Perpetual / Subscription Licenses
THIS AGREEMENT (the “Agreement”) is made on the Effective Date
VIRTDB LTD, a company incorporated and registered in Hungary whose registered office is Váci út 99, 1139 Budapest, Hungary;
In cooperation with
STA Consulting KFT, a company incorporated and registered in Hungary whose registered office is at Csillagszem utca 20., 1037 Budapest, Hungary,
(together the “Licensor”);
(2) CUSTOMER, a company incorporated and registered in England with company number 0000000 whose registered office is at ADDRESS (the “Licensee”);
(A) The Licensee wishes to procure IT related products & services for the benefit of it and the Licensee Group Companies (as defined below).
(B) The Licensor is appointed under this agreement as the non-exclusive provider of such IT-related products and services.
(C) The Licensed Software is owned or licensed to the Licensor.
(D) The Licensor has agreed to license the Licensed Software to the Licensee as the end user.
(E) Authorised Employees may use the Licensed Software and receive and use the Maintenance and Support Services specified on the related Product Schedule, subject always to the terms and conditions of this agreement.
1. DEFINITIONS AND INTERPRETATION
1.1. The definitions and rules of interpretation in this clause apply in this Agreement.
(a) “Authorised Employees” shall mean those employees and approved contractors of the Licensee, Licensee Service Providers and its Licensee Group Companies who are granted access to, and permitted to use, the Licensed Software under this Agreement.
(b) “Breach of Duty” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
(c) “Business Day” shall mean any day other than (i) a Saturday, (ii) a Sunday or (iii) a day when the clearing banks are not physically open for business in the City of London;
(d) “Confidential Information” shall mean any commercial, financial or technical information relating to the business or prospective business of one party obtained directly or indirectly by or on behalf of the other in any form or medium pursuant to this Agreement which is expressly marked as confidential or which a reasonable person would reasonably regard as being confidential, together with any reproductions of this information.
(e) “Data Protection Legislation” means any legislation in force from time to time which implements the European Community’s Directive 95/46/EC and Directive 2002/58/EC and any other similar national privacy legislation,.
(f) “Developed Software” shall mean any software developed, customised or amended under this Agreement, solely for the Licensee, to the Licensee’s specifications or to meet the Licensee’s requirements by, or on behalf of, the Licensor under or in connection with this Agreement including, for the avoidance of doubt, any customisations created by the Licensor;
(g) “Deliverables” shall mean the Licensed Materials specified in SCHEDULE 1 and the Services specified in SCHEDULE 2.
(h) “Development Environment” shall mean a defined client environment on which a SAP development module is executed.
(i) “Documentation” shall mean the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable and/or machine-readable forms supplied by the Licensor with the Licensed Software as amended from time to time
(j) “Effective Date” shall mean the date of execution of this Agreement.
(k) “Fees” shall mean the Perpetual or Subscription Fee, and any other sums payable pursuant to this agreement as specified in the Product Schedule or otherwise agreed in writing between the parties.
(l) “Good Industry Practice” means, in relation to any particular circumstances, the degree of skill, diligence and operating practice which would reasonably be expected from a reasonably skilled and experienced provider of services of a similar type to the Services
(m) “Initial Subscription Term” shall have the meaning given to it in clause 2.1.
(n) “Intellectual Property Rights” shall mean all intellectual and/or industrial property rights of any nature anywhere in the world, including copyright, database rights, patents, know-how, design rights, registered designs, trade mark rights, service mark rights, domain name rights and topography rights; whether or not registered or capable of protection by registration and the right to apply for any of them, for the full term of such rights and all renewals and extensions, together with all accrued rights of action
(o) “Liability” means liability in or for all claims, losses or damage for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with the Agreement, including liability expressly provided for under the Agreement or arising by reason of the invalidity or unenforceability of any term of the Agreement (and for the purposes of this definition, all references to the “Agreement” shall be deemed to include any collateral contract).
(p) “Licence” shall mean the licence granted to the Licensor and the Authorised Employees in accordance with clause 3.1.
(q) “Licensed Materials” shall mean the Licensed Software and the Documentation.
(r) “Licensed Software” shall mean the Software, the Developed Software and the Licensed Software Components.
(s) “Licensed Software Components” shall mean the components of the Licensed Software to which the Licensee has acquired usage rights by virtue of this Agreement set out in SCHEDULE 3
(t) “Licensee Data” means all data or records of whatever nature and in whatever form relating to the Licensee group’s operations, facilities, assets, employees, clients or otherwise relating to business of the Licensee group, whether subsisting before the date of this Agreement or as created or processed as part of, or in connection with, the Deliverables, or provided by the Licensee group to the Licensor Group or the Subcontractors in connection with the Deliverables.
(u) “Licensee Data Protection Policy” means those policies notified to the Licensor from time to time that relate to the protection of Personal Data, as amended from time to time by Licensee.
(v) “Licensee Group” means the group companies of Licensee and “Licensee Group Company” means any one of them
(w) “Licensee Service Provider” has the meaning given to it under clause 5
(x) “Licensee Representative” a person duly authorised by the Licensee to act on its behalf for the purposes of this Agreement and identified to the Licensor by written notice from the Licensee.
(y) “Licensor Group” means the group companies of STA Consulting KFT and “Licensor Group Company” means any one of them.
(z) “Maintenance and Support Services” shall mean the maintenance, training, and other support services as set out at clause 4.3 and more particularly described in SCHEDULE 2 of this Agreement.
(aa) “Personal Data” shall mean data that is subject to protection under Data Protection Legislation.
(bb) “Personnel” means any individuals engaged in the provision of the Deliverables, including the employees, agents, consultants and Subcontractors.
(cc) “Product” shall have the meaning given in SCHEDULE 1
(dd) “Production Environment” shall mean a defined client environment on which a SAP production module is executed.
(ee) “Product Schedule” shall mean the document which lists the products and services to be supplied by the Licensor to the Licensee as set out at SCHEDULE 3 of this Agreement.
(ff) “Product Specification” shall mean the specification agreed between the Licensee and the Licensor and contained in SCHEDULE 1 which gives an overview of the core product and the specific requirements of the Licensor in relation to the Licensed Software (including the Licensed Software Components).
(gg) “Perpetual Fee” shall mean the fee for a perpetual license payed to the License of the Licensed Software
(hh) “Regulations” mean any laws, regulations, regulatory constraints, obligations or rules (including binding codes of conduct and binding statements of principle incorporated and contained in such rules) applicable to the existence or operation of this Agreement or the provision of the Services from time to time.
(ii) “Services” shall mean the Maintenance and Support Services.
(jj) “Software” shall mean the object code of any software application supplied by the Licensor, together with any modifications, updates and upgrades thereto, furnished to the Licensee by or on behalf of the Licensor, and any full or partial copies of any of the foregoing.
(kk) “Subcontractor” means a subcontractor of the Licensor, including any of the Licensor Group Companies, which performs the Work pursuant to this Agreement or which employs employees engaged in the provision of the Services.
(ll) “Successor Operator” means a person succeeding the Licensor or any Subcontractor in the provision or operation of any of the Deliverables or any part thereof including without limitation, Licensee or any other Licensee Group Company
(mm) “Subscription Fee” shall mean the fee covering the agreed amount for a given subscription period payed to the License of the Licensed Software
(nn) “Subscription Term” has the meaning given in Clause 2.1 (Being the Initial Subscription Term together with any subsequent Renewal Periods).
(oo) “Supplemental Product Schedule” shall mean any additional product schedule agreed and signed by an authorised representative of each party on behalf of that party following the date of this Agreement which supplements, amends or adds to the Product Schedule.
(pp) “Technical Specification” the specification of the Licensed Software and agreed between the Licensor and the Licensee to meet the Product Specification
(qq) “Test Environment” shall mean an SAP system not used for running Licensee’s internal business operations and where Licensee’s data is recorded for test purposes.
(rr) “Term” shall have the meaning given to it in clause 2.1.
(ss) “VAT” shall mean value added tax chargeable under the Value Added Tax Act 1994 or any replacement sales tax.
(tt) “Work” shall mean all the Services, works, duties and obligations to be carried out by the Licensor pursuant to this Agreement.
1.2. Clause, schedule and schedule headings do not affect the interpretation of this Agreement.
1.3. A “person” includes a corporate or unincorporated body.
1.4. Words in the singular include the plural and in the plural include the singular.
1.5. A reference to one gender includes a reference to the other gender.
1.6. A reference to a particular statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time, taking account of any amendment or re-enactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts and subordinate legislation for the time being in force made under it. Provided that, as between the parties, no such amendment or re-enactment made after the date of this Agreement shall apply for the purposes of this Agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party.
1.7. “Writing” or “written” includes faxes and e-mail.
1.8. References to “including” and “include” shall be deemed to mean “including without limitation” and “include without limitation” respectively.
1.9. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule.
1.10. Reference to this “Agreement” include:
(a) this Agreement as amended or varied in accordance with its terms; and
(b) the clauses and schedules referred to within this Agreement.
1.11. Precedence: If there is any conflict, apparent conflict or ambiguity in or between any of the sections of the Agreement set out below, the sections shall be applied in the following order of precedence with the sections higher in the order of precedence prevailing over the parties:
(a) the clauses; then
(b) the schedules ; then
(c) any other document referred to in this Agreement.
2.1. This Agreement shall commence on the Commencement Date and, subject to earlier termination pursuant to any of the termination provisions under this agreement, shall continue for the Initial Subscription Term of 12 months and thereafter, this agreement shall be automatically renewed for successive periods of twelve months (each a ‘Renewal Period’), unless:
- either party notifies the other party of termination, in writing, at least 30 days prior to the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the Initial Subscription Term or applicable Renewal Period (or earlier at the sole discretion of the Licensor); or
- otherwise terminated in accordance with the provisions of this agreement;
and each Renewal Period shall constitute the ‘Subscription Term’.
3.1. For the period of the Initial Subscription Term and any Renewal Period and in consideration of payment by the Licensee of the Subscription Fee, the Licensor grants the Licensee, its Licensee Group Companies and the Authorised Employees, a non-exclusive, non-transferable right to permit the Authorised Employees to use the Licensed Materials on the terms and conditions of this agreement.
3.2. The Licensed Materials are licensed according to the terms specified in the Product Schedule.
3.3. The Licence in clause 3.1 is personal to the Licensee and the Licensee shall not permit any third party, other than its Licensee Group Companies and the Authorised Employees, to use or have access to the Licensed Materials, except as expressly permitted in this Agreement or as permitted with the express prior written consent of the Licensor.
3.4. If the Licensee wishes to add additional Licensed Software Components, a Supplemental Product Schedule must be issued by Licensor and additional fees must be paid by the Licensee to Licensor for the amount agreed as set out in the Supplemental Product Schedule.
3.5. The Licensed Materials are licensed for the Licensee’s own internal use and the internal use of its Licensee Group Companies or in order for the Licensee to receive the benefit of the Licensed Materials. The Licensee may not sell, license, sublicense or transfer the Licensed Materials to any third party, other than its Licensee Group Companies, without the express prior written consent of Licensor or as expressly stated in the Product Schedule. Any use of the Licensed Materials by any Authorized Employees shall be solely for the benefit of Licensee or a Licensee Group Company and not for the benefit of any third party.
3.6. The Licensee may make a reasonable number of copies of the Software for archival/backup purposes. All titles, notices, legends and other markings must be accurately reproduced on all copies.
3.7. The Licensee may not use or disclose the Licensed Materials except as permitted by this Agreement.
3.8. Except as permitted by applicable law, the Licensee may not modify, translate, disassemble or decompile the Licensed Materials, nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Licensed Software, or use the object code or source code of the Licensed Software in whole or in part to create, or have created, translations or derivative works of the Licensed Software.
3.9. The Licensee shall not remove, alter or destroy any titles, notices, legends or other markings placed upon or contained within the Licensed Materials.
3.10. The Licensee shall safeguard the Licensed Materials from unauthorised use or disclosure employing, in any event, no less than a reasonable degree of care and no less care than Licensee uses to safeguard its own confidential information, and agrees to promptly notify Licensor of any unauthorised use or disclosure of the Licensed Materials and to provide reasonable assistance to Licensor in the investigation and prosecution of such unauthorised use or disclosure. If the Licensee discovers unauthorised use of the Licensed Materials, the Licensee has a duty to notify Licensor, remedy the unauthorised use and ensure prompt compliance with this Agreement.
3.11. The Licensor, may upon sixty (60) days’ notice to the Licensee and no more than once every 12 months from the Effective Date, audit the Licensee’s books and records and inspect the Licensee’s premises to ensure compliance with this clause 3, provided always: (i) that the Licensor shall not be entitled to access any book, record or premises not directly concerned with this Agreement; and (ii) that any such audit shall be limited to the extent strictly necessary to ensure compliance with this clause 3 and shall not cause any impact on the operations of the Licensee.
3.12. Nothing in this Agreement shall prevent the Licensor or any of the Licensor Group Companies from supplying deliverables similar to the Deliverables to another licensee.
4.1. The Licensor shall, during the Initial Subscription Term and the Subscription Term, provide the Maintenance and Support Services to the Licensee unless the Licence is provided at no cost in which case the provisions and guarantees of SCHEDULE 2 will not apply and the Licensor shall provide limited technical support (the ‘Services’) for the evaluation and use of the Product throughout the Term during the Business Day to the Licensee, but does make any guarantees with respect to the timeliness or accuracy of such support.
4.2. The Licensor shall have no obligation to provide any Maintenance and Support Services with respect to the Licensed Software due to any:
(a) misuse, or malfunction of hardware or operating systems caused other than by the use of the Licensed Software;
(b) repairs or modifications to the Licensed Software made by any person other than Licensor which may have caused the Licensed Software to operate other than in accordance with the Technical Specification;
(c) Licensee’s connection of a device or a program to the Licensed Software which has caused the Licensed Software to operate other than in accordance with the Technical Specification.
4.3. Without prejudice to the provisions of SCHEDULE 2, during the Initial Subscription Term, or provided that the Licensee has paid the Subscription Fees due and owing to the Licensor, by way of the provision of the Maintenance and Support Services, the Licensor shall:
(a) maintain the Licensed Software in an operable condition in accordance with the Technical Specification and the Documentation;
(b) provide Licensee with designated updates and enhancements to the Licensed Software that Licensor generally makes available without charge to other licensees of the Software; and
(c) provide correction, replacement or other services for a defect in accordance with the provisions of SCHEDULE 2
4.4. The parties shall inform each other of any suspected defects in the Licensed Materials. The Licensor cannot guarantee that permanent corrections will be provided within any specific time, however upon the parties informing each other of any suspected defects the Licensor shall immediately contact the licensee to arrange to correct the suspected defect. If at that time, the Licensor estimates that any permanent correction will take more than five Business Days from the day the defect was identified, it will using best endeavours provide a workaround or patch in accordance with the provisions of SCHEDULE 2. If a defect corrected by Licensor was directly caused by the Licensee, the Licensee and the Licensor shall agree the additional services required in order to fix such defect in advance of the services being provided and the fees due for such services, if any.
5. DEALING WITH THIRD PARTIES
5.1. The Licensor shall be open, co-operative and provide reasonable assistance to any third party providing services and/or goods (including and/or not limited to other IT suppliers) to the Licensee or the Licensee Group Companies or to any third party to whom the Licensee sub-contracts or delegates any of its rights and obligations under this Agreement (each being a “Licensee Service Provider”). This assistance shall include:
(a) providing such information about the manner in which the Services are provided as is reasonably necessary for the Licensee Service Providers to provide their services to the Licensee or carry out such activities as have been delegated to them by the Licensee;
(b) making available to, or accepting information from, such Licensee Service Providers, provided that Licensor may first require such Licensee Service Provider to enter into a written mutual confidentiality agreement with Licensor;
(c) complying with any operating level agreements entered into pursuant to this clause 5 from time to time.
5.2. The Licensor shall inform the Licensee of any disputes or disagreements between it and any Licensee Service Providers that arise when fulfilling its obligations under this clause 5.
6.1. The Licensor will provide the Licensee with activation keys to make the installed software functional from the Effective Date and throughout the Subscription Term.
7. Data Protection
7.1. The Licensee shall, if required and in sufficient time to permit the Licensor to meet all its obligations under this Agreement, give the Licensor reasonable access to Licensee data relating to the provision of the Maintenance and Support Services. Access to other data will only be provided with the prior written authorisation of the Licensee.
7.2. The Licensor acknowledges and agrees that all Licensee data is the Confidential Information of, and may consist of the Intellectual Property Rights of, the Licensee, its Licensee Group Companies and contractors and shall be subject to the provisions of this Agreement in relation to the same. Without prejudice to the foregoing, the Licensor shall use best endeavours and all reasonable skill and care in the use of such Licensee data to ensure that there is no loss of or damage to the Licensee data. The Licensor shall not access, copy, modify, alter, delete or otherwise use any Licensee data without the prior written agreement of the Licensee and shall only use such data in the proper performance of its obligations under this Agreement.
7.3. The Licensor shall:
(a) comply with the Licensee Data Protection Policy;
(b) process the Personal Data only for the purpose of performing the Services;
(c) comply with all the applicable requirements of the Data Protection Legislation including maintaining all necessary notifications;
(d) inform the Licensee within two (2) Business Days of any complaints about, or subject access requests for, the Personal Data processed as part of the Services and provide any information the Licensee requires to respond to that request or complaint; and
(e) refrain from processing Personal Data outside of the European Economic Area without the Licensee’s prior written consent.
8.1. The Licensor shall provide to the Licensee from time to time copies of the Documentation containing sufficient up-to-date information for the proper use and maintenance of the Licensed Software.
8.2. The Licensee may make such further copies of the Documentation as are reasonably necessary for the use and maintenance of the Licensed Software and for training the Licensee’s personnel in use of the Licensed Software. All titles, notices, legends and other markings must be accurately reproduced on all copies.
8.3. The Licensee may provide copies of the Documentation to any third party who needs to know the information contained in it, provided that such third party first enters into a confidentiality obligation in accordance with clause 22.
9. Licensor Personnel
9.1. During the term of this Agreement and for a period of six months after its termination neither party shall, without the prior written consent of the other, solicit, or permit any subsidiary or associated undertaking (as those terms are defined in the Companies Act 2006, sections 1159 and 345) to solicit, the employment of any person who is employed by the other party in the course of developing, supplying, maintaining or supporting the Licensed Software or any part of it save that nothing in this clause shall restrict either party employing an individual who is appointed through a bona fide recruitment campaign
10.1. Without limiting any of its other obligations under this Agreement the Licensor shall:
(a) comply with any Licensee security policy provided to Licensor in writing as applicable to the performance of the Services;
(b) take all reasonable steps to prevent the introduction of any Virus or other unauthorised computer program into its computer systems or those of Licensee;
(c) take reasonable steps to ensure the reliability of any Licensor Personnel who have access to Licensee Data;
(d) ensure that if any Licensee Data is placed on a portable electronic device (including laptops, memory sticks and back-up tapes) or transmitted electronically, it is securely encrypted; and
(e) ensure that if any Licensee Data is disposed of, such disposal takes place in a secure manner such that the Licensee Data is not recoverable.
11.1. The Subscription Fee shall be due from the Effective Date.
11.2. Subject to clause 12.1, the Licensor shall submit invoices to the Licensee for the Fees. The Licensee shall make payment of each invoice within thirty (30) days of the date of the invoice.
11.3. The Licensor shall ensure that all invoices for the Fees:
(a) are in such a format as Licensee may specify (acting reasonably) from time to time;
(b) include full details of the Licensee’s then purchase order under which the Deliverables to which the Fees relate;
(c) contain sufficient information to enable the recipient of the invoice to identify the Deliverables being invoiced and any disbursements or expenses being invoiced;
11.4. If the Licensee reasonably and in good faith disputes its obligation to pay part or all of an invoice submitted by the Licensor under this Agreement, then notwithstanding anything to the contrary in this Agreement:
(a) the Licensee must notify the Licensor in writing of the amount of the invoice which it disputes being obligated to pay (the “Disputed Amount”) and the reasons why it considers it is not obligated to pay the Disputed Amount;
(b) the Licensee’s failure to pay the Disputed Amount will be deemed not to be a breach of this Agreement;
(c) the Licensee must pay the undisputed balance of the invoice to the Licensor in accordance with this Agreement; and
(d) the parties must as soon as reasonably practicable discuss and use their respective reasonable endeavours to agree how much of the Disputed Amount is payable to the Licensor.
11.5. The parties agree that the Licensee is not liable to pay any amount under or in connection with this Agreement or the Deliverables, except as expressly stated in this Agreement.
12.1. The Fees and all other payments stated in SCHEDULE 3 are net of tax unless otherwise stated. The Licensee shall, in addition, pay to the Licensor the amount of any tax, duty or assessment, including but not limited to any applicable VAT, which the Licensor is obliged to pay and/or collect from the Licensee in respect of any supply under the Agreement (other than tax on the Licensor’s income).
13. LICENSORS WARRANTIES
13.1. The Licensor represents warrants and undertakes to Licensee that:
(a) it has the right to enter into this Agreement and that once executed this Agreement will constitute its legal valid and binding obligations;
(b) it will grant to the Licensee the Licence as contemplated by this Agreement and will have throughout the Term all necessary permits licences authorisations and consents to enter into this Agreement perform the Deliverables and comply with its obligations under this Agreement;
(c) the Licensed Materials will be free from defects for a period of thirty (30) days from delivery of the Licensed Materials (which shall for the avoidance of doubt, be deemed to commence upon Effective Date) (“Warranty Period”);
(d) the Licensed Materials and the media on which the Licensed Materials are delivered are free from viruses and/or other malicious code and/or any Licence key or other item or device that could impair the use of the Licensed Materials under this Agreement and shall ensure that none of the forgoing are caused to be present on the systems of the Licensee, its Licensee Group Companies or contractors as a result of its provision of the Services to the Licensee;
13.2. If, within the Warranty Period, or as soon as reasonably practicable thereafter, the Licensee notifies the Licensor of any defect or fault in the Licensed Materials in consequence of which it fails to conform to the warranty in clause 13.1(c), the Licensor shall correct any material error reported by the Licensee in the Licensed Materials free of charge so as to comply with the warranty in clause 13.1(c).
13.3. If within the Warranty Period, the Licensor is unable to make the Licensed Materials (or any part of them) operate as warranted, the Licensee will be entitled, upon uninstalling the Licensed Materials (or such part of it, as applicable) and any copies made, to a refund of the Fees paid by the Licensee to Licensor, and this Agreement will terminate.
13.4. The Licensor does not warrant that the Software will be uninterrupted, error-free or secure.
13.5. Except for the express warranties provided under this Agreement and to the extent possible by law, the Licensed materials and any media on which the Licensed Materials are delivered are provided “as is” and all conditions, warranties, terms and obligations other than in this Agreement, whether express or implied by statute, common law or otherwise, are excluded, whether oral or written, including, without limitation and as permitted by law, warranties as to satisfactory quality, merchantability, accuracy of results, fitness for a particular purpose or non-infringement, all of which are expressly disclaimed.
14. Intellectual property rights
14.1. Notwithstanding anything to the contrary in this Agreement (including in the remainder of this clause 14) the Licensor shall not be entitled to use the trademarks or any other promotional materials of the Licensee or any Licensee Group Company without the prior written approval of the Licensee or the relevant Licensee Group Company.
14.2. Upon receipt of such approval (not to be unreasonably withheld), the Licensor shall use such trade mark or promotional material only in the manner and for the purposes specifically approved in writing by the Licensee or the relevant Licensee Group Company.
14.3. Except for the Licence expressly granted hereunder, all rights, title and interest in the Licensed Materials, and in ideas, know-how or code related thereto provided by the Licensor or developed by the Licensor during the course of the Maintenance and Support Services or otherwise, including any Intellectual Property Rights, shall at all times remain the property of Licensor or its licensors.
15.1. The Licensor undertakes to defend the Licensee from and against any claim or action that the possession or use of the Licensed Material (or any part thereof) or any development, modification or maintenance of the Licensed Software by the Licensor infringes the Intellectual Property Rights of a third party (“Infringement Claim”) and shall fully indemnify and hold harmless the Licensee from and against any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against the Licensee as a result of or in connection with any such Infringement Claim.
15.2. The Licensee shall:
(a) as soon as reasonably practicable notify Licensor in writing of any Infringement Claim of which it has notice;
(b) provide Licensor with: (i) all related documentation in Licensee’s possession or control relating to such Infringement Claim; and (ii) reasonable assistance to Licensor in the defence of such Infringement Claim; and
(c) not make any admission as to liability or compromise or agree to any settlement of any Infringement Claim without the prior written consent of the Licensor, which consent shall not be unreasonably withheld or delayed.
15.3. The Licensor shall, upon written notice to Licensee and at its own expense, have the right to control the defence or settlement of all such Infringement Claims and shall keep Licensee apprised of the status of all such Infringement Claims. Licensee shall have the right, but not the obligation, to participate in the defence of all such Infringement Claims with counsel of Licensee’s choice at Licensee’s sole cost and expense.
15.4. Without prejudice to this clause 15, if any Infringement Claim is made, or in the Licensor’s reasonable opinion is likely to be made, against the Licensee, the Licensor may at its sole option and expense:
(a) procure for the Licensee the right to continue using, developing, modifying or maintaining the Licensed Material (or any part thereof) in accordance with the terms of this Agreement;
(b) modify the Licensed Material so that it ceases to be infringing; or
(c) replace the Licensed Material with non-infringing material; or
(d) without prejudice to the Licensee’s rights under this Agreement, terminate this Agreement and refund the Fees which the Licensee has paid to the Licensor under this Agreement;
provided that, if the Licensor modifies or replaces the Licensed Materials, any modified or replacement Licensed Software must comply with the warranties contained in clause 13.1 and the Licensee shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Agreement been references to the date on which such modification or replacement was made.
15.5. The Licensor will have no liability with respect to any Infringement Claim arising out of modification of the Licensed Material by the Licensee, or use of the Licensed Software in combination with other software or equipment, where such infringement claim(s) would not have occurred in the absence of the modification or use in combination.
15.6. Licensee shall indemnify and hold Licensor, the Licensee Group Companies and their successors, officers, directors, employees and attorneys harmless from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of any action set forth in clause 15.7. Licensor shall give Licensee prompt written notice of any claim, action or demand for which indemnity is sought hereunder and Licensee shall control, at Licensee’s sole cost and expense, the defence or settlement of any such claim. Licensor shall have the right, but not the obligation, to participate in the defence of such claim with counsel of Licensor’s choice at Licensor’s sole cost and expense.
15.7. The Licensor will have no liability with respect to any Infringement Claim arising out of:
(a) any repair, adjustment, modification, configuration or alteration of the Licensed Material by the Licensee or any unauthorized third party;
(b) use of the Licensed Software in combination with other software or equipment, where such infringement claim(s) would not have occurred in the absence of the modification or use in combination;
(c) Licensee’s use of the Licensed Software other than as contemplated in this Agreement;
(d) Licensee’s failure to use corrections or modifications (including updates or upgrades) made available by Licensor to the Licensee if such corrections or modifications would have prevented the infringement; or
(e) Licensor’s compliance with designs, plans or other instructions provided to Licensor by Licensee or any third party.
16. Third party rights
16.1. This Agreement and the documents referred to in it, are made for the benefit of the parties to them and their successors and permitted assigns and are intended to benefit, or be enforceable by,:
(a) a person who under clause 25 is a permitted successor or assignee of the rights or benefits of a party that may enforce such rights or benefits;
(b) Licensee Group Companies;
16.2. Save in respect of clause 16.1 the parties expressly agree that the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
17.1. Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform this Agreement and that those signing this Agreement are duly authorised to bind the party for whom they sign.
18. Dispute resolution
18.1. Any dispute which may arise between the parties concerning this Agreement shall be determined as provided in this clause 18.
18.2. For the purpose of this clause 18, a dispute shall be deemed to have arisen when one party serves on the other a notice in writing stating the nature of the dispute.
18.3. Unless this Agreement has already been terminated by the date of the notice of dispute, the Licensor shall, in every case, continue with the Work with all due diligence regardless of the nature of the dispute and the Licensee shall continue to make payments (excluding any disputed sums) in accordance with clause 11.4.
18.4. After service of the notice of dispute, the following procedure shall be followed by the parties (all periods specified in this clause 18.4 shall be extendable by mutual agreement):
(a) within two days, the Licensor and the Licensee Representative shall meet to attempt to settle the dispute;
(b) if the Licensor and the Licensee Representative are unable to reach a settlement within 10 days from the date of service of the notice, the management of each of the parties shall meet within the following 10 days to attempt to settle the dispute; and
(c) if no settlement results from the meeting specified in clause 20.4(b) for the following thirty (30) days the parties shall attempt to settle the dispute by mediation by an independent mediator, with costs to be shared equally between the parties.
18.5. If no settlement is reached under the provisions of clause 18.4, either party may pursue any remedy available to it under this Agreement at law or in equity.
18.6. Nothing in this Section shall prohibit either party from seeking immediate injunctive relief in any court of competent jurisdiction.
19.1. The Licensor may terminate this agreement by giving to the Licensee no less than 60 days prior written notice.
19.2. Either party shall have the right to terminate this Agreement after the escalation procedure specified in clause 18, where the alleged material breach has been discussed, upon the material breach of the other party, which breach has remained uncured for a period of thirty (30) days after the receipt of written notice thereof from the non-breaching party. Notwithstanding the foregoing, Licensor shall have the right to terminate this Agreement immediately upon Licensee’s unauthorized use of the Licensed Materials or Licensor’s Confidential Information hereunder.
19.3. Either party shall have the right to terminate this Agreement by providing written notice to the other party upon the occurrence of any of the following events, but only to the extent, in the case of sub-clauses (i) to (iii) below, such events are not dismissed within one hundred and twenty (120) days from the date such events first occurred: (i) a receiver is appointed for the other party; (ii) the other party makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (iii) the other party commences or has commenced against it, proceedings under any bankruptcy law; or (iv) the other party ceases to do business.
19.4. Termination or expiration of this Agreement shall be without prejudice to any accrued rights or remedies of either party including without limitation injunctive relief.
19.5. Termination or expiration of this Agreement will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
19.6. Upon termination or expiration of this Agreement for any reason:
(a) the Licensor shall cease to perform the Services under this Agreement;
(b) all outstanding Fees for Services successfully performed shall become payable;
(c) the Licensee shall cease all use of the Licensed Materials; and
(d) the owner of Confidential Information may at its option require the other party to delete all such Confidential Information (other than in the case of the Licensor, the Licensed Materials) from any computer disks, tapes or other material in its possession or under its control or deliver up or destroy materials and tangible items in its possession or under its control which contain or refer to any such Confidential Information or which belong to the party requiring the action.
20. LIMITATION OF LIABILITY
20.1. Neither party excludes or limits its Liability for:
(a) its fraud; or
(b) death or personal injury caused by its Breach of Duty; or
(c) any breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
(d) supply of a defective product in accordance with Part I of the Consumer Protection Act 1987; or
(e) any other Liability which cannot be excluded or limited by applicable law.
20.2. Subject to clause 20.1, the Licensor does not accept and hereby excludes any Liability for Breach of Duty other than any Liability arising pursuant to the terms of the Agreement.
20.3. Subject to clause 20.1, the neither party shall have any Liability to the other in respect of any:
(a) indirect or consequential losses, damages, costs or expenses;
(b) loss of use of money;
(c) loss of goodwill;
(d) loss of reputation;
(e) loss of opportunity; or
whether or not such losses were reasonably foreseeable or the relevant party or its agents, staff, officers, employees or sub-contractors had been advised of the possibility of the other party incurring such losses.
20.4. Subject to clause 20.1, in respect of any Liability and the exclusions and limits set out in the rest of this Agreement, the total aggregate Liability of one party to the other shall be limited to 150% of the total Subscription Fees paid by the Licensee to the Licensor, in aggregate under this Agreement, for the Licensed Software.
20.5. Subject to clause 20.1, in respect of any Liability and the exclusions and limits set out in the rest of this agreement, the total aggregate Liability of the Licensor to the Licensee shall be limited to £100 where the Licence has been provided at no cost and clause 20.4 shall not apply to this agreement.
20.6. The limitation of Liability under clause 20.4 has effect in relation both to any Liability expressly provided for under the Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of the Agreement.
20.7. The Licensee is responsible for the data and other results obtained from operation of the Licensed Software. The Licensor will assume no liability to the Licensee, third parties or related parties in connection with the use of such data and other results.
21.1. The Licensor shall, at its own expense, maintain in effect such insurance policies with a reputable third party insurance company as it is required to hold under applicable law and regulations and such other policies, at such coverage limits, as a prudent business conducting similar operations would maintain (the “Insurance Policies”).
21.2. The Insurance Policies will include the following cover:
(a) public liability insurance in respect of loss or injury to persons or damage to tangible property with a minimum level of cover of £2 (Two) million pounds for any one claim and in all;
(b) professional indemnity insurance with a minimum level of cover of £2 (Two) million pounds for any one claim and in all; and
(c) employers liability insurance with a minimum level of cover of £10 (Ten) million pounds for any one claim and in all.
22.1. Each party shall keep and procure to be kept secret and confidential the Confidential Information of the other party (whether before or after the date of this Agreement) and shall not use nor disclose the same save:
(a) for the purposes of the proper performance of this Agreement; or
(b) as otherwise permitted by this Agreement; or
(c) with the prior written consent of the other party.
22.2. Each party may disclose the Confidential Information of the other party to its employees, agents, consultants and contractors who reasonably need to receive the Confidential Information of the other party for the purposes of this Agreement. Where one party discloses Confidential Information of the other party to its employee, agent, client, consultant or contractor, it shall do so subject to obligations equivalent to those set out in this clause 22. Each party shall use its best endeavours to ensure that any employee, agent, client, consultant or contractor complies with such obligations.
22.3. The obligations of confidentiality in this clause 22 shall not extend to any matter which either party can show:
(a) is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or
(b) was in its written records prior to receipt; or
(c) was independently developed by it; or
(d) was independently disclosed to it by a third party entitled to disclose the same.
22.4. If either party (or that party’s employee, agent, client, consultant or contractor) is required to disclose the Confidential Information of the other party under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction, then that party shall, prior to any disclosure where practicable, notify and consult with the other party and, at the other party’s request and cost, assist that other party in opposing any such disclosure. In any event, where a party (or its employee, agent, client, consultant or contractor) is required to disclose the other’s Confidential Information, that party shall use all reasonable endeavours to require the recipient to keep the Confidential Information strictly confidential.
22.5. Neither party shall make any announcement of any kind in respect of the subject matter of this Agreement except with the prior written consent of the other party (not to be unreasonably withheld or delayed) or as is required by law.
22.6. The obligations of this clause 22 shall continue after termination of this Agreement for whatever reason.
23. FORCE MAJEURE
23.1. Except for obligations in respect of payment of the Fees, neither party shall be liable for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by circumstances of force majeure including act of God, insurrection, riot, civil commotion, war, hostilities, warlike operations, national emergencies, terrorism, piracy, arrests, restraints or detainments of any competent authority, epidemic, fire, explosion, storm, flood, drought, earthquake, natural disaster, accident, failure or problems with public utility supplies (including electrical, telecoms or general Internet failure), (each an “Event of Force Majeure”).
23.2. Each party shall notify the other upon becoming aware of an Event of Force Majeure, detailing the circumstances giving rise to the Event of Force Majeure.
23.3. The performance of each party’s obligations shall be suspended during the period that the circumstances persist and such party shall be granted an extension of time for performance equal to the period of the delay.
23.4. Each party shall bear its own costs incurred by the Event of Force Majeure.
23.5. If the Event of Force Majeure continues without a break for more than thirty (30) days, either party may terminate this Agreement immediately by notice to the other, in which event neither party shall be liable to the other party by reason of such termination.
24.1. Any notice or other communication required or authorised to be given under this Agreement shall be in writing and may be served by personal delivery or by recorded delivery letter (if to an address in the same country) or by overnight courier or by facsimile addressed to the relevant party at its address stated in this Agreement or at such other address or facsimile number as is notified by the relevant party to the other for this purpose from time to time or at the address or facsimile number of the relevant party last known to the other.
24.2. Any notice so given by post shall be deemed to have been served two Business Days after the same shall have been despatched to the overnight courier or Post Office and any notice so given by facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, despatched or an answerback signal received.
25. ASSIGNMENT AND SUBCONTRACTING
25.1. Subject to clause 25.2 neither party shall assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Agreement or any right, benefit or interest under it, nor transfer or novate any of its obligations under this Agreement, without the prior written consent of the other party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, Licensor shall have the right to assign this Agreement without the consent of Licensee to any Licensor Group Company or successor to the business or assets of Licensor or any Licensor Group Company, whether by means of a merger, acquisition, sale of all or substantially all of Licensor’s assets, change of control, reorganization or other similar transaction. Following such transaction, Licensor shall notify Licensee in writing of the assignment.
25.2. Where the intended assignee is, in the sole opinion of the Licensor, a competitor of the Licensor, the Licensor shall have the right to terminate this Agreement forthwith by notice in writing to the Licensee, and shall refund all Fees paid by the Licensee to Licensor pro rata in respect of any period of the Term remaining after the date of termination, whereupon the Licensor shall have no further obligation or liability to the Licensee.
25.3. The Licensor may subcontract any non-material part of the Services without notifying the Licensee.
25.4. If the Subcontractor constitutes a ‘sub-processor’ under the EU Data Processor Clauses, the Licensor shall ensure that the requirements of the EU Data Processor Clauses are satisfied in respect of that Subcontractor.
25.5. The Licensee’s consent to any such subcontracting will not relieve the Licensor of its obligations to the Licensee under this Agreement and the Licensor shall be fully responsible to the Licensee for the acts or omissions of its Subcontractors and their Personnel. Any obligation on the Licensor to do, or refrain from doing, any act or thing shall include an obligation upon the Licensor to procure that the Subcontractors and Personnel also do, or refrain from doing, such act or thing.
26.1. Except as expressly provided herein, this Agreement (together with any documents referred to in it) shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the parties hereto preceding the date of this Agreement and in any way relating to the subject matter of this Agreement and to the exclusion of any representations not expressly stated herein save for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter (to the extent permitted by law). Each party acknowledges that it has not entered into this Agreement based on any representation that is not expressly incorporated into this Agreement.
26.2. This Agreement (together with any documents referred to in it) constitutes the whole Agreement and understanding of the parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
26.3. Except as expressly stated herein, no failure or delay by either party in exercising any right under this Agreement shall operate as a waiver of such right or extend to or affect any other or subsequent event or impair any rights or remedies in respect of it or in any way modify or diminish that party’s rights under this Agreement.
26.4. If either party wishes to make a change to this Agreement or any document agreed pursuant to the terms of this Agreement (a “Change”), including the addition of new Deliverables or the modification of existing Deliverables then an amendment or Supplemental Product Schedule to this Agreement shall be prepared in respect of the Change. Except as otherwise provided in this Agreement, no Change to this Agreement shall be binding unless it is agreed in writing signed by each of the Licensor and the Licensee.
26.5. If any provision in this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other provision or part of any provision, all of which shall remain in full force and effect.
26.6. Nothing in this Agreement shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the parties.
26.7. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Each party to this Agreement may enter into this Agreement by signing any such counterpart.
26.8. This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.
26.9. The Licensee understands that all Licensed Materials made available to it hereunder, and the direct product produced through use thereof, may be subject to export control laws and regulations of the European Union and United Kingdom. The Licensee shall not export or re-export the Licensed Materials, such information, or the direct product produced through use thereof, except in strict compliance with all such laws and regulations.
The parties hereto have caused the Agreement to be executed by their duly authorised representatives on the date first above written.
EXECUTED as an Agreement
|EXECUTED by STA Consulting KFT (company number:) by being signed by those persons who are authorised to sign on behalf of the Licensor:
||……………………………………………………………………….Signature of Authorised Person
……………………………………………………………………….Name of Authorised Person
……………………………………………………………………….Office Held Date
| EXECUTED by LICENSEE (company number:0000000) by being signed by those persons who are authorised to sign on behalf of the Licensee:
||……………………………………………………………………….Signature of Authorised Person
……………………………………………………………………….Print name of Authorised Person
……………………………………………………………………….Office Held Date
SCHEDULE 1: LICENSOR’S PRODUCT DESCRIPTION
SCHEDULE 2: MAINTENANCE AND SUPPORT SERVICES
- “Maintenance Hours” are 9.00 – 18.00 hours on a Business Day in CET unless otherwise agreed between the parties.
- “Fault” is a failure of the Licensed Software to operate in accordance with the Documentation and Technical Specification.
- “Fault Call” is a Fault reported by the Licensee via the “Contact Email Address” (email@example.com )
- “Helpdesk” is the helpdesk provided by the Licensor which is accessed via the Contact Email and Telephone Number to promptly deal with Licensee queries relating to the Licensed Software and identify Faults.
- “New Version” is a new version of the Licensed Software which provides significant additional or enhanced functionality and/or significantly enhanced performance in comparison with the previous version and is offered by the Licensor as a separate product to all of the Licensor’s customers (which may be indicated by a new version number or product name) for an increased or additional charge. For the avoidance of doubt, the Licensor shall offer to the Licensee at no additional charge those components of all such new versions of the Licensed Software providing the functionality already licensed by the Licensee.
- “Patches” is a patch to enhance and/or update the functionality of the Licensed Software to address any failure of the Licensed Software to function and perform in accordance with the Technical Specification and/or the Documentation;
- “Releases” is all Patches, revisions and updates to the Licensed Software which correct faults, contains consolidated error corrections, and/or adds minor functional enhancements (but does not constitute a New Version) and which the Licensor makes generally available to its customers in respect of the Licensed Software without additional charge and/or to those customers who receive services similar to the Maintenance and Support Services.
- “Service Levels” means the service levels as specified below.
Maintenance Hours for Maintenance and Support Services:
During the Maintenance and Support Hours, the Licensor shall, in accordance with the Agreement and Service Levels:
- provide the Helpdesk using competent personnel who have sufficient skill and expertise to enable them to operate the Helpdesk;
- accept Fault Calls via the Contact Email Address;
- respond to and investigate Fault Calls;
- provide regular progress and resolution reports on Fault Calls;
- provide a temporary fix or workaround prior to providing a permanent fix for all Faults;
- provide the Licensee with fully tested fixes for Faults in both object and source code, all necessary instructions to enable the Licensee to implement the fix together with appropriate amendments to the Documentation specifying the nature of the correction and providing instructions for the implementation of the fix; and
- provide the Licensee with reasonable assistance to implement such fixes which may include Licensor attending at the Licensee’s premises to oversee and, if necessary, implement the installation of such fixes, if the Licensee experiences difficulties in implementing them.
Call Priority Definition
All Faults will be assigned a priority by the Licensee in accordance with the guidelines set out below:
||A Fault which inhibits all or substantially all of the Licensed Software from functioning. A level 1 Fault is severe and / or mission critical.
|A Fault where major functionality of the Licensed Software is inhibited, but this Fault does not materially disrupt Licensee’s business.
|A Fault where a feature of the Licensed Software is inhibited, but this Fault does not materially disrupt Licensee’s business.
||A Fault which is minor or cosmetic in nature.
At the Licensee’s discretion, the priority of a Fault may alter during its lifetime due to a change in circumstances or a failure to comply with the Service Levels.
The table below defines the times within which the Licensor will respond, update, provide a fix/workaround and to provide a resolution to a Fault.
||Temporary Fix / Workaround Time
||The Licensor shall: acknowledge the logging of the Fault within two hours of the Licensee notifying the Licensor of a Fault.
||Every two hours
||The Licensor shall use every effort to restore the Licensed Software and continue work until the Licensed Software restoration or workaround is provided.The Licensor shall use every effort to provide restoration of level 1 Faults within 12 hours from the Licensee’s notifying the Licensor of a level 1 Fault.
||Next interim build release
||The Licensor shall acknowledge the logging of the Fault within two hours of Licensee the notifying the Licensor of a Fault.
||Every six hours
||The Licensor shall use every effort to restore the Licensed Software and continue work until the Licensed Software restoration or workaround is provided.The Licensor shall use every effort to provide restoration of level 2 Faults within 24 hours from the Licensee notifying the Licensor of a level 2 Fault.
||Next interim build release
||The Licensor shall acknowledge the logging of the Fault within 24 hours of the Licensee notifying the Licensor of a Fault.
||Every 24 hours
||The Licensor shall use every effort to restore the Licensed Software and continue work during normal business hours until the Licensed Software restoration or workaround is provided.The Licensor shall use every effort to provide restoration of level 3 Faults within four Business Days from the Licensee notifying the Licensor of a level 3 Fault.
||Next planned build release
||The Licensor shall acknowledge the logging of the Fault within 24 hours of Licensee notifying the Licensor of a Fault.
||Every five Business Days.
||The Licensor shall provide restoration of level 4 Faults in the New Version of the Licensed Software.
||Next planned build release
- Time shown refers to the elapsed time from the time the Fault Call is made. If both parties agree that insufficient information has been given for the Licensor to analyse the problem, then an appropriate amount of time will be deducted from the timings. This deduction of time will take account of the period whilst the information was lacking and the extent to which it impacted on the Licensor’s ability to analyse the problem.
- “Response” in this context means the Licensor contacting the Fault originator to seek further clarification or information about the incident and to provide the originator with timescales for the next update.
- “Update” means communication from the Licensor to the Licensee on the status of the Fault.
- “Temporary fix or workaround” in this context means the communication to the Fault originator (or nominee) of a suitable alternative means of achieving the business function using either other system functions or established manual procedures (i.e. a workaround), or some other interim solution to the Fault.
- The “temporary fix or workaround” will be marked as completed by the Licensor when the Fault originator (or nominee) has accepted that the “temporary fix or workaround” has temporarily or permanently corrected the reported Fault to their satisfaction. Elapsed time for testing and verification by the Fault originator (or nominee) is excluded from the measurement of the Licensor’s elapsed time to provide the “temporary fix or workaround”.
- “Permanent fix” in this context means the permanent provision to the Fault originator (or nominee) of access to amended software that corrects the reported incident. The “permanent fix” will be marked as completed by the Licensor when the originator (or nominee) has accepted that the “permanent fix” has corrected the reported incident to their satisfaction. Elapsed time for testing and verification by the Fault originator (or nominee) is excluded from the measurement of the Licensor’s elapsed time to provide the “permanent fix”.
SCHEDULE 3: PRODUCT SCHEDULE
||Unit Price (£)
The Subscription Fee set out above shall be subject to an annual indexation increase of 2% on each anniversary of the Effective Date.