the Software License granted by OMNEX to Customer shall not affect any sublicenses granted to its End-Users by Customer under these OEM provisions in good faith prior to receiving notice of termination. Customer shall not be liable to OMNEX for any breach by an End-User of the terms of any sublicense unless Customer has wilfully or negligently contributed to the breach. Customer agrees to cooperate with OMNEX in any proceedings against any End-User alleging breach of the sublicense terms.