| 1. |
Access and use of Account and Content |
| 1.1 |
Subject to the terms and conditions stipulated herein, you shall have the right to access and use your Account and Content for the Purpose. |
| 2. |
Undertakings, representations and warranties |
| 2.1 |
By you. As an essential condition for CAE to enter into this Agreement with you, you hereby undertake, represent and warrant that: |
|
2.1.1 |
you will only access and use the Account and the Content for the Purpose; |
|
2.1.2 |
you will at all times be responsible for all activity related to your Account; |
|
2.1.3 |
you will at all times maintain your user-ID, password and access codes confidential and, in this regard, you will be responsible for their use and protection; |
|
2.1.4 |
you will immediately report to CAE any real or suspected security breach; |
|
2.1.5 |
you will be solely responsible for complying with applicable laws and regulations related to the Purpose and this Agreement. |
| 2.2 |
None by CAE. THE ACCOUNT AND THE CONTENT ARE PROVIDED "AS IS". WHILE CAE ENDEAVOURS TO PROVIDE INFORMATION THAT IS CORRECT, ACCURATE AND TIMELY, CAE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ACCOUNT AND THE CONTENT INCLUDING, WITHOUT LIMITATION, NO REPRESENTATION OR WARRANTY THAT (I) THE ACCOUNT OR CONTENT WILL BE OF MERCHANTABLE QUALITY AND FIT FOR A PARTICULAR PURPOSE, (II) THE ACCOUNT OR CONTENT WILL BE ACCURATE, COMPLETE, CURRENT, RELIABLE, OR TIMELY, (III) THE OPERATION OF THE ACCOUNT WILL BE UNINTERRUPTED OR ERROR-FREE, (IV) DEFECTS OR ERRORS IN THE ACCOUNT OR CONTENT, BE IT HUMAN OR COMPUTER ERRORS, WILL BE CORRECTED, (V) THE ACCOUNT OR CONTENT WILL BE FREE FROM VIRUSES OR HARMFUL COMPONENTS, OR THAT (VI) COMMUNICATIONS TO OR FROM THE ACCOUNT WILL BE SECURE AND/OR NOT INTERCEPTED. |
| 3. |
Liability |
| 3.1 |
Of you. As an essential condition for CAE to enter into this Agreement with you, you hereby undertake to be held liable for and to indemnify and save harmless CAE and its group of companies, including their directors, officers, affiliates, subcontractors, employees and representatives, from and against any damages, costs or expenses or any claim, action, suit or other proceeding which they, or any of them, may at any time incur or suffer as a result of or arising out of: |
|
3.1.1 |
Any injury to persons or loss of or damage to property or facilities of any person or entity (including attorneys' fees and costs at trial and appeal on a solicitor client basis), which may be or be alleged to be caused by or suffered from the acts or omissions, negligent or otherwise, of you, your officers, employees, servants, affiliates, agents or from any person for whom you are in law responsible for, or anyone using your Account, in connection with your performance under this Agreement; |
|
3.1.2 |
Any claims, liabilities or damages arising out of any violation by you of regulations, rules, statutes or court orders of any local, provincial (state) or federal governmental agency, court or body in connection with your performance under this Agreement; |
|
3.1.3 |
Any liens, attachments, charges or other encumbrances or claims upon or in respect of anything furnished to CAE by you, by anyone acting on your behalf, or by anyone using your Account; |
|
3.1.4 |
Payment of any royalties or claims for damages based upon the use or infringement of any intellectual property rights that results from or is alleged to result from the carrying out of this Agreement or the use or disposal by CAE of anything furnished by you, by anyone acting on your behalf, or by anyone using your Account; |
| 3.2 |
None for CAE. SUBJECT TO APPLICABLE LAW, IN NO EVENT SHALL CAE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS BE LIABLE FOR DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ANY LOSS OR DAMAGES IN THE NATURE OF, OR RELATING TO, LOST BUSINESS, LOST PROFIT, BUSINESS INTERRUPTION, INACCURATE INFORMATION, OR ANY OTHER LOSS INCURRED IN CONNECTION WITH THE USE OR MISUSE OF THE ACCOUNT AND CONTENT, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING LIMITATION SHALL APPLY EVEN IF CAE KNEW OF OR OUGHT TO HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. |
| 4. |
Confidentiality |
| 4.1 |
You understand and agree that this Agreement and all documents, materials and other information as may be disclosed to you in fulfilling the provisions and intent of this Agreement are and shall be considered to be confidential and proprietary to CAE. You shall restrict access only to your directors, officers, employees and representatives, with a bona fide need to know, and shall ensure that any such recipient shall keep secret all such documents, materials and other information including, without limitation this Agreement, and shall not disclose any such information except as authorized by CAE. In addition, you shall ensure that all directors, officers, employees and representatives who access such information each execute a confidentiality agreement in form and substance acceptable to CAE, in favour of CAE. This obligation shall continue to bind you after you shall cease to be a party to this Agreement for whatever reason and shall survive termination of this Agreement, but such obligation of confidentiality shall not apply: |
|
4.1.1 |
to a disclosure to a person who knew the confidential information prior to its being disclosed; and/or |
|
4.1.2 |
to information which has come into the public domain without any breach of the provisions of this Agreement. |
| 5. |
Intellectual property |
| 5.1 |
Other than as otherwise stated herein, no license, right, title or interest is granted to you, directly or indirectly, by implication or otherwise, in or to any copyright, trade-mark, proprietary, confidential, trade secret or any other intellectual property of CAE. |
| 6. |
Term and termination |
| 6.1 |
Term. This Agreement shall come into effect as of your acceptance of the terms and conditions stipulated herein or as of your use of your Account, whichever comes first. Unless terminated earlier in accordance with Subsection 6.2 hereof, it shall terminate immediately and without any formality upon the termination of the Purpose. |
| 6.2 |
Early termination. Notwithstanding Subsection 6.1 hereof, this Agreement may be terminated: |
|
6.2.1 |
by either party upon written notice to the other party if that other party is in breach of this Agreement and fails to remedy that breach following a prior written notice of thirty (30) days to that effect; |
|
6.2.2 |
by CAE immediately at its convenience upon a written notice to the other party to that effect. |
| 6.3 |
Effect of termination. Following the termination of this Agreement for any reason whatsoever: |
|
6.3.1 |
Sections 3, 4, 6.3 and 8 shall remain in effect. |
|
6.3.2 |
you agree to return or destroy, as instructed by CAE, any proprietary or confidential Information received from CAE, together with all copies thereof. |
| 7. |
Linking |
| 7.1 |
The Content may contain links to third-party web sites. These links are provided solely as a convenience to you and not as an endorsement by CAE of the contents of such third-party web sites. CAE is not responsible for the content of any third-party web site, nor does it make any representation or warranty of any kind regarding any third-party web site including, without limitation, any representation or warranty regarding (i) the legality, accuracy, reliability, completeness, timeliness or suitability of any content on such third-party web sites, (ii) the merchantability and fitness for a particular purpose of any material, content, software, goods, or services located at or made available through such third-party web sites, or (iii) that the operation of such third-party web sites will be uninterrupted or error free, that defects or errors in such third-party web sites will be corrected, or that such third-party web sites will be free from viruses or other harmful components. CAE does not wish to be linked to or from any third-party web site which contains, posts or transmits any unlawful information of any kind, including, without limitation, any content constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, provincial, national or international law, regulation which may be damaging or detrimental to the activities, operations, credibility or integrity of CAE or which contains, posts or transmits any information, software or other material which violates or infringes upon the rights of others, including material which is an invasion of privacy or publicity rights, or which is protected by copyright, trademark or other proprietary rights. CAE reserves the right to prohibit or refuse to accept any link to the Content including, without limitation, any link which contains or makes available any content or information of the foregoing nature, at any time. You agree to remove any link you may have to the Content upon the request of CAE. |
| 8. |
Governing law and venue |
| 8.1 |
Governing law. This Agreement shall be governed by the laws of Quebec and the federal laws of Canada applicable therein, excluding its conflict of law rules. |
| 8.2 |
Venue. The exclusive jurisdiction for any disputes related to this Agreement, including its interpretation, is hereby given to the Superior Court of Quebec, district of Montreal. Without prejudice to any other rights or remedies that CAE may have, you acknowledge and agree that damages would not be an adequate remedy for a breach of any of the provisions of this Agreement and CAE shall be entitled to seek the remedies of injunction (final, interlocutory and provisional or preliminary), specific performance and other equitable relief for any threatened or actual breach of the provisions of this Agreement. |
| 9. |
Relationship |
| 9.1 |
This Agreement does not create any employer-employee, joint venture, partnership or similar relationship between the parties. Unless otherwise provided expressly under this Agreement, neither party is authorized or empowered to act as agent for or to bind the other party in any manner whatsoever. |
| 10. |
Miscellaneous |
| 10.1 |
Entire agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, agreements, undertakings, quotations, negotiations and other communications between the parties hereof, whether written or oral, with respect to the subject matter hereof. |
| 10.2 |
Amendment. CAE may unilaterally amend this Agreement at any time. A hyperlink notice will be made available on the content informing you that an updated version of this Agreement is in effect and you will be able to access it by clicking on the hyperlink. By accessing and using your Account after such a notice has been made available, you are deemed to have accepted the terms and conditions of the amendment. |
| 10.3 |
Severability. If any provision of this Agreement shall be determined by any court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be severed from this Agreement and the remaining provisions shall remain in full force and effect. |
| 10.4 |
Enurement. This Agreement shall enure to the benefit of and be binding upon the respective successors and permitted assigns of the parties hereto. |
| 10.5 |
Waiver. The failure of a party hereto to exercise or enforce any right conferred upon it by this Agreement shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time or time thereafter. |
| 10.6 |
Assignment. CAE may unilaterally assign its rights and obligations in this Agreement without needing to obtain your consent. You may not assign your rights or obligations in this Agreement without obtaining the prior written consent of CAE. |
| 10.7 |
Authority. Each party has full authority to enter into and secure performance of this Agreement and, as the case may be, the person consenting to this Agreement on behalf of each party has been properly authorized to enter into this Agreement. |
| 10.8 |
Notices. All questions and comments regarding this Agreement or your Account shall be sent by e-mail to your sponsor. Otherwise, they shall not be deemed received. |
| 10.9 |
Language. The parties agree that this Agreement be drafted in the English language. Les parties s’entendent pour que cette entente soit rédigée en langue anglaise. |
| © 2008, CAE Inc. All rights reserved. |