1. Definitions
“Development Use” means use of the Software by Client to
design, develop and/or test new applications for Production
Use.
“Documentation” means the operating instructions and
user manuals provided with the Software and/or available on
Supplier’s website.
“Foreign Elements” means viruses, worms, Trojan Horses,
time bombs or other alike foreign elements.
“Client’s Customer” Client will, when agreed in the Order,
identify and provide the Client’s Customers for the Software,
provided the total number of agreed Client’s Customers is
never exceeded.
“Host” means any physical or virtual OS instance on which
Client can run multiple processes (e.g. applications,
databases, services and containers). Containers (e.g.
Docker) are not counted as Hosts.
“Component” means a representation of a physical or
logical element in Client’s IT landscape on which Client can
plot metrics and checks. A component is represented as a
box in the StackState topology.
“Term” means, unless otherwise specified in the related
Order, a term of 1 year after Effective Date.
“License” means the License defined in clause 2.1 hereafter.
“Order” means the document by which Software and
Support are ordered by Client. The Order and any
subsequent orders by Client shall be governed by the terms
and conditions of these License T&Cs.
“Production Use” means use of the Software by Client for
its own internal business purposes only.
“Software” means the object code versions of the software
as described on an Order and in the related Documentation.
“Subscription” means the License and Support together.
“Subsidiary” means any corporate entity in which Client
owns or controls, directly or indirectly, the majority of the
issued share capital of that corporate entity and over which
it exercises effective control.
“Support” means the technical support for the Software
pursuant to the Support T&Cs attached to the Order as Annex
2.
“Territory” means the territory agreed to by the parties as
set forth on the Order.
“User” means the specific individual(s) as indicated by Client
who are therewith authorized to use the Software on behalf
of Client within the scope of this License. The number of the
initial Users are indicated on the Order.
The terms ‘Client’, ‘Supplier’, ‘Effective Date’, ‘Agreement’,
‘License T&Cs’ and ‘Support T&Cs’ shall have the meanings
ascribed to them in the Order.
2. License
2.1 Supplier grants Client a non-exclusive and non-transferable
(except as permitted herein) license for the term of this
Agreement to use the Software and the Documentation
within the Territory, solely for Client’s Production Use and/or
Development Use, subject to the License T&Cs (the
“License”). The License is limited to the total number of
Client’s (Customers) Hosts and/or Components indicated on
the Order, unless otherwise agreed between the parties. For
the avoidance of doubt, Production Use and/or Development
Use do not include the right to reproduce the Software for
sublicensing, resale, or distribution to any other third party.
2.2 Client may only allow its third-party consultants to access
and use the Software for Client’s Production Use or other
operations provided they have signed an agreement with
Client protecting Supplier’s intellectual property with terms
no less stringent than these terms and conditions and that
Client ensures that such consultant’s use of the Software
complies with the terms of these License T&Cs.
2.3 Client’s Subsidiaries may only use the Software and the
Documentation in the Territory for Production Use and/or
Development Use after prior written approval from Supplier
which approval of Supplier will not be unreasonably withheld.
2.4 The following limitations apply:
(i) Client agrees not to lease, rent or sublicense the
Software to any third party, or otherwise use it except as
permitted in this Agreement;
(ii) Client agrees not to reverse engineer, decompile,
disassemble, or otherwise attempt to determine source
code or protocols from the Software;
(iii) Client may not copy the Software, except after prior
written approval from Supplier and if so, limited to
archival or disaster recovery purposes. If Client does
copy for these purposes, Client will preserve any
proprietary rights notices on the Software and place such
notices on any and all copies Client has made or makes;
(iv) Client shall not create or attempt to create any derivative
works from the Software except and only to the extent
permitted by law.
2.5 Supplier retains all rights not expressly granted to Client in
these License T&Cs.
2.6 This License is granted under the condition that the
Subscription fee(s) is/are paid to Supplier.
3. Fees and audit
3.1 All amounts mentioned in this Agreement are exclusive
applicable sales, use, VAT and other consumption taxes and
other taxes.
3.2 The total non-refundable, non-cancellable Subscription fees
for each Order will be due and payable within 30 days from
the date of receiving Supplier’s invoice. Supplier may assess
interest charges of 1,5% per month for late payments.
3.3 Subscription fees shall be paid by Client for at least the entire
Term and invoiced by Supplier annually in advance.
3.4 Upon expiration of the Term, Supplier may apply an
indexation increase to its Subscription fee(s) or prices and
may be indexed by Supplier during the term of this
agreement in accordance with the derived CBS service price
index of the previous year with a maximum of 3% per each
subsequent renewal term.
3.5 After all conditions and agreements have been met regarding
the purchase of any License or an Additional License
Purchase, Supplier shall issue the invoice for payment. The
invoice shall include the fees attached to the License under
purchase inclusive of the relevant tax charges. For other
charges or fees, an invoice shall be issued monthly or any
agreed period inclusive of the relevant tax charges. Client is
then prompted to pay the relevant amount due as stated in
the invoice. Payment of such fees shall be made within 30
calendar days. The fees payable are free from any
withholding tax or deductions. If, however, the Client is
required by applicable law to deduct or withhold the
applicable tax but the deduction or withholding is not
removed, Supplier shall have the right to increase the
amount due in the invoice in order to arrive at a net sum
originally owed by Customer under that invoice.
3.6 Supplier may, at any time during the term of this Agreement
and with 30 days prior written notice, request to and audit to
determine and verify that Client is in compliance with these
terms and conditions. Client will promptly cooperate with
Supplier in such audit. The audit will be restricted in scope,
manner and duration to that reasonably necessary to achieve
its purpose and not disrupt Client’s operations. Client shall
be liable for promptly remedying any underpayments
revealed during the audit. If the audit reveals an
underpayment in excess of 5%, Client will also be liable for
the costs of the audit.
4. Delivery
4.1 The Subscription is ordered monthly in advance of Supplier’s
provision of the Subscription.
4.2 Except as otherwise provided herein, Subscription fees paid
are non-refundable.
4.3 Supplier shall deliver the Software electronically unless
otherwise agreed between the parties.
4.4 Installation of the Software shall be performed by Client,
unless parties agree on an Order that installation of the
Software will be performed by Supplier. If installation of the
Software is performed by Supplier, Supplier will charge Client
on the basis of time and material against the then current
rates of Supplier with a minimum of 4 hours per installation
performed by Supplier.
5. Warranty
5.1 Supplier warrants that it is entitled to license the Software to
Client.
5.2 Supplier warrants that the Software does not contain Foreign
Elements at delivery of the Software to the Client.
5.3 For a period of 90 days after first delivery of the Software
following the initial date of the Agreement, Supplier warrants
that the Software shall conform in all material respects to the
Documentation. Supplier does not warrant that operation of
the Software will be uninterrupted or “bug” free.
5.4 If Supplier breaches the foregoing warranty and Client
promptly notifies Supplier in writing of the nature of the
breach, Supplier shall make commercially reasonable efforts
to promptly repair or replace the non-conforming Software
without charge. If, after a reasonable opportunity to cure,
Supplier does not repair or replace the non-conforming
Software, Client must return the Software and
Documentation to Supplier, or certify in writing that all copies
have been destroyed, and Supplier will refund the
Subscription fee it received from Client for the Software. This
is Client’s sole and exclusive remedy for breach of the
warranty in clause 5.3.
5.5 THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE, AND MERCHANTABILITY.
6. Intellectual Property
6.1 Title, ownership rights and all intellectual property rights in
and to the Software shall remain the sole and exclusive
property of Supplier and its licensors.
6.2 If a third party claims that Client’s use of the Software
infringes any patent subsisting in the Territory, copyright,
trademark or trade secret, Client must promptly notify
Supplier in writing. Supplier will defend Client against such
claim if Client reasonably cooperates with Supplier and allows
Supplier to control the defense and all related settlement
negotiations, and then Supplier will indemnify Client from
and against any damages finally awarded for such
infringement.
6.3 If an injunction is sought or obtained against Client’s use of
the Software as a result of a third party infringement claim,
Supplier may, at its sole option and expense, (i) procure for
Client the right to continue using the affected Software, (ii)
replace or modify the affected Software with functionally
equivalent software so that it does not infringe, or, if either
(i) or (ii) is not commercially feasible, (iii) terminate the
Subscription and refund the Subscription fee received from
Client for the affected Software less a usage charge based on
a 12 month amortization schedule.
6.4 Supplier shall have no liability for any third party claim of
infringement based upon (i) use of other than the then
current, unaltered version of the applicable Software, unless
the infringing portion is also in the then current, unaltered
release; (ii) use, operation or combination of the applicable
Software with non-Supplier programs, data, equipment or
documentation if such infringement would have been avoided
but for such use, operation or combination; or (iii) any third
party software that was not included by Supplier on its own
behalf into the Software. The foregoing constitutes the entire
liability of Supplier, and Client’s sole and exclusive remedy
with respect to any third party claims of infringement of such
intellectual property rights.
7. Limitation of Liability
7.1 Except for parties’ intentional or gross negligence, parties’
aggregate liability to the other party for damages concerning
performance or non-performance by either party or in any
way related to this Agreement, and regardless of whether the
claim for such damages is based in contract, tort, strict
liability, or otherwise, shall not exceed the Subscription fee
received by Supplier from Client for the affected Software for
the 12 month period preceding the occurrence of such
liability.
7.2 In no event shall either party be liable for any indirect,
incidental, special, punitive or consequential damages, lost
data or lost profits, even if a party has been advised as to
the possibility of such damages.
7.3 Parties are adequately insured and shall continue to be
adequately insured during the term of this Agreement.
8. Term and Termination
8.1 The Subscription ends after its Initial Term. An automatic
renewal does not apply, unless parties agree otherwise.
8.2 At the expiration of the Initial Term and each agreed
consecutive term, Client may continue to receive a
Subscription in 1 year increments under these unchanged
terms and conditions. Supplier shall provide Client
reasonable notice of the possibility to renew its Subscription
against the Subscription fees agreed in this Agreement
taking into consideration a possible indexation increase as
stipulated in 3.4 of this Agreement. If Client elects not to
renew its Subscription, Client shall notify Supplier of its intent
not to renew.
8.3 Either party will be in default if it declares bankruptcy or
otherwise fails to perform any of its duties or obligations and
does not undertake an effort to substantially cure such
default within 30 days after written notice is given to the
defaulting party, except that any breach of clause 10.1
(Confidentiality) shall be grounds for immediate termination.
In the event of default, the non-defaulting party may
terminate this Agreement by providing written notice of
termination to the defaulting party.
8.4 If this Agreement is terminated, for any reason whatsoever,
Client must promptly, at Supplier’s direction, destroy or
return all affected Software and Documentation.
8.5 Termination of this Agreement explicitly does not release
parties from those obligations which, by their nature, are
intended to remain in effect, including the provisions with
respect to confidentiality, engaging of third parties and
liability for taxes and premiums, intellectual property,
liability, and applicable law and dispute resolution.
9. Support
9.1 Support is provided pursuant to the Support T&Cs.
9.2 Supplier will provide Support during the term of this
Agreement under the condition that the applicable
Subscription fee(s) is/are paid to Supplier.
9.3 Support can only be purchased and renewed as part of the
Subscription.
10. Miscellaneous
10.1 Confidentiality. Each of the parties warrants that all of the
information received by the other party which is known to
be or should be known to be confidential in nature, shall
remain secret and be kept confidential, unless a legal
obligation mandates disclosure of that information. The
party receiving confidential information shall only use it for
the purpose for which it has been provided. Information shall in any event be considered confidential if it is
designated by either of the parties as such. Client
acknowledges that the Software contains valuable trade
secrets and confidential information of Supplier.
10.2 Force Majeure. Neither party shall be liable for any delay
or failure in performance due to Force Majeure. “Force
Majeure” means any event beyond a party’s reasonable
control such as, but not limited to, strikes or other labour
trouble, fire or other natural casualty, and governmental
pre-emption of priorities or other controls in connection
with a national or other public emergency.
10.3 Assignment. Client may not assign this Agreement without
Supplier’s prior written consent.
10.4 Severability. If any part of this Agreement is held to be
unenforceable, in whole or in part, such holding will not
affect the validity of the other parts of the Agreement.
10.5 Waiver. The waiver of a breach of any provision of this
Agreement will not operate or be interpreted as a waiver
of any other or subsequent breach.
10.6 Notices. All notices permitted or required under this
Agreement shall be in writing and shall be delivered by
registered mail to the address of the party specified above
or such other address as either party may specify in
writing. Such notice shall be deemed to have been given
upon receipt.
10.7 Governing Law. This Agreement will be governed by the
laws of The Netherlands, excluding its conflict of law rules
and the UN Convention for the International Sale of Goods
(CISG). Any dispute regarding this Agreement, or disputes
arising from this Agreement, shall be subject to the
exclusive jurisdiction of the court located within The
Netherlands.