End-user license agreement (“EULA”)

TOON BOOM ANIMATION INC. (“TOON BOOM“) IS WILLING TO LICENSE THE SOFTWARE FOR USE BY (I) LEGAL ENTITIES OR (II) INDIVIDUALS WHO ARE OF THE AGE OF MAJORITY IN THE JURISDICTION IN WHICH THEY RESIDE AND/OR IN WHICH THEY USE THE SOFTWARE (“YOU“) UPON THE CONDITION THAT YOU ACCEPT ALL THE TERMS AND CONDITIONS CONTAINED IN THIS EULA.

BY CLICKING ON THE “AGREE” BUTTON, DOWNLOADING, INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU, ON YOUR OWN BEHALF AND ON BEHALF OF EACH ENTITY ON WHOSE BEHALF YOU ACT, HAVE READ THIS EULA, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. A PRINTABLE VERSION OF THIS EULA CAN BE FOUND AT https://www.toonboom.com/end-user-license-agreement. TOON BOOM ENCOURAGES YOU TO PRINT A COPY TO RETAIN FOR YOUR RECORDS. IF YOU WISH FOR TOON BOOM TO SEND YOU A PAPER OR PDF COPY OF THIS EULA, PLEASE REQUEST ONE AT: success@toonboom.com , SETTING OUT YOUR NAME, ADDRESS, AND THE DATE ON WHICH YOU AGREED TO THIS EULA. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, THEN TOON BOOM IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD CLICK THE “DISAGREE” BUTTON AND THE DOWNLOAD AND/OR INSTALLATION WILL NOT PROCEED.

YOU AGREE THAT THIS EULA IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS EULA IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED. BY CLICKING ON THE “AGREE” BUTTON, YOU CERTIFY THAT YOU ARE AT LEAST 18 YEARS OF AGE.

1. COMMERCIAL VERSION END-USER LICENSE

1.1 In consideration for the payment by YOU to TOON BOOM or to any other person, as designated by TOON BOOM, of the applicable fees, and subject to your continuous compliance with this EULA, TOON BOOM hereby grants YOU a personal, non-transferable, non-sublicensable, non-assignable and non-exclusive right to use: (a) the software product or products provided to you for use by TOON BOOM, each as applicable, and (b) any accompanying documentation (the “DOCUMENTATION”) (collectively, the “SOFTWARE“) solely (i) by a single user on a single personal computer unless the PERMITTED NUMBER indicates otherwise; (ii) for the purposes detailed in this Agreement; and (iii) for the period identified in the applicable invoice. “PERMITTED NUMBER” means the maximum number of authorized users that may use the SOFTWARE concurrently. Such number is determined by TOON BOOM and is specified on the applicable invoice.

1.2 YOU may copy an image of the SOFTWARE onto a storage device, such as a file server(s) within your own internal network for the purpose of downloading and installing the SOFTWARE onto computers within the same internal network, as long as the total number of concurrent users able to use the SOFTWARE does not exceed the PERMITTED NUMBER.

1.3 You may make backup copies of the SOFTWARE, provided such copies are used solely for archival or emergency restart purposes. You must reproduce on any such copies all copyright notices and any other proprietary legends that appear on the original copy of the SOFTWARE. You may not sell or transfer any copy of the SOFTWARE made for backup purposes.

1.4 YOU may make and retain, solely for your internal use, up to the PERMITTED NUMBER of physical/hard copies of the DOCUMENTATION.

1.5 If YOU wish to use additional copies of the SOFTWARE or require additional physical/hard copies of the DOCUMENTATION beyond the PERMITTED NUMBER, YOU must obtain additional license(s) and pay additional license fees in respect thereto, or purchase additional copies of the DOCUMENTATION from TOON BOOM at TOON BOOM’s list price, as the case may be.

1.6 Unless stated otherwise, YOU may display, modify, reproduce and distribute any of the content and sample files (the “CONTENT FILES”) provided with the SOFTWARE. However, YOU may not distribute the CONTENT FILES on a standalone basis and YOU may not claim any patent, copyright, trademark, or any other intellectual property rights in and to the CONTENT FILES or in and to any derivative works thereof, the whole of which shall belong solely to TOON BOOM or its suppliers, as the case may be.

1.7 In the event YOU have rented the SOFTWARE, this agreement will apply to YOU as if YOU have purchased the SOFTWARE for the duration of the rental period. Upon expiry of the rental period, YOU will comply with all sections of this Agreement and specifically with section 11 below.

1.8 SEE SECTION 10 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS.

2. EDUCATIONAL VERSION END-USER LICENSE

2.1 If you are an EDUCATIONAL END USER and have licensed the EDUCATIONAL VERSION of the SOFTWARE, you may not use the SOFTWARE for any commercial purposes and will institute reasonable controls to ensure that anyone authorized to use the SOFTWARE (i.e. students and faculty) will not use the SOFTWARE for commercial purposes. Failure by anyone authorized to use the SOFTWARE to comply with restrictions on its use set out in this EULA may result in the termination of your license. YOU agree that TOON BOOM may audit your use of the EDUCATIONAL VERSION for compliance with this EULA at any time, without notice. “EDUCATIONAL END-USER” means primary and secondary schools, colleges, universities, vocational schools and training centers, public libraries, youth organizations and institutions providing organized educational programs to students (including mature students) and young people, and their respective students, teachers, administrators, staff and board members; “EDUCATIONAL VERSION” means that version of the SOFTWARE targeted and geared specifically towards the needs of EDUCATIONAL END-USERS. SEE SECTION 10 FOR ADDITIONAL WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS.

3. TRIAL VERSION END-USER LICENSE

3.1 If a trial version of the SOFTWARE has been licensed to YOU, in consideration for your agreement to be bound by the terms of this EULA and your interest in evaluating the SOFTWARE to determine whether YOU will license a commercial version of the SOFTWARE, TOON BOOM hereby grants YOU a personal, non-transferable, non-sublicensable, non-assignable and non-exclusive right to use one copy of the SOFTWARE and CONTENT FILES supplied with the SOFTWARE on a temporary basis. After YOU download and install the SOFTWARE you agree to solely use the SOFTWARE for your personal evaluation purposes and agree not to use the SOFTWARE for any commercial purposes (including but not limited to animation production, or the creation of trailers or teasers of commercial works) or for use in educating any third party. In order to use the SOFTWARE for commercial or educational purposes, you must purchase a commercial or educational license. Your right to use the SOFTWARE will terminate automatically after twenty one (21) days from installation or as otherwise specified by TOON BOOM (the “TRIAL PERIOD”).

3.2 If following or during the TRIAL PERIOD, YOU wish to license a commercial version of the SOFTWARE YOU must enter into a separate standard license agreement for the SOFTWARE and pay the applicable license fees.

3.3 DISCLAIMER: TOON BOOM will not be liable for any losses, damages or for the security of your property in connection with the use of the trial version of the SOFTWARE. SEE SECTION 10 FOR ADDITIONAL WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS.

4. LICENSE UPGRADES OR UPDATES

4.1 Depending on the license to SOFTWARE YOU have purchased from TOON BOOM and the accompanying support plan you have subscribed to, upgrades, updates, and new releases may be made available to YOU, which will be subject to these license terms and any supplemental license terms provided with such upgrade, update or new release. If your license or support plan does not provide for upgrades, updates or new releases to which YOU would like access, you may need to purchase a new license or a supplementary support plan in order to gain such access. Descriptions of our support plans can be found at https://desk.toonboom.com/hc/en-us/articles/360008502914-Support-Offerings .

4.2 After YOU install any upgraded version of the SOFTWARE, the original version of the SOFTWARE and the updated version of the SOFTWARE may not be used by different users unless under separate licenses. YOU may continue to use any previous version in accordance with its end-user license agreement only if (a) the upgrade and all previous versions are installed only on the same computer and used by the same user; (b) the previous versions or copies thereof are not transferred to any other party; and (c) YOU accept that any obligation TOON BOOM may have to support the previous version may end upon the availability of the upgrade. No other use of the previous version is permitted after installation of an upgrade.

5. PRE-RELEASE/BETA TERM SOFTWARE

5.1 This section applies solely to pre-commercial release or beta software (the “PRE-RELEASE SOFTWARE”). The PRE-RELEASE SOFTWARE does not represent the final product from TOON BOOM, and may contain bugs, errors and other problems that could cause system or other failures and data loss. TOON BOOM may never commercially release the PRE-RELEASE SOFTWARE however, YOU agree to keep all information, and experiences relating to the PRE-RELEASE SOFTWARE confidential until such time that TOON BOOM commercially releases the PRE-RELEASE version, or until the information independently becomes public knowledge. If YOU received the PRE-RELEASE SOFTWARE agreement, your use of the SOFTWARE is also governed by this EULA, with particular attention to section 7 below. YOU will return or destroy all copies of PRE-RELEASE SOFTWARE upon request by TOON BOOM or upon TOON BOOM’s commercial release of such PRE-RELEASE SOFTWARE. YOUR USE OF PRE-RELEASE SOFTWARE IS SOLELY AT YOUR OWN RISK. SEE SECTION 10 FOR ADDITIONAL WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS.

6. CLOUD/HOSTED SOFTWARE

6.1 This section 6 applies solely to the following SOFTWARE: Producer software.

6.2 If a CLOUD version of the SOFTWARE has been licensed to YOU and YOU opt to have the SOFTWARE hosted on TOON BOOM’s virtual machine (the “TOON BOOM CLOUD”), you hereby acknowledge and agree that all of your CONTENT will be hosted on a computer in the cloud managed, but not necessarily owned, by TOON BOOM. For purposes of this EULA, the term CONTENT includes, without limitation, information, scene, storyboard, videos, audio files, data, text, photographs, written posts and comments generated, provided, or otherwise made accessible on or through the SOFTWARE by YOU.

6.3 YOU retain ownership of all the CONTENT created or uploaded to the TOON BOOM CLOUD using the SOFTWARE and YOU hereby represent that all such CONTENT will at all times be in compliance with all applicable laws, rules and regulations.

6.4 YOU acknowledge that all CONTENT will be uploaded to the TOON BOOM CLOUD and accessed at your own risk and that TOON BOOM does not assume any responsibility for this CONTENT. While TOON BOOM agrees to use reasonable efforts to protect the integrity of your CONTENT, TO THE GREATEST EXTENT PERMISSIBLE BY APPLICABLE LAW, TOON BOOM DOES NOT GUARANTEE OR WARRANT THAT ANY CONTENT YOU MAY STORE OR ACCESS THROUGH THE SOFTWARE ON THE TOON BOOM CLOUD WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION, LOSS, OR REMOVAL IN ACCORDANCE WITH THE TERMS OF THIS EULA, AND TOON BOOM SHALL NOT BE RESPONSIBLE SHOULD SUCH DAMAGE, CORRUPTION, LOSS, OR REMOVAL OCCUR. It is your responsibility to maintain appropriate alternate backup of your information and CONTENT.

7. RESTRICTIONS

7.1 Unless otherwise specifically permitted herein, YOU hereby agree never to:

7.1.1 rent, lease, lend, give the SOFTWARE and CONTENT FILES to any third party;

7.1.2 assign this EULA or any obligations arising hereunder, or transfer the SOFTWARE and CONTENT FILES, to any third party, (i) without such third party agreeing to be bound by the terms of this EULA in writing, and (ii) without TOON BOOM’s prior written consent;

7.1.3 copy, except and only to the extent copying is expressly permitted by applicable law, the SOFTWARE and CONTENT FILES; any permitted reproduction of the aforementioned must reproduce on any such reproductions all copyright notices and any other proprietary legends affixed on the original copy of the SOFTWARE and CONTENT FILES;

7.1.4 unless the PERMITTED NUMBER is more than one, use or access the SOFTWARE on more than one computer at any one time, or permit any person other than your employee and sub-contractors to use the SOFTWARE;

7.1.5 modify, reverse engineer, decompile, disassemble or create derivative works from the SOFTWARE or its proprietary source code; however, you may, where made available, access and make use of the Software Development Kit open interface application to develop your own special effects, features, add-ons and plug-ins for use in conjunction with the SOFTWARE, and to otherwise customize and extend the SOFTWARE;

7.1.6 use the SOFTWARE outside of the territory which it was purchased, therefore, YOU may not export the licence to another jurisdiction even if the PERMITTED NUMBER is more than one.

7.1.7 distribute the CONTENT FILES on a standalone basis;

7.1.8 make any claim to any patent, copyright, trademark or any other intellectual property right in and to the SOFTWARE, CONTENT FILES or in and to any derivative works thereof; and

7.1.9 otherwise use the SOFTWARE and CONTENT FILES for the purposes it is designed for and as expressly permitted herein.

7.2 YOU agree not to: (a) engage in the manufacture, use, distribution or transfer of counterfeit, pirated or illegal software in connection with your use of the SOFTWARE; (b) use any counterfeit, pirated or illegal version of the SOFTWARE; or (c) publish or distribute any work or content created or modified using any counterfeit, pirated or illegal version of the SOFTWARE. YOU may not provide for use in any capacity the SOFTWARE to any party that YOU have reason to believe is engaged in these activities or to permit any contractor, service provider, employee, consultant, or any third party with whom YOU work to use any software which counterfeits, pirates, or otherwise infringes on the intellectual property rights in, the SOFTWARE. YOU agree to report to TOON BOOM any suspected counterfeiting, piracy or other intellectual property infringement in computer programs, manuals, marketing materials of, or in connection with, the SOFTWARE as soon as YOU become aware of it. YOU will cooperate with TOON BOOM in the investigation of any party suspected of these activities (including providing the ability review software code which has been created using, or access systems hosting, the SOFTWARE or a suspected counterfeited, pirated or unauthorized version of the SOFTWARE) and where such activities have occurred, cause them to cease immediately. Non-compliance by you with this clause may result in the immediate termination of your right to use the SOFTWARE.

8. INTERNET CONNECTIVITY AND PRIVACY

8.1. TOON BOOM shall only collect, use, store and disclose personal information in compliance with:

8.1.1 applicable Canadian privacy legislation; and

8.1.2 TOON BOOM’s privacy policy, which is accessible at http://www.toonboom.com/privacy.

8.2 Solely in connection with Producer software, TOON BOOM may collect personal information from YOU such as name, address and contact information for the purposes of issuing and managing a license for the SOFTWARE, including providing any ongoing service and support.

8.2.1 TOON BOOM does not sell your personal information, or otherwise disclose your personal information to third parties for their own use. In some cases, TOON BOOM works with third parties to process or store your personal information on its behalf. Both TOON BOOM and its partners may store this information in countries other than the country in which YOU are located at the time of collection. TOON BOOM establishes contracts with all of its partners requiring them to store your data securely and in compliance with applicable law, and to process your data in accordance with the limited purposes we have described. While no security measures are impenetrable, TOON BOOM employs, and requires its partners to employ, appropriate technological, organizational and physical safeguards to protect your data. In the event of a security incident, TOON BOOM will act swiftly to contain and respond to any data loss in compliance with its legal obligations. TOON BOOM and its partners will only store your personal information for as long as necessary to fulfill the above purposes or as required by law, whichever is longer, after which it will be deleted or anonymized.

8.3 YOU acknowledge and agree that the SOFTWARE may cause your computer to automatically connect to the Internet in order to communicate with a TOON BOOM web site for purposes that may include providing YOU with additional information and product activation.

8.4 When the SOFTWARE automatically connects to the Internet, an Internet Protocol address (the “IP ADDRESS”) that is associated with your current Internet connection is sent to a TOON BOOM web site.

8.5 The SOFTWARE may include product activation and other technology designed to prevent unauthorized use and copying. This technology, once connected to the Internet, may transmit your product code to TOON BOOM and in doing so may prevent or prohibit uses of the SOFTWARE that are not permitted. To protect licenses from unauthorized use, if the SOFTWARE detects the use of fraudulent licenses, it may notify Toon Boom by sending the computer’s name and serial number, version, IP address, user’s names, email and username. You hereby consent to such communication in that event.

8.6 Whenever the SOFTWARE makes an Internet connection and communicates with a TOON BOOM web site, the TOON BOOM Privacy Policy shall apply (http://www.toonboom.com/privacy). The TOON BOOM Privacy Policy allows tracking of website visits and it addresses the topic of tracking and use of cookies, web beacons and similar devices.

8.7 The SOFTWARE may also include an optional “customer experience improvement program” feature whereby usage information is collected and sent to TOON BOOM. The data will consist of a basic hardware description, such as the app version, location, licence type, operating system platform and version, screen resolution, OS language and application selected language, and usage information (sessions, events, views). This data will not be used to identify you. TOON BOOM will only use this information to improve the SOFTWARE, and may share the information with third parties for the same reason. The “customer experience improvement program” is enabled by default but is voluntary. If you prefer not to participate in the “customer experience improvement program”, you can opt out when you first launch the software, by using a global preference, or by a command line argument.

8.8 If you provide access to the SOFTWARE to other individuals, you represent that you have obtained the required consent from these individuals to the collection of their personal information, as described in this section.

9. OWNERSHIP AND COPYRIGHT

9.1 The SOFTWARE and CONTENT FILES are protected by law, including copyright laws and international treaty provisions. The SOFTWARE is licensed to YOU, not sold. Except for the limited license granted hereunder, TOON BOOM and its suppliers retain all right, title and interest to the SOFTWARE and all other materials supplied with the SOFTWARE, and all intellectual property rights therein, including and all patents, copyrights, trademarks, products names, logos. All rights not expressly granted herein are reserved by TOON BOOM and its suppliers.

10. LIMITED WARRANTY AND LIMITATION OF LIABILITY

To the greatest extent permitted by the law:

10.1 TOON BOOM warrants that for a period of ninety (90) days from the date of download, when used with a recommended operating system and hardware configuration, the SOFTWARE will perform in substantial conformance with the DOCUMENTATION (the “LIMITED WARRANTY”). TOON BOOM’s and its suppliers’ entire liability and your exclusive remedy shall be, at TOON BOOM’s option (a) return of the price paid (if any) for the SOFTWARE, or (b) repair or replacement of the SOFTWARE that does not meet this LIMITED WARRANTY; provided in either case that the SOFTWARE is returned to TOON BOOM with an acceptable proof of purchase. YOU will receive the remedy elected by TOON BOOM without charge, except that YOU are responsible for any expenses YOU may incur (e.g. cost of shipping the SOFTWARE to TOON BOOM). This Limited Warranty is void if failure of the SOFTWARE has resulted from accident, abuse, misapplication, abnormal use or a virus. This Limited Warranty gives YOU specific legal rights. YOU may have additional rights which vary from jurisdiction to jurisdiction. For further warranty information, please contact us through our website at http://www.toonboom.com.

10.2 EXCEPT AS SPECIFIED IN THE LIMITED WARRANTY IN SECTION 10.1, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND. TOON BOOM AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST LATENT DEFECTS, TITLE AND NON-INFRINGEMENT. TOON BOOM AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL MEET ANY OR ALL OF YOUR PARTICULAR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE DETECTED OR CORRECTED. FURTHER, TOON BOOM AND ITS SUPPLIERS DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULT OF THE USE OF THE SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND THE PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU.

10.3 IN NO EVENT SHALL TOON BOOM OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES, WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFIT, INTERRUPTION OF ACTIVITIES, LOSS OF INFORMATION, COMPUTER PROGRAMS, FILMS OR OTHER MATERIALS OR OTHER PECUNIARY LOSSES AND FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, ECONOMIC OR PUNITIVE DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE AND DOCUMENTATION, EVEN IF TOON BOOM OR ANY OF ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION.

10.4 NOTWITHSTANDING ANY PROVISIONS OF THIS EULA, TOON BOOM’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE LICENSE FEES ACTUALLY PAID BY YOU FOR THE SOFTWARE, IF ANY, RELATED TO THE CAUSE OF ACTION.

10.5 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

11. TERM AND TERMINATION

11.1 In the event of an actual or threatened claim of infringement of any intellectual property right by a third party (“INFRINGEMENT CLAIMS”), TOON BOOM reserves, at its sole election, the right to (i) terminate this EULA and the rights granted hereunder without prejudice to any other rights, or (ii) modify or replace the SOFTWARE such that it is no longer subject to an INFRINGEMENT CLAIM. In the event TOON BOOM terminates this EULA due to INFRINGEMENT CLAIMS, TOON BOOM will refund to you the fees paid by YOU, if any. The right to receive such refund shall be your sole remedy in the event of such termination. In lieu of so terminating this EULA, TOON BOOM may, at its sole option, modify or replace the SOFTWARE such that it is no longer subject to an INFRINGEMENT CLAIM.

11.2 This EULA will terminate automatically if YOU fail to abide by any of its provisions or upon any other event set out expressly in the EULA as a termination of your license or use of the SOFTWARE. In the event of such termination, you must destroy the SOFTWARE and any copies of it in your possession.

11.3 YOU may terminate this EULA by destroying the SOFTWARE and any copies of it in your possession.

11.4 Upon termination or expiry of this EULA in the case of a rental license, YOU shall immediately cease using the SOFTWARE and acknowledge that the SOFTWARE will automatically stop functioning on all computers that YOU downloaded and installed the SOFTWARE on.

11.5 The provisions of sections 4, 5, 6, 7, 9, 10.2, 10.3, 10.4, 10.5, 12, and 13 hereof shall survive termination of this EULA.

12. SPECIAL TERMS AND CONDITIONS FOR Adobe “Flash” File Format (SWF)

12.1 THE SWF OUTPUT OF THE SOFTWARE IS PROVIDED TO YOU ON AN “AS IS” BASIS AND “WITH ALL FAULTS”, WITHOUT ANY TECHNICAL SUPPORT OR WARRANTY OF ANY KIND FROM TOON BOOM AND ITS SUPPLIERS. YOU ASSUME ALL RISKS THAT THE SWF AND FLV ARE SUITABLE OR ACCURATE FOR YOUR NEEDS AND YOUR USE OF THE SWF IS AT YOUR OWN DISCRETION AND RISK. TOON BOOM AND ITS SUPPLIERS DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES FOR THE SWF OUTPUT INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT, TITLE OR QUIET ENJOYMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

12.2 NEITHER TOON BOOM NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), ARISING OUT OF THE USE OF THE SWF AND FLV WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, EVEN IF TOON BOOM AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE SWFIS PROVIDED TO YOU FREE OF CHARGE AND IN NO EVENT WILL TOON BOOM AND ITS SUPPLIERS BE LIABLE FOR ANY AMOUNT GREATER THAN WHAT YOU ACTUALLY PAID FOR THE SWF.

12.3 The Special Terms and Conditions in this section 12 are supplemental to the other terms and conditions of this EULA. In case of conflict, these Special Terms and Conditions shall prevail over the other terms and conditions of this EULA.

13. GENERAL PROVISIONS

13.1 Notice: Any notice or consent required or permitted by this EULA shall be either personally delivered or mailed by registered or certified mail, return receipt requested, to each of the parties hereto at the address specified on the first page of this EULA, or to such address or addresses or forwarded by facsimile transmission or by e-mail (with confirmation of receipt), as the parties hereto may designate by notice given in accordance herewith. Such notices shall be deemed delivered on the date of actual receipt, or upon attempted delivery if acceptance of delivery is refused.

13.2 Entire Agreement: This EULA constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and merges all prior and contemporaneous, oral or written representations, propositions, negotiations or agreements related thereto.

13.3 Assignment: This EULA and any obligations hereunder may not be assigned by YOU except in the manner specifically provided for herein under subsection 7.1.2. TOON BOOM reserves the right to assign this EULA and its obligations hereunder to any third party agreeing to be bound by the terms of this EULA in writing in its sole discretion. Any assignment of this EULA or any obligations hereunder not in conformity with this section 13.3 shall be void.

13.4 Binding Effect: The provisions of this EULA shall be binding upon, and shall inure to the benefit of the parties hereto, and their respective successors, assigns, and legal representatives.

13.5 Independent Parties: Nothing in this EULA shall be deemed to create an employment, agency, joint venture or partnership relationship between the parties hereto or any of their respective agents or employees, or any other legal arrangement that would impose liability upon one party for the act or failure to act of the other party. Neither party shall have any power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other party, or to bind the other Party in any respect whatsoever. Further, nothing in this EULA shall entitle either party to make any representation or give a warranty on behalf of any other party.

13.6 Severability: If any of the covenants or provisions of this EULA, or any part thereof, are hereafter construed to be invalid or unenforceable, such covenant or provision shall not affect the remainder of the covenants or provisions, which shall be severable and be given full effect without regard to the invalid portion(s).

13.7 Modification/Waiver: Neither this EULA nor any provision hereof may be modified, waived, discharged or terminated orally, but only by means of a writing signed by an authorized representative of the waiving party. No waiver of any breach of any provision of this EULA shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

13.8 Counterparts: This EULA may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument.

13.9 Section Headings: The section headings used in this EULA are intended for convenience only and shall not be deemed to supersede or modify any provisions.

13.10 Construction: If any ambiguity or question of intent or interpretation arises, this EULA shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favouring or disfavouring any party by virtue of the authorship of any of the provisions of this EULA.

13.11 Governing Law and Jurisdiction: This EULA shall be deemed to be a contract made under and shall be governed by and construed in accordance with, the laws of the Province of Quebec (other than choice of law rules) and the laws of Canada applicable therein. At all times during this EULA, the parties hereto agree to comply with all laws, regulations and policies which are in effect in the Province of Quebec and Canada as they may apply to the conduct of business under this License Agreement. The parties hereto hereby agree that the exclusive place of jurisdiction to resolve any claim or dispute relating to this License Agreement shall be the courts located in Montreal, Quebec. Each party hereto hereby irrevocably waives any objection it may have to the venue of any action, suit or proceeding brought in such courts or to the convenience of the forum. A prevailing party in any such action, suit or proceeding shall be entitled to recover reasonable attorneys’ fees and costs.

13.12 Language: The parties hereto hereby acknowledge having requested that this License Agreement be drafted in the English language only. A French language version is available upon request to success@toonboom.com . Les parties aux présentes reconnaissent avoir exigé que la présente convention ne soit rédigée qu’en anglais seulement. Une version en langue française est disponible sur demande à success@toonboom.com .