USER LICENSE AGREEMENT
IMPORTANT: DO NOT DOWNLOAD OR USE THIS SOFTWARE UNTIL YOU (THE “LICENSEE”) HAVE READ AND AGREED TO THE TERMS OF THIS AGREEMENT. BY CHECKING THE ACCEPTANCE BOX, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, LICENSEE ACKNOWLEDGES AND AGREES THAT ALL SUCH USE IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. ANY SUCH USE WILL CONSTITUTE LICENSEE’S ACCEPTANCE AND RESULT IN A BINDING AND LEGALLY ENFORCEABLE AGREEMENT BETWEEN THE LICENSEE AND LICENSOR IDENTIFIED BELOW THAT ISSUED THE LICENSE KEY. IF YOU ACCEPT THESE TERMS ON BEHALF OF ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO LEGALLY BIND SUCH ENTITY TO THIS AGREEMENT AND SUCH ENTITY IS DEEMED TO BE THE Licensee HEREUNDER.
1.1. Definitions. In addition to the terms elsewhere defined in this Agreement, the following terms used herein shall have the following meanings:
- “Affiliate” means, with respect to a Contractual Party, any entity which controls, is controlled by, or is under common control with such Contractual Party, where “control” means the legal, beneficial or equitable ownership of at least a majority of the aggregate of all voting equity interests in such entity, but only for so long as such control exists.
- “Agreement” means this User License Agreement pursuant to which the Licensor licenses the Licensee to use the applicable Software, which is a part of the installation package of the Software in the electronic form (pop-up license) and which is displayed to the Licensee during the installation of the Software.
- “Authorized User” means a unique person who is given access to the Software by the Licensee. The Software may be installed only on one server unless otherwise agreed. The Licensee must obtain entitlements for each Authorized User given access to the Software. An entitlement for an Authorized User is unique to that Authorized User and may not be shared, nor may it be reassigned other than for the permanent transfer of the Authorized User entitlement to another person.
- “Company” means a partner which was appointed by the Licensor as a non-exclusive member of the Licensor´s Partner Program and has the non-exclusive, non-transferable, non-assignable right to promote, market, solicit orders for, and resell the respective Software; if the Software is sold directly by the Licensor, the Licensor will be deemed to be the Company.
- “Confidential Information” means non-public information that is disclosed by or on behalf of a Contractual Party under or in relation to the Agreement that is identified as confidential at the time of disclosure or should be reasonably understood to be confidential or proprietary due to the nature of the information and/or the circumstances surrounding its disclosure. Confidential Information does not include information which, and solely to the extent it: (i) is generally available to the public other than as a result of a disclosure by the receiving Contractual Party or any of its representatives; (ii) was known to the receiving Contractual Party prior to the date hereof on a non-confidential basis from a source other than disclosing Contractual Party or its representatives; (iii) is independently developed by the receiving Contractual Party without the benefit of any of the disclosing Contractual Party´s Confidential Information; or (iv) was disclosed by the disclosing Contractual Party to a third party without an obligation of confidence. In any dispute concerning the applicability of these exclusions, the burden of proof will be on the receiving Contractual Party and such proof will be by clear and convincing evidence. Any technical, financial and commercial information, in whatever form, including the contents of the Agreement and any future release dates or future functionality of the Software will be deemed the Licensor’s Confidential Information.
- “Contractual Party“ means the Licensor and Licensee, individually and collectively, as the case may be.
- “Delivery Date” means a date stated in the Order Form as the moment (day) at which the functional installation files (or functional links to download them) and the license keys to the Software in the ordered number are made available to the Licensee.
- “Documentation” means the then-current documentation relating to contractual relationships, either in electronic or printed format. The Documentation may be provided by and modified from time to time in the sole discretion of, the Licensor and its Affiliates.
- “Fee” means a price for the Software calculated in accordance with the Order Form.
- “IP Claim” means a claim by a third party against the Licensee or its Affiliates that the Software, as delivered by the Licensor, infringes a third-party copyright or trademark, infringes a patent or design, or misappropriates a third-party trade secret.
- “IP Rights” means all rights, title and interest in and to any and all forms of intellectual property rights including, without limitation, all patents, copyrights, work rights, design rights, trademarks, trade names, domain name rights, trade secret rights, sui generis rights, moral rights, neighboring and other related rights, rights in know-how, confidential information, and all other rights associated with the authorship and/or the creation of artistic, intellectual or industrial property; and all forms of protection of a similar nature anywhere in the world and of every kind and nature however designated; whether arising by operation of law, treaty, contract, agreement, or license; whether tangible or intangible; whether or not registered, deposited or published; and including without limitation, (i) all registrations, issuances, reissuances, amendments, extensions, continuations, divisions, , and/or other counterparts thereof, whether in whole or in part, as well as all applications and the right to submit applications for any of the foregoing, and (ii) all legal rights arising from the use of the foregoing, such as (by way of example and not limitation) the right to license or otherwise authorize the transfer to and/or use of the forgoing by any other party and/or to assert a claim, cause of action, or other right arising out of or relating to any actual or threatened infringement by any person relating to the foregoing and recover damages, costs and attorney’s fees for past, present and future infringement, misappropriation or any other violation of any of the foregoing.
- “License” means a license to the Software granted according to the Clause 3.1. hereof.
- “Licensee“ means a licensee buying the Software.
- “Licensor Marks” means the worldwide trademarks, service marks, trade names, logos, designs, or slogans of the Licensor and its Affiliates identifying the Software, whether or not specifically recognized, registered or perfected.
- “Licensor” means a holder of copyrights to the relevant Software – the company Inphinity Limited, with registered seat at 18 SOHO Square, London, W1D 3QL United Kingdom, ID No. 12513383.
- “Order Form” means a written document, pursuant to which the Licensor ordered the Software.
- “Materials” means any proprietary materials distributed or made available, directly or indirectly, by the Licensor to the Licensee, and all whole or partial copies thereof, including by way of example but not limited to all: (i) Software and Documentation; (ii) machine readable instructions and code; (iii) technology, files, libraries, modules, menus, algorithms, tools, processes, procedures, calls, routines, meta data, macros, blueprints, templates, scripts, commands, syntax and other components of the Software; (iv) the user interface of the Software and all audio-visual content (such as displays, images, shading, colors, organization, associations, structure, positioning, text, look and feel, recordings, or pictures) associated therewith; and (v) any other Licensor materials (e.g. license keys, packaging, materials relating to training, education, consulting services and deliverables, maintenance and support services and deliverables, professional services).
- “Software” means a proprietary software developed by the Licensor which the Licensee is downloading or installing before conclusion of the Agreement according to the Clause 2.1. hereof, excluding all third party’s software incorporated therein as well as updates thereto.
- “Warranty” means warranty as stated in Clause 6.1. hereof.
- Conclusion of Agreement
2.1. The Agreement is concluded by clicking the acceptance box by the Licensee below this wording of the Agreement which is displayed to the Licensee during the installation of the Software in the electronic form (pop-up license).
- License for Software
3.1. License. Subject to the terms and any applicable restrictions in the Agreement, the Licensor hereby grants the Licensee a world-wide, nonexclusive, non-transferable, non-assignable, non-sublicensable and limited right for the Licensee and Licensee’s Authorized Users to use the Software solely for the Licensee´s internal business operations and in accordance with the Order Form and Documentation. The Licensee is directly responsible for any use of the Software by Authorized Users not in accordance with this Agreement.
3.2. External Use. The Software for which external use is permitted in the Documentation or Order Form, may be accessed and used by third parties authorized by Licensee or its Affiliates (“Authorized Third Parties”) provided that (i) Authorized Third Parties may only use the Software with information or data created or maintained by Licensee or its Affiliates incidental to their business relationship with each such Authorized Third Party; and (ii) such use is in accordance with the Documentation and Order Form. Licensee is directly responsible for any use of the Software by Authorized Third Parties not in accordance with this Agreement.
3.3. Restrictions. The Licensee will not (nor will it permit any Authorized User, Authorized Third Party or other third party to): (a) copy or manufacture the Software or any portion thereof or bypass or delete any copy protections thereon that are intended to prevent unauthorized copying or use of the Software; (b) port, modify, adapt, enhance, extend, decompile, disassemble, reverse engineer or otherwise attempt to extract or derive the source code or any methods, algorithms or procedures from the Software by any means whatsoever; (c) modify, adapt, alter, translate or create any derivative works based upon the Software or the Documentation, except as otherwise expressly permitted by applicable law; (d) incorporate or bundle the Software into or with any hardware or software other than the approved by the Licensor; or (e) transfer or reassign a License in such a manner that enables multiple users to share such License in excess of the authorized quantity of Licenses or alter or circumvent any product, key or license restrictions or limitations on the Software to exceed purchased quantities or to defeat any restrictions on access or use; or (f) use the Software not solely for the internal business operations or not in accordance with the Order Form and Documentation; or (g) use, offer or otherwise exploit the Software, whether or not for a fee, by acting in any way as an independent software vendor, application service provider, managed service provider (MSP), SaaS provider, service bureau system integrator, data provider, marketing service provider, or similar business model; such usage is only permitted through a separate OEM, MSP, or other written agreement with the Licensor; or (h) use the Software in any manner that competes with the Licensor, including but not limited to, benchmarking, collecting and publishing data or analysis relating to the performance of the Software, or developing or marketing a product that is competitive with any Software or service connected herewith; or (i) avoid to use the latest update of the Software; or (j) directly or indirectly challenge, contest or oppose Licensor’s title to IP Rights, oppose any registration thereof; or (k) use, register, nor attempt to register, any trade name, trademark, service mark, design or domain name which, in whole or in part, incorporates or is confusingly similar to any Licensor Marks; or (l) remove Licensor´s Mark or other proprietary notice from the Software.
3.4. Subscription. The Software is licensed on a subscription basis. The right to access and use the Software is valid for the subscription period and in the quantities identified in the Order Form. The initial subscription period for the Software commences upon the Delivery Date.
3.5. Primary Support. Primary Support will be made available in accordance with the Order Form.
3.6. Evaluation License. Evaluation licenses are free and time-limited licenses to the Software that may be provided to the Licensee for evaluation and trial purposes. Use of the Software for evaluation and trial purpose is only permitted in a non-production environment and for the period limited by the corresponding license key or the time period stated by the Licensor or Company. Evaluation licenses are provided “AS-IS” without indemnification, maintenance and support, or warranty of any kind, expressed or implied.
3.7. Global Enterprise License. If agreed in the Order Form, the License is granted as a global enterprise license, i.e. the right to use the Software is granted to all Affiliates of the Licensee by the worldwide License. The restrictions regarding the number of Authorized Users and servers the Software may be installed on are not hereby affected.
3.8. Fees. The Licensee shall pay Fees due in accordance with the payment terms set forth in the Order Form. The Company is entitled to invoice and accept payments of the Fees.
- Intellectual Property Rights
4.1. Retention of IP Rights. All IP Rights relating to the Software and the Materials, including all methodologies, designs, improvements to the Software and know how, will at all times be the exclusive property of the Licensor, and nothing contained in the Agreement will constitute or be construed as a transfer of ownership of any of the IP Rights of the Licensor. If the Licensor and/ or its Affiliates or their officer and/or employee during the performance of the Agreement creates any inventions, Software, product or result (e.g. software, data analyses with anonymous data, business intelligence solutions), the Licensor shall have any and all property rights to such an intellectual property and is entitled to use it without any restriction and limitation.
4.2. Third Party Materials. The Software may include certain open source or other third-party software, data, or other materials (hereinafter referred to as the “Third Party Materials”) that are separately licensed by their respective owners. The applicable license terms and information relating to such Third-Party Materials, including any availability of source code, may be found within the Documentation. LICENSOR MAKES NO REPRESENTATION, WARRANTY, OR OTHER COMMITMENT REGARDING THE THIRD-PARTY MATERIALS. LICENSOR HEREBY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO LICENSEE’S USE OF ANY THIRD-PARTY MATERIALS AS APPLICABLE IN ACCORDANCE WITH LAW.
4.3. Notification. The Licensee will as soon as possible notify the Licensor of any actual, threatened or suspected infringement of the Licensor’s IP Rights, as well as any claims or allegations that the Software infringe the rights of any third party.
4.4. Licensee´s Solutions, Access and Security. The Licensee represents and warrants that it has the full applicable legal rights to use their solutions, including but not limited to the right to integrate the Licensee´s solutions into the Software. The Licensee shall maintain reasonable technical and procedural access controls and system security to safeguard the Software and shall be directly responsible for any violations of the IP Rights by anyone that it or any of its Affiliates has allowed to access the Software.
4.5. Material Breach. The Licensee’s noncompliance with the rules set forth in this Clause 4 hereof, shall be a material breach of the Agreement.
- Infringement of Third-Party IP Rights
5.1. Exclusions. The Licensor will have no liability for any Third-Party IP Claim that arises out of failure of the Licensee to follow the restrictions of usage rights stated in Clause 3.3. hereof.
5.2. Remedies. If Software becomes, or, in Licensor’s opinion, is likely to become, the subject of an IP Claim, the Licensor may, at its option and expense, either: (i) obtain the right for Licensee to continue using the Software in accordance with this Agreement; (ii) replace or modify the Software so that it becomes non-infringing while retaining substantially similar functionality; or (iii) if neither of the foregoing remedies can be reasonably effected by the Licensor, terminate the License(s) for the affected Software (without need for a ruling by a court or arbitrator) and refund as applicable a pro rata portion of prepaid subscription Fes, or License Fees amortized over three (3) years on a straight-line basis, provided that such Software is returned to the Licensor promptly after the effective date of any such termination.
5.3. Procedures. All indemnification obligations as set out in this Clause 5 are subject to the following requirements: (a) the Licensee will provide prompt written notice of any such action or claim; (b) the Licensee will permit the Licensor to assume and control the defense and settlement of any such action or claim; (c) the Licensee will not prejudice the defense of the action or claim; (d) the Licensee will mitigate such damages, costs and expenses, as far as reasonably possible; and (e) the Licensee will provide the Licensor with such assistance, documents, authority and information as it may reasonably require in relation to the action or claim and defense or settlement thereof.
5.4 THIS CLAUSE 5 STATES THE LICENSOR’S ENTIRE LIABILITY, AND THE LICENSEE’S SOLE REMEDIES, FOR CLAIMS FOR INFRINGEMENT OF THIRD-PARTY IP RIGHTS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS SECTION 5 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Warranty and Disclaimers
6.1. Warranty. The Licensor warrants that the Software under the Agreement will, for a period of thirty (30) days from its Delivery Date (“Warranty Period”), operate substantially in conformity with its applicable Documentation and the Agreement.
6.2. Procedure. The Licensee must assert any claim for breach of this Warranty within the Warranty Period and with the Company. If the Licensee asserts the claim directly with the Licensor, the Company (instead of the Licensor) shall be entitled to remedy the Licensee. Licensee’s exclusive remedy with regard to any breach of this Warranty will be, at Licensor’s (Company´s) option and expense, to either: (i) repair or replace the non-conforming Software; (ii) if the Software was obtained by purchase (and not as a result of a conversion from a previously purchased Software), refund to the Licensee the Fees paid by the Licensee for the non-conforming Software and the Licensee is obliged to stop using the non-conforming Software; or (iii) if the Software was obtained as a result of conversion from a previously purchased Software, require the Software to be uninstalled by Licensee and reversion to the prior Software.
6.3 Software Warranty Restrictions. There will be no liability for any Warranty claim, or any obligation to correct any defect or problem with the Software, to the extent that it arises out of Licensee´s failure to follow the restrictions of usage rights stated in Clause 3.3 hereof.
6.4. EXCEPT AS EXPRESSLY SET FORTH IN THIS CLAUSE, THE LICENSOR MAKES NO WARRANTIES WITH RESPECT TO THE SOFTWARE OR ANY OTHER SUBJECT MATTER OF THE AGREEMENT AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THE LICENSOR HAS BEEN INFORMED OF SUCH PURPOSE). IF A WAIVER, RIGHT, OR REMEDY IS EXERCISED PURSUANT TO MANDATORY LAW, IT SHALL BE EXERCISED SOLELY FOR THE PURPOSE PROVIDED AND IN CONFORMANCE WITH THE PROCEDURES AND LIMITATIONS EXPRESSLY PROVIDED FOR BY SUCH LAW. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL BE ENTIRELY FREE FROM DEFECTS OR OPERATE UNINTERRUPTED OR ERROR FREE.
- Limitations of Liability
7.1 IN NO EVENT WILL THE LICENSOR, ITS AFFILIATES, OR RESPECTIVE SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOSS OF SAVINGS, PROFITS OR REVENUES, LOSS OR CORRUPTION OF DATA, GOODWILL, OR REPUTATION, INACCURACY OF ANY DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR SOFTWARE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWSOEVER ARISING AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
7.2. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS OF THE LICENSOR ARE INDEPENDENT OF ANY AGREED REMEDY AND WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY AGREED REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE EXTENT THAT THE LICENSOR MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE OR DURATION OF SUCH WARRANTY AND THE EXTENT OF THE LICENSOR’S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. IF A WAIVER, RIGHT, OR REMEDY IS EXERCISED PURSUANT TO MANDATORY LAW, IT SHALL BE EXERCISED SOLELY FOR THE PURPOSE PROVIDED AND IN CONFORMANCE WITH THE PROCEDURES AND LIMITATIONS EXPRESSLY PROVIDED FOR BY SUCH LAW.
7.3. With the exception of a breach of Section 4 (Intellectual Property Rights) herein, each Contractual Party’s maximum cumulative liability for damages under the Agreement, regardless of the form of action, whether in contract, tort (including but not limited to negligence or strict liability) or otherwise shall in no event exceed the aggregate amount of the Fees paid and payable by the Licensee for the Software which is the subject of the claim for the prior twelve (12) months of the Agreement.
- Indemnification by Licensee
8.1. Indemnification by Licensee. The Licensee shall indemnify, defend and hold the Licensor harmless from any and all damages and reasonable and verifiable costs and expenses (including without limitation reasonable attorneys’ fees) that may be incurred by the Licensor in connection with or arising out of any breach by the Licensee, any Licensee´s Affiliate or any sub-partner of any representations, warranties or covenants under the Agreement, particularly the restrictions of usage rights stated in Clause 3.3. hereof.
8.2. Material Breach. The Licensee’s noncompliance with the rules set forth in this Clause 8 hereof, shall be a material breach of the Agreement.
- Special Provisions
9.1. Non-Exclusivity. All rights granted to the Licensee under the Agreement are non-exclusive. The Licensor reserves the right to market, promote, distribute, sell, and grant licenses for the Software and provide the Software to third persons without any limitations, and nothing in the Agreement will be construed as limiting in any manner Licensor´s right to appoint other distributors, resellers, OEM partners, licensees or agents, or from directly or indirectly marketing, reproducing, distributing, licensing in connection with the Software worldwide. All rights not expressly granted by the Licensor to the Licensee are reserved to Licensor.
9.2. Feedback. The Licensee is not obligated to provide the Licensor with any suggestions or feedback about the Software, but if the Licensee elects to do so, the Licensor may use and modify this feedback for any purpose, including developing and improving the Software, without any liability, restriction, or payment to the Licensee.
9.3. Referrals and case studies. The Licensee hereby grants the Licensor the right to list the Licensee as a customer or partner of the Licensor and its Affiliates in marketing materials such as the Licensor´s and its Affiliate´s web site, customer-facing presentations and press releases. The Licensee undertakes to provide the Licensor and its Affiliates with authorization to use case studies for the purpose of marketing and promoting the Software and the Licensor and its Affiliate; “user case study” means a description of the deployment of the Software by the Licensee, including the Licensee name, the Licensee´s representative testimonial and contact information, key performance indicators, challenges, solutions etc.
10.1. Confidentiality. Each Contractual Party will hold in confidence the other Contractual Party’s Confidential Information and will not disclose or use such Confidential Information except as necessary to exercise its express rights or perform its express obligations hereunder.
10.2. Disclosure. Any Contractual Party’s disclosure of the other Contractual Party’s Confidential Information may be made only to those of its employees or consultants who need to know such information in connection herewith and who have agreed to maintain the Confidential Information as confidential as set forth herein. The receiving Contractual Party shall not circulate Confidential Information within its own organization or that of its Affiliates or sub-partners except to those employees or consultants who need to know such information in connection with the business relationship between the Contractual Party. Notwithstanding the foregoing, the Contractual Party may disclose the other Contractual Party’s Confidential Information to the extent that it is required to be disclosed in accordance with an order or requirement of a court, administrative agency or other governmental body, provided that such Contractual Party, to the extent permitted by law, provides the other Contractual Party with prompt notice of such order or requirement in order that it may seek a protective order.
10.3. Duration. Each Contractual Party’s confidentiality obligations hereunder will continue for a period of five (5) years following any termination of the Agreement, provided, however, that each Contractual Party’s obligations will survive and continue in effect thereafter with respect to, and for so long as, any Confidential Information continues to be a trade secret under applicable law or personal data under GDPR.
10.4. Retention. All Confidential Information supplied by the disclosing Contractual Party to the receiving Contractual Party pursuant to the provisions of the Agreement, together with all copies thereof, will remain the property of the disclosing Contractual Party.
10.5. Material Breach. The Licensee’s noncompliance with the rules set forth in this Clause 10 hereof, shall be a material breach of the Agreement.
- Term and Termination
11.1. Term. The Agreement shall become effective as of the date of conclusion of the Agreement in accordance with Section 2 hereof and shall remain in effect until terminated (i) by notice whereas the contractual relationship will cease to exist after expiration of then-current subscribed periods of the Software, or (ii) pursuant to a material breach if the Contractual Party fails to cure a material breach within thirty (30) days (ten (10) days in case of non-payment of the Fee) after written notice of such breach, or (iii) by agreement of the Contractual Parties or (iv) by termination of the Order Form.
11.2. Subscription. Subscriptions shall automatically renew for subsequent additional periods equal to the initial subscription period, unless either the Licensor or Licensee provides prior written notice of non-renewal at least forty-five (45) days prior to the end of the then-current subscription period. Subscriptions may not be cancelled in whole or in part during any subscription period. Upon renewal, subscription Fees are subject to increase based on prevailing rates at the time of renewal. If the subscription is not renewed, the Licensee’s right to access and use the respective subscribed Software shall cease at the end of the then-current subscription period, unless earlier terminated.
11.3. Effect of Termination. Upon termination of the Agreement, the Licensee shall: (i) immediately cease using the applicable Software, including the Documentation; and (ii) certify to the Licensor within thirty (30) days after expiration or termination that Licensee has destroyed or has returned to Licensor all copies of the applicable Software, any associated license keys, the Documentation and all other Licensor Confidential Information in its possession. Termination of this Agreement or any licenses shall not prevent either Party from pursuing all available legal remedies, nor shall such termination relieve Licensee’s obligation to pay all fees that are owed as of the effective date of termination. All provisions of this Agreement relating to Licensor’s ownership to the Software, limitations of liability, disclaimers of warranties, confidentiality (for the time periods specified in this Agreement), waiver and governing law and jurisdiction, will survive the termination of this Agreement.
- General Provisions
12.1. Assignment. The Licensee will not assign or transfer the Agreement or its rights and obligations hereunder to any third party without the prior written consent of the Licensor. The Licensor is free to assign or transfer any or all of its rights or obligations under the Agreement at its discretion.
12.2. Statistical Data Collection and Use. The Licensor may collect and use certain statistical data to enable, optimize, support, and improve performance of the Software. “Statistical Data” means nonpersonal statistical, demographic, or usage data or metadata generated in connection with any use of the Software. Statistical Data does not include any personally identifiable information or any personal data and is owned by the Licensor.
12.3. Compliance with Laws. Licensee agrees at all times to comply with all applicable laws and regulations in its performance of this Agreement, which may include, without limitation, U.S. and E.U. export control laws and regulations, and regulations declared by the U.S. Department of the Treasury Office of Foreign Assets Control, the Council of the E.U. and their counterparts under applicable law (“Export Control Laws”). Licensee will indemnify, defend and hold harmless the Licensor and its respective officers, agents and employees from and against any and all losses, costs, claims, penalties, fines, suits, judgments and other liabilities (including applicable attorney’s fees) arising out of, relating to or resulting from Licensee’s failure to comply with any Export Control Laws.
12.4. Governing Law. The Agreement and the relations arising from it shall be governed by the law of the United Kingdom. If Customer is established in the jurisdiction of Slovak Republic, Czech Republic, Hungary, Poland, Croatia, Slovenia, Serbia, Bosnia and Herzegovina, Montenegro, Albania, North Macedonia, Greece, Bulgaria, Romania, Moldova, Ukraine, Belarus, Lithuania, Latvija, Estonia, Russia, the governing law shall be the law of the Slovak Republic. The application of any collision norm that would determine law other than the governing law as stated herein is hereby expressly excluded (including the United Nations Convention on Contracts for the International Sale of Goods).
12.5. Dispute Resolution. Any and all disputes in connection with the Agreement, shall be referred to the relevant court of the United Kingdom. If Customer is established in the jurisdiction of: Slovak Republic, Czech Republic, Hungary, Poland, Croatia, Slovenia, Serbia, Bosnia and Herzegovina, Montenegro, Albania, North Macedonia, Greece, Bulgaria, Romania, Moldova, Ukraine, Belarus, Lithuania, Latvija, Estonia, Russia, any and all disputes in connection with the Agreement, shall be referred to the relevant court of the Slovak Republic.
12.6. Force Majeure. Neither Contractual Party shall be liable to the other for any delay or failure to perform any obligation under the Agreement (except for a failure to pay Fees) if the delay or failure is due to unforeseen events, which occur after the effective date of the Agreement and which are beyond the reasonable control of the Contractual Parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected Contractual Party from fulfilling its obligations and such Contractual Party is not able to prevent or remove the force majeure at reasonable cost.
12.7. Notices. All notices and other communications given or made pursuant to the Agreement concerning a breach, violation or termination hereof will be in writing and will be delivered: (a) by certified or registered mail; or (b) by an internationally recognized express courier. Delivery of any and all writings under the Agreement shall be deemed effective in case of personal delivery to the hands of the addressee at the time of delivery and in case of delivery by registered mail on the business day in which the delivering consignment will return as non-delivered.
12.8. Relationship between the Contractual Parties. The Contractual Parties are independent contractual parties. Nothing in the Agreement will be construed to create an agency, joint venture, partnership, fiduciary relationship, joint venture or similar relationship between the Contractual Parties.
12.9. Waiver. No term of the Agreement will be deemed waived and no breach excused unless such waiver or excuse shall be in writing and signed by the Contractual Party issuing the same. Neither this Agreement nor any Order Form shall be dependent on Licensee issuing a purchase order. Licensee acknowledges that any purchase order is for its administrative convenience only and that Licensor has the right to issue an invoice and collect payment without a corresponding purchase order. Any additional or conflicting terms or conditions in any purchase order or other ordering documentation shall have no legal force or effect.
12.10. Limitation. Subject to limitation permitted by the applicable law, no action, regardless of form, arising out of the Agreement may be brought by the Licensee more than one (1) year after the cause of action arose.
12.11. U.S. Government End Users. The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and Documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement.
12.12. Entire Agreement/Contract; Severability. The Agreement is the complete statement of the mutual understanding of the Contractual Parties and supersedes and cancels all previous written and oral agreements and communications pertaining to the subject matter of the Agreement. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, that provision will be limited to the minimum extent necessary so that the Agreement will otherwise remain in force and effect.
12.13. GDPR. The Licensor hereby confirms, that the Licensor processes the personal data of data subjects in accordance with General Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of personal data (hereinafter referred to as “GDPR”). More information on the processing of personal data by the Licensor are available at: https://inphinity.xyz/privacy-policy/.