General Terms and Conditions
To make this Agreement more understandable, we need to define certain terms:
“Distributed Software” means computer programs so designated in Schedule 1 attached to this Agreement and such other computer programs so designated by us and offered to you.
“Software” means the add on Software, for which you place an order (at the time of execution of this Agreement or thereafter). It does include source code of such computer programs. It does include new releases, updates and revisions to such computer programs but only as part of the maintenance options set out in Sections 7 and 8.
“User” means an individual (being your employee or under contract to you) authorized by you to access the Software.
2. The License
2.1 We grant to you a non-exclusive, non-transferable license to use the Software subject to the conditions set out in this Agreement. Your license to use the Software is perpetual, unless the whole of this Agreement is terminated pursuant to the provisions of Section 9.
2.2 You agree to complete a Schedule 1 for whom the Software will be used. If necessary, we will assist you in completing Schedules 1, but ensuring that Schedule 1 is fully and correctly completed.
2.3 You may use the Software and the Serialization Code to load and run the Software only on the Designated environment (specified in a Schedule 1). You may and cannot use the Software on at any site other than such Location. However, if the Designated Equipment becomes temporarily inoperable, then you may use the Software on back-up equipment until the Designated Equipment is repaired.
2.4 Only you and Users have the right to use the Software. You may not make the Software available for use by any third party, may not use the Software to process data of or carry out functions for any third party other than (as may be applicable) your parent or any of your subsidiary companies and only the number of Users for each Location set out in the applicable Schedule 1 may have access to the Software at any one time. Additionally, you may not rent, lease or timeshare the Software.
2.5 Any variations to the above license and/or other conditions affecting your use of the Software are set out in Section 8.
3. Orders and Payment
3.1 Your execution of this Agreement and completion of Schedule 1 constitute an order for the selected Software. You may place subsequent orders for the computer program listed in Schedule 1 (or other computer programs we may offer to you from time to time) by sending to us a signed order form or other signed order request acceptable to us. All such orders are subject to written acceptance by us and shall be governed by the terms and conditions of this Agreement.
3.2 You agree to pay us the license fee for the Software and the maintenance and support charges set out in a Schedule 1 on the terms set out therein. Should you fail to pay us the license fee for Software licensed for use at the Location in accordance with the terms set out in the applicable Schedule 1, we have the right to revoke your license to use the Software at all Locations and you will lose your right to use the Software.
3.3 You shall pay all amounts due to us pursuant to this Agreement within twenty (20) days after receipt of our digital invoice.
3.4 All fees and charges quoted in this Agreement exclude any applicable taxes which will be chargeable at the then prevailing rate. You will be responsible for the payment of any taxes imposed by any governmental taxing authority on the amounts you are liable to pay to us under this Agreement, including, but not limited to, withholding taxes of whatever nature (“Withholding Taxes”) and you may reduce the amount payable to us for licence fees and charges by the amount of such Withholding Taxes. You agree to promptly pay any Withholding Taxes and obtain and deliver to us proof of your payment of such Withholding Taxes together with official evidence thereof issued by the governmental authority concerned, sufficient to enable us to support a claim for a tax credit in respect of any sum so withheld. If we are unable to obtain such tax credit due to your failure to comply with the above provision, then you agree to pay to us a sum equal to the amount of the tax credit not able to be claimed by us.
4. Warranties and Limitation of Liability
4.1 For a period of sixty (60) days from the date of our delivery of the Software to you (“Warranty Period”) we warrant that the Software will function substantially. The software will not produce an incorrect or unexpected result, or to behave in unintended ways when operated on the Designated Equipment running under the operating system(s) specified in Schedule 1.
4.2 If during the Warranty Period you provide us with evidence that the Software does not function substantially we will, at our option, correct the Software Error free of charge no later than thirty (30) days after the expiration of the Warranty Period.
4.3 Except as specifically provided in Sub-Sections 4.1 and 4.2 above, we give no warranties and make no representations, whether express or implied, in respect of the Software or any service we provide under this Agreement and any such warranties and representations are excluded.
Without limiting the generality of the foregoing, we do not give or make any warranty or representation as to the quality, fitness for a particular purpose or performance of the Software, that the Software is error free or will work in combination with computer programs other than the computer programs forming the whole or part of the Software or that any services we provide under this Agreement will result in the Software functioning as if any such warranty or representation had been given or made; and no implied warranty arising by usage or trade, course of dealing or course of performance is made by us nor will any such implied warranty arise by this Agreement and/or your or our conduct under or relating to this Agreement.
4.4 Because the Software is complex you are advised to verify and save your work. In no event will we be liable for any incidental, indirect, special or consequential damages including, but not limited to, loss of profits, loss of business, loss of goodwill, loss of data or interruptions of business arising out of or related to this Agreement or the license or use of the Software or for any claim by any third party.
4.5 Except for damage arising from personal injury or death caused by us, our liability for any loss or damage whatsoever arising from the supply of the Software and/or performance of services under this Agreement in contract, tort (including, but not limited to, negligence or breach of duty imposed by statute) or any other cause of action will not exceed the purchase price for the license of the Software or part thereof causing such loss or damage.
5. License Compliance Security Feature
The Software contains a license compliance security feature which denies access to the Software. To obtain the new certificate, you need only contact us and so long as you are in compliance with all of the provisions of Section 3, Sub-Section 3.2 (but only in so far as Sub-Section 3.2 requires you to pay license fees for the Software within the period specified in a Schedule 1, not in so far as it requires payment of maintenance and support charges), we will immediately supply it to you and, if necessary, instruct you how to use it. You hereby authorize our incorporating the license compliance security feature into the Software and the effects of its operation as set out above and accept that it is your responsibility to contact us to obtain the new License Code.
6. Intellectual Property
6.1 We own and shall retain ownership of the intellectual property rights in and title to the Software. You acknowledge that the Software contains confidential material and agree not to show it or allow it to be shown to any third party in any form whatsoever without our prior written permission. You may: (a) modify, translate or adapt the Software; (b) reverse engineer, disassemble or decompile the Software as is necessary to create computer programs which are inter-operable with the Software but which do not infringe our or our Distributed Software supplier’s intellectual property rights; You may not (c) bypass, delete or misuse any protection method provided for preventing unauthorized use of the Software, including, but not limited to, the license code; or (d) use or copy the Software other than as expressly permitted in this Agreement.
6.2 If you are using the current, unaltered release of the Software and have not combined it with a computer program other than one forming part of the Software, we will defend any action brought against you and pay all your reasonable expenses and damages (as the case may be) for any claim that your use of the Software infringes any patent or copyright owned by any third party or constitutes a misappropriation of a trade secret (“Claim”), so long as you notify us promptly of any Claim and you give us sole control of the defense and negotiation of the settlement or compromise of any Claim.
6.3 You agree not to remove or alter any trade mark, copyright, confidentiality or other proprietary right notice in the Software or the User Manual or affixed to the media or packaging on or in which they are supplied.
7. Software Maintenance
7.1 Under this Agreement, you are entitled to take out maintenance for the Software.
7.2 We will use our reasonable efforts to rectify any Software Error of which you give us written notice and which can be recreated using any unaltered release of the Software first released at any time during the twelve (12) month period preceding the date on which you give us such notice. We will have met our obligation under this Sub-Section if we supply you with any new release, update or revision to the applicable Software which corrects the Software Error.
7.3 When notifying us of a Software Error you must send to us full details of the problem, together with examples of input and output where appropriate and a written explanation of where you think the Software Error lies.
7.4 If we think it necessary, you must allow us or our representative’s full access to the Software and the Designated Equipment during working hours (and any extra agreed cover) so that we can carry out our obligations under this Agreement.
7.5 We will, at your request, supply to you any new release, update or revision of or to the Software. We grant you a non-exclusive, non-transferable license to use any such new release, update or revision to the Software subject to the same conditions that are set out elsewhere in this Agreement.
8.1 You may terminate the whole of this at any time on thirty (30) days’ written notice. However, unless you are exercising your rights under Sub-Sections 4.1 or 4.2, you will not be entitled to a refund of the paid license fee so far.
8.2 We may terminate the whole of this Agreement: (a) immediately by giving written notice to you in the event you breach any of the provisions of Section 3, Sub-Sections 3.2 (for failure to pay a license fee only), 6.1 or 9.1; (b) you have failed to remedy a material breach of this Agreement within thirty (30) days after we have delivered written notice of termination to you specifying the nature of any such material breach (but such notice is not required in case of termination under Sub-Section 8.2(a) above); or (c) immediately in the event of your ceasing to conduct business in the normal course, a receiver, administrator or other similar official is appointed to take control of you or your assets or your becoming insolvent or bankrupt. Additionally, we may terminate your right to maintenance under Section 7 forthwith on written notice to you in the event you fail to timely pay the license charge specified in a Schedule 1.
8.3 If the whole of this Agreement is terminated by you or us pursuant to this Section 8, you lose your right to use the Software. In such event you agree that we return all data, at your costs, with your and our written permission.
You may not assign this Agreement, in whole or in part, or transfer the Software without our prior written consent.
9.2 Export Restriction
You agree to comply fully with all relevant export laws of the United States of America to ensure that neither the Software nor any direct product thereof is exported, directly or indirectly, in violation of United States law.
9.3 Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the law of the Netherlands and you and we submit to the exclusive jurisdiction of the Courts of the Netherlands.