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Talisman Platform License

Talisman

Version 1.0, effective May 2024

This Talisman Platform License Agreement (the "Agreement") is entered into by you (either an individual or an entity) ("Customer") and Talisman Cloud, Inc. doing business as Talisman Platform ("Talisman Platform"), as described below. If you are an individual accepting this Agreement on behalf of a company or other legal entity, you represent that you are authorized to bind the entity to the terms of this Agreement and "Customer" will refer to the entity bound to this Agreement, not to you as an individual.

By using or accessing the Software, signing this Agreement or any document that references this Agreement (such as an Order), or by clicking "I agree to the Terms" (or similar button or checkbox) upon downloading or installing the Software, Customer indicates Customer’s assent to be bound by this Agreement. If the Customer does not agree to this Agreement, do not use or access the Software.

1. Definitions

  1. "Software" means the computer programs developed and owned by Talisman Platform to which this License Agreement is attached, however Customer obtains or accesses them. Software includes security patches, updates, or other modifications to the Software supplied by Talisman Platform.
  2. "Subscription" is a commercial offering from Talisman Platform consisting of a license to use, and access to Support for, the Software, for a specific period of time, as further detailed in an Order.
  3. "Subscription Period" is the duration of a Subscription as specified in an Order.
  4. "Order" is a document signed or accepted by Customer authorizing the purchase of the Subscription requested by Customer, the Support Plan, associated fees, and any additional terms offered by Talisman Platform.
  5. "Support" means support provided by Talisman Platform to a Subscriber for the Software. according to the terms of the Talisman Platform Support Services described in Section 5.1.
  6. "Users" means Customer’s employees and all other users who access and use the Software on Customer’s behalf.

2. License Grant

  1. Free License for Trial use. Talisman Platform hereby grants Customer and its Users a worldwide, non-exclusive, royalty-free, non-transferable, non-sublicensable, revocable license to use the Software for Trial purposes. "Trial purposes", as used in this Agreement, means use for the purpose of evaluating Software capabilities.
  2. License for commercial use. If Customer purchase a Subscription from Talisman Platform, Talisman Platform hereby grants to Customer and its Users, collectively as "Subscriber", a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable license to use the specific Software configuration defined in the Order for the Subscription Period. The Order will specify the scope of the Subscription purchased by Subscriber, including: (a) all production or non-production use, not just a representative subset; (b) usage limits (e.g. developer seats or installation limits) (c) any other license parameters; and (d) any other terms and conditions mutually agreed for the purchased Subscription.

3. Intellectual Property

  1. Intellectual Property. All right, title, and interest, including but not limited to intellectual property rights such as copyrights, in and to the Software and any copies thereof and all modifications, extensions, scripts and other derivative works thereof, are owned by Talisman Platform or its licensors. All right, title, and interest, including but not limited to intellectual property rights such as copyrights, in and to the content which may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. All rights not expressly granted are reserved by Talisman Platform.
  2. Feedback. Customer agrees that any materials that it provides to Talisman Platform, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, modifications, improvements, original or creative materials or other information regarding Talisman Platform or the Software or the Support services, whether such materials are provided in email, feedback forms, or any other format (the "Feedback"), shall belong exclusively to Talisman Platform, without any requirement to acknowledge or compensate Customer. Customer agrees to assign, and hereby assigns, all right, title, and interest worldwide in the Feedback and the related intellectual property rights to Talisman Platform and agrees to assist Talisman Platform, at Talisman Platform’s expense, in perfecting and enforcing such rights. Talisman Platform may disclose or use Feedback for any purposes whatsoever without any obligation to the Customer.

4. Conditions of Use

A license granted to Customer by this Agreement is valid only if Customer and its Users adhere to the following conditions:

  1. Maintenance of Copyright Notices. Customer and its Users shall not remove or alter any copyright or license notices that appear in or on the Software.
  2. Modification. Customer and its Users shall not modify, alter, decompile, decrypt, disassemble, translate, or reverse engineer the Software.
  3. Distribution. Customer and its Users shall not sublicense, transfer, lease, rent, or otherwise distribute or make available the Software to any third party.
  4. SaaS. Unless authorized by Talisman Platform, Customer and its Users shall not make the Software available as commercial Software-as-a-Service.
  5. Compliance with Applicable Laws. Customer and its Users shall comply with all applicable laws regarding use of the Software.
  6. Other Conditions. Customer and its Users shall not (i) distribute viruses or other harmful or malicious computer code via or into the Software; (ii) engage in any conduct that disrupts or impedes a third party’s use and enjoyment of the Software; (iii) use the Software for any use other than Customer’s internal business use; and (iv) use unauthorized modified versions of the Software, including without limitation, for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Software.

5. Subscription Terms and Conditions

If Customer purchases a Subscription, the following terms and conditions apply:

  1. Support. Talisman Platform will provide Subscriber with Support for the Software during the Subscription Period and subject to the Talisman Platform Support Policy set forth at https://docs.talismanplatform.com/subscription/support-policy. All instances of Software must be identified in the Order.
  2. Increases in Software Use. Subscriber may increase its use of the Software during the Subscription Period beyond the scope specified in the applicable Orders, provided that Subscriber promptly notifies Talisman Platform of the additional use and pays the applicable Fees.
  3. Subscription Renewal. Subscriptions automatically renew for additional periods equal to one year using Talisman Platform’s then current pricing unless Subscriber notifies Talisman Platform in writing that it wishes either to renew for a longer period, or to end the Subscription at least 90 days prior to the end of the Subscription Period. Fees for renewal are due according to the Fees and Payment terms of this Agreement.
  4. Termination for Change in Services. Talisman Platform may change the terms of Support or the Software from time to time and these changes are effective when made, without affecting the validity of this Agreement. In the event of any material changes, Talisman Platform will attempt to provide Subscriber notice by sending an email to the point of contact address provided by Subscriber. In the event of a material and adverse change to the terms of Support or Software, Subscriber has the right to terminate this Agreement upon 30 days prior written notice to Talisman Platform at the following email address: support@talismanplatform.com. In the event of such termination, Talisman Platform shall reimburse Subscriber a pro rata amount of any fees actually prepaid by Subscriber.
  5. Audit. Upon Talisman Platform’s request with reasonable notice, Subscriber will permit technical and operational audits of Subscriber related to the subject matter of this Agreement. Audits may include verifying Subscriber’s usage of the Software conforms to the usage limits purchased by Subscriber. Audits shall be carried out within Subscriber’s regular business hours and Talisman Platform will honor confidentiality and data protection requirements. If non-compliance is discovered in an audit, the Subscriber will be responsible for all costs associated with carrying out such an audit. In addition, where such an audit reveals Subscriber has exceeded the usage subscribed-for, Subscriber shall pay Talisman Platform prorated fees for the excess usage at the same rate(s) designated in the most proximate Order. If the date excess usage began cannot be determined to Talisman Platform’s satisfaction, excess usage shall be deemed to have commenced on the start date of the Subscription.

6. Fees and Payment

  1. Fees. After Customer authorizes an Order, upon renewal of a Subscription, or for other fees due to Talisman Platform, Talisman Platform will send Customer an invoice. Customer will pay all fees specified in invoices. All payments are due within 30 calendar days of receipt of an invoice from Talisman Platform and are non-refundable. Talisman Platform may suspend or cancel performance of all or part of the Subscription or Services and may change its credit terms (after notifying Customer) if actual payment is not received within 60 calendar days of Customer receipt of Talisman Platform’s invoice. Payments past due 60 calendar days will incur interest at the rate of 1.5% per month or the highest rate permitted by law, whichever is less. Customer will also pay all costs incurred by Talisman Platform to collect undisputed amounts due, including legal fees, whether or not litigation is commenced.
  2. Taxes. All fees are exclusive of any applicable Taxes. Customer will pay to Talisman Platform an amount equal to any Taxes arising from or relating to this Agreement, including without limitation, sales, service, use or value added Taxes, which are paid by or are payable by Talisman Platform. "Taxes" means any form of taxation, levy, duty, customs fee, charge, contribution or impost of whatever nature and by whatever authority imposed (including without limitation any fine, penalty, surcharge or interest), excluding, however, any taxes based solely on the net income of Talisman Platform. If Customer are required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Talisman Platform, then the sum payable to Talisman Platform will be increased by the amount necessary so that Talisman Platform receives an amount equal to the sum it would have received had Subscriber made no withholdings or deductions.
  3. Purchase Orders. Any pre-printed terms on any purchase order that is issued by Customer that are in addition to or in conflict with the terms of this Agreement are null and void.

7. Term & Termination

  1. Termination. If Customer has an active Subscription, this Agreement terminates when Customer’s Subscription terminates. If Customer does not have an active Subscription and is using the Software under a Trial, this Agreement terminates 10 days after Talisman Platform notifies Customer that it wishes to terminate the Agreement.
  2. Termination for Cause. Either party may terminate this Agreement on written notice to the other if the other party fails to comply with this Agreement after it has been notified in writing of the nature of the failure and been provided with 30 days after receiving the written notice to cure the failure.
  3. Effect of Termination. Upon termination of this Agreement:

    a. the rights granted by one party to the other immediately cease;

    b. all fees owed by Subscriber are immediately due upon receipt of the final invoice; and

    c. Customer will delete the Software immediately from Customer’s systems and records and will permit Talisman Platform to audit Customer’s compliance therewith, the whole pursuant to Section 5.5 of this Agreement.

8. Disclaimer of warranties and limitation of liability

  1. Disclaimer of Any Warranties. TALISMAN PLATFORM MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE TALISMAN PLATFORM SOFTWARE OR ANY OTHER MATERIALS PROVIDED HEREUNDER. TALISMAN PLATFORM SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THE TALISMAN PLATFORM SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND.
  2. Limitation of Liability. IN NO EVENT SHALL TALISMAN PLATFORM’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED $500. TALISMAN PLATFORM WILL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF TALISMAN PLATFORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9. Confidential Information

  1. Confidentiality. Talisman Platform and Customer (each a "Receiving Party") shall each retain in confidence all information received from the other party (the "Disclosing Party") pursuant to or in connection with this Agreement, the Software or the Support services, that the Disclosing Party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential ("Confidential Information"), and will make no use of such Confidential Information except as necessary to fulfill their respective obligations under this Agreement. Each party shall treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its legal and financial consultants as required in the ordinary course of that party’s business. Notwithstanding the foregoing, the restrictions set forth above will not apply to (i) information previously known to the Receiving Party without reference to the Disclosing Party’s Confidential Information, (ii) information which is or becomes publicly known through no wrongful act of the Receiving Party, (iii) information that is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, or (iv) information required to be disclosed pursuant to applicable law by enforceable orders of the court or other governmental authority. Customer shall ensure that its Users fully comply with the terms of this Section and shall be responsible for any damages suffered by Talisman Platform as a result of a User’s failure to do so.

10. Miscellaneous

  1. Assignment. Customer shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without Talisman Platform’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Talisman Platform shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
  2. Entire Agreement; Modification; Waiver. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. Talisman Platform may amend this Agreement at any time and upon thirty (30) days’ written notice to Customer. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
  3. Third Party Software. Talisman Platform also makes available certain third party open source software as identified at https://docs.talismanplatform.com/subscription/third-party ("Third Party Software"). The Third Party Software shall be subject to the applicable open source license(s) and not this Agreement, and is provided by Talisman Platform at no charge. To the extent the terms of open source licenses applicable to Third Party Software prohibit any of the restrictions in this Agreement, such restrictions will not apply to such Third Party Software. Customer agrees that access and use of such Third Party Software shall be governed solely by the terms and conditions of such Third Party Software, and that Talisman Platform is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third Party Software, including, without limitation, their content or data practices (including with regards to Customer content and personal data) or any interaction between Customer and the provider of such Third Party Software. Customer irrevocably waives any claim against Talisman Platform with respect to such Third Party Software. Talisman Platform is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Third Party Software, or Customer’s reliance on the privacy practices, data security processes or other policies of such Third Party Software.
  4. Governing Law. This Agreement shall in all respects be governed by the laws of the Province of Quebec, Canada without reference to its principles of conflicts of laws. The parties hereby agree that all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and provincial courts within Province of Quebec, Canada. Customer hereby consents to the personal and exclusive jurisdiction and venue of these courts. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.
  5. Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.
  6. Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
  7. Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given (i) when delivered in person (including by overnight courier), (ii) three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, (iii) or the following business day if transmitted via email, to the address of the party specified in this Agreement or such other address as either party may specify in writing.
  8. Export Law Assurances. Customer acknowledges that the Talisman Platform Software is subject to Canadian export control laws and regulations. Customer may not download or otherwise export or re-export the Talisman Platform Software or any underlying information or technology except in full compliance with all applicable Canadian laws and regulations. None of the Talisman Platform Software or any underlying information or technology may be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) any country to which Canada has embargoed goods; or (b) to any person or entity listed on Canada's Area Control List or the Special Economic Measures Act (SEMA) list. Customer hereby agrees to the foregoing and represents and warrants that they are not located in, under control of, or a national or resident of any such country or on any such list.
  9. Construction. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word "including", when used herein, is illustrative rather than exclusive and means "including, without limitation."