COMPILATOR LTD SOFTWARE LICENSE AGREEMENT
LICENSE TERMS AND CONDITIONS
These License Terms and Conditions (the “T&C”) constitute Schedule 2 to the Compilator Software License Agreement (the “License Agreement”) entered into between Compilator and Customer and forms an integral part thereof. All capitalized terms used in these T&C shall, unless otherwise defined, have the meanings ascribed to them in the License Agreement.
The following terms have the meanings set forth below whenever they are used in these T&C
1.1 “Documentation” means a copy of the documentation containing the specifications for the Software and the operating instructions of the Software, as provided by Compilator together with the Software for use by its end-user licensee
1.2 “Invoice” means Compilator’ invoice to Customer for the Software license granted hereunder
1.3 “License Activation” means the activation keys and/or other information relevant for activating the Software
1.4 “Customer’s Site” means either the site(s) for which Customer will use the Software, as specified in a Compilator quotation, the Invoice or License Activation, as the case may be.
2. TERM OF AGREEMENT
2.1 These T&C shall become effective upon signing of the License Agreement, and shall remain in effect during the Term (as defined in the License Agreement), subject to the terms and conditions set out below
3. OWNERSHIP AND LICENSE GRANT
3.1 Compilator and third parties that have ownership interest in and to the Software shall retain all right, title and interest to the Software and Documentation, including all copyrights thereto, and any copies of the Software or Documentation, whether authorized or unauthorized. Customer acknowledges that the Software contains confidential information that is proprietary to Compilator.
3.2 Subject to the terms and conditions of these T&C, Compilator hereby grants to Customer a personal, non-transferable and non-exclusive license to use the Software (the “License”). As set out in the Invoice or the License Activation, the License may be designated as a Site License or a Stand Alone License. Customer’s number of Licenses of the Software shall also be stated in the Invoice or the License Activation.
3.3 Site License: If the License granted hereunder is a Site License, as set out in the Invoice, Customer may use the License at Customer’s Site on a single, stationary designated server host (unless otherwise specified by Compilator in writing). The Customer may further use the Software only for such number of Licenses at Customer’s Site as designated in the Invoice(s). The Software may not be accessed by users from other computer units other than the unit designated in the Invoice or License Activation, either through Internet or any other means of network or remote access, with the exception of Compilator’ products which by their inherent functionality are intended to be accessed through Internet, network or remote access (as expressly stated in writing by Compilator). Customer may de-install, move and reinstall the Software on different host equipment at the same Customer’s Site with prior written notice to Compilator, however Customer may not move the Software outside the Customer’s Site unless Compilator has given its prior written approval and any applicable transfer license fees have been paid.
3.4 Stand Alone License: If the License granted hereunder is a Stand Alone License, as set out in the Invoice or License Activation, Customer may use the License only on the single, self-contained computer unit (stationary or portable) as designated in the Invoice or License Activation (through its IP number or other means of identification). In such event, the Software may not be accessed by users from other computer units other than the unit designated in the Invoice or License Activation, either through Internet or any other means of network or remote access, with the exception of Compilator’ products which by their inherent functionality are intended to be accessed through Internet, network or remote access (as expressly stated in writing by Compilator).
3.5 Source Code License: If the Customer receives Software hereunder which contains software modules or components in source code format (“Source Code”), the following shall apply to such Source Code, in addition to all other provisions of these T&C: Customer may use such Source Code only in conjunction with the Software and only in accordance with the provisions on such use set out in the Documentation and these T&C. Notwithstanding any restrictions provided for in section 4.1 herein, Compilator retains all proprietary rights to any changes and enhancements made to Compilator’ source code by any party. However, any computer code, or programs developed by Customer, other than that which is licensed Software or derivatives thereof, shall belong to Customer. Customer is strictly prohibited from making any other use of the Source Code. Any breach of this Section 3.5 shall be considered a material breach of these T&C.
3.6 Back-up Copies: Customer may make back-up copies of the Software in machine executable code form, only to be used in the event that the copy of the Software received from Compilator fails to function, is lost, damaged or destroyed. Customer warrants that it will make no other copies of the Software and will not allow, authorize or assist others to copy any part or all of the Software in any form without the prior written approval of Compilator. There may be no more copies than are necessary to form part of a reasonable back-up cycle for Customer. Back-up copies of the Software maybe kept by Customer in a bank deposit or such other secure place as is normally used by Customer for storage of its computer program back-ups. Each back-up copy shall display the same program name, serial number (if applicable), version number, copyright and trademark notices as the original licensed copy provided by Compilator
4. LICENSE RESTRICTIONS
4.1 Customer may not reverse engineer, decompile, or disassemble the Software for any purpose. Customer accepts that all information gained about the Software is the valuable property of Compilator and as such must be treated as confidential as described under Article 5. Customer warrants that it will not sell, license, lease, rent, loan, lend, transmit, network, or otherwise distribute or transfer the Software in any manner to any third party. However, Customer may allow access to the Software to its contractors, subcontractors, or consultants for its own internal business purposes subject to the terms of these T&C. Customer may not use the Software to conduct a service bureau, ASP or similar business for the benefit of third parties. Customer is expressly prohibited from adapting, modifying, revising, improving, upgrading, enhancing and creating derivative works of the Software for any purpose including error correction or any other type of maintenance, except as expressly allowed in the Documentation
4.2 Upon request by Compilator, Customer may permit Compilator or a third party designated by Compilator to have access to Customer’s records and computer systems and the right to audit Customer’s systems to ensure Customer is using its software in accordance with its license terms.
5.1 Customer agrees and acknowledges that the Compilator Software and any information and materials including methodologies and know-how relating in and to the Compilator Software is confidential information and contains trade secrets of Compilator and third parties having ownership interest in and to the Compilator Software, and shall be held in the strictest confidence by Customer and shall not be copied, reproduced, or disclosed, to any third party for any purpose whatsoever other than for Customer’s internal business purposes as set forth in this License Agreement. Customer agrees to use at least the same security measures as it uses to protect its own confidential and trade secret information, but no less than reasonable measures. Confidential information does not include information which Customer can demonstrate: (i) was at the time of disclosure to Customer, generally part of the public domain or thereafter becomes generally part of the public domain through no act or omission of Customer; or (ii) was lawfully in Customer’s possession as shown in written records prior to such disclosure and without obligation of confidentiality; or (iii) was lawfully received by Customer after disclosure from a third party without obligation of confidentiality and without violation by such third party of an obligation of confidentiality to another; or (iv) was required to be disclosed by law or court order from a court of competent jurisdiction provided that Compilator is given reasonable time to take legal action to quash such action and seek other protection. Customer shall hold harmless, defend and indemnify Compilator from and against any and all losses, costs, damages and expenses arising out of or in connection with the Customer’s failure to comply with requirements of this Article 5. Customer’s confidentiality obligations hereunder shall survive termination, for any reason, of these T&C.
5.2 Customer shall not alter or delete any copyright or trademark notice, trade name, or other markings which identify Compilator’ proprietary rights and interests in the Software and documentation.
5.3 Customer agrees and acknowledges that any breach of the provisions regarding the ownership or confidentiality contained in this License shall cause Compilator irreparable harm and Compilator may obtain injunctive relief as well as seek all other remedies available to Compilator in law and in equity.
6. PAYMENT TERMS
6.1 In compensation of the rights granted and services rendered by Compilator under the License Agreement these T&C, Customer shall pay to Compilator the license fees for the Software as specified in the Invoice. Payments are to be made monthly in advance through direct debit, unless otherwise stated in the payment schedule in the Invoice.
6.2 In case of late payment, Compilator shall be entitled to interest on late payment at an annual interest rate of twelve (12) per cent. Furthermore, Compilator may notify Customer to pay in writing. If Customer still has not paid the relevant overdue amount within ten (10) days from the date of such notification, Compilator is entitled to temporarily block the Customer from use of the Software and cease providing services to the Customer hereunder. Upon such temporary block, Compilator may further give Customer a final time period of not less than five (5) days to pay the outstanding overdue amount and if payment has not been received within such time frame, Compilator may terminate the License Agreement in writing with immediate effect and claim damages for the losses caused by such termination.
6.3 Not less than three (3) months before the end of the initial term and each twelve (12) month extension period set out in the License Agreement, Compilator shall be entitled to adjust the above stated monthly fees for the License granted hereunder, through written notification thereof to Customer. If Customer does not accept the adjusted prices, Customer may terminate the License Agreement in writing not less than one (1) month prior to the commencement of the new twelve (12) month period. Failure by Customer to terminate the License Agreement will be deemed as acceptance of the new prices.
6.4 All prices are exclusive of, and Customer is responsible for, all fees and taxes, including custom duties, importation fees, sales, use, and withholding, gross revenue and like taxes, dues and charges assessed or incurred in connection with the provision of goods and services under the License Agreement.
7. LIMITED WARRANTY
7.1 Compilator warrants that it has good and clear title to, or has the right to sublicense, the Software being licensed hereunder, free and clear of all liens and encumbrances.
7.2 Compilator warrants that the media on which the Software is recorded upon receipt by Customer will be substantially free from defects in materials and faulty workmanship under normal use and that the software will substantially operate according to specifications published by Compilator for a period of ninety (90) days from the date of shipment. During this warranty period Compilator will, at its option, repair or replace, free of charge, defective media upon which the Software was supplied and record a copy of the Software on the repaired or replacement media. Said repair or replacement shall be Customer’s sole remedy and Compilator’ exclusive liability under this media warranty. Compilator shall have no responsibility to repair or replace a media which, in Compilator’ opinion, has been damaged by Customer by accident, abuse, or as a result of attempted self-maintenance service, notwithstanding the foregoing.
7.3 Compilator does not warrant that the Software will meet Customer’s requirements or that the operation of the Software will be uninterrupted and error free. Customer is solely responsible for the selection of the Software to achieve its intended results and for the results actually obtained.
7.4 The above warranty does not apply to conditions resulting from improper use, external causes, including service or modifications not performed by Compilator or Compilator’ appointed contractor, or operation outside the specified environmental parameters. Compilator will not be responsible for operation of the Software other than on the host equipment specified in the Invoice or License Activation and in conjunction with the operating environment designated for each version of the Software.
7.5 The above warranty is Compilator’ only warranty with regard to the Software, the Documentation and the License Agreement and, save as provided in these T&C, no other warranty or condition, express or implied, will apply. Compilator specifically excludes without limitation all other warranties, representations or undertakings relating to performance including any warranties that might otherwise be implied, such as those of satisfactory quality, merchantable quality, merchantability, fitness for a particular or any purpose, ability to achieve any particular result, title or non-infringement.
8 LIMITATION OF LIABILITY
8.1 The use of the Software and all consequences arising therefrom is the sole responsibility of Customer. Compilator shall not be liable to Customer for any loss or damage caused arising directly or indirectly in connection with the Software, the use of the software or otherwise.
8.2 Compilator’ aggregated liability under this License Agreement shall under all circumstances be limited to fifty (50) percent of Customer’s license fee for the Software paid hereunder during the last twelve (12) months preceding the claim.
8.3 Compilator shall in no event be liable to Customer under this License Agreement for any special, indirect, incidental or consequential damages, or for loss of data, use and/or profits, goodwill, claims for services interruptions, downtime costs and capital costs or claim of a third party under any legal theory whether on account of defects, performances, non-performances, delays or failure to supply, personal injuries, property damages or otherwise, with the exception of damages due solely to Compilator’ willful misconduct or gross negligence. In no event shall any third party having rights in and to the Software be liable to Customer for any damages whatsoever.
9. FORCE MAJEURE
9.1 Either party shall be excused from fulfillment of any obligation under these T&C only to the extent that and for so long as such performance is prevented or delayed by an industrial dispute or any other cause beyond its reasonable control, such as, but not limited to, riots; floods; war; warlike hostilities; fires; embargo; shortage of labor, power, fuel, means of transportation or common lack of other necessities. In such event or cause, such party shall promptly notify the other party who may extend the time of performance required to remedy such breach, to an amount equal to the time loss caused by the event.
10. UPDATES AND SUPPORT AND MAINTENANCE
10.1 These T&C does not grant Customer rights to any improvements, modifications, enhancements, updates, upgrades, or patches to the Software, or any other support services relating to the Software. Such updates and support services may be purchased separately from Compilator in accordance with the Compilator Standard Support and Maintenance policies and programs described in Compilator’ published support brochures or in other materials provided by Compilator which may be modified by Compilator from time to time. Use of such improvements, modifications, enhancements, updates, upgrades and patches received by Customer under the Compilator Standard Support and Maintenance policies and programs shall be governed by the terms and conditions contained herein.
11. TERMINATION OF THE AGREEMENT
11.1 The Term is stipulated in the main document of the License Agreement.
11.2 Compilator shall have the right to terminate the License Agreement with immediate effect if Customer is in default of any of its obligations under these T&C, including, but not limited to (i) violation of the limitation of the right of use of the Software of Article 3 and 4 or (ii) violation of the confidentiality provisions of Article 5, and Customer has failed to make good on such default within thirty (30) calendar days after having received written notice from Compilator requiring it to do so. Compilator shall further have the right to terminate the License Agreement in case of failure by Customer to execute payments according to Article 6.
11.3 Compilator shall furthermore have the right to terminate these T&C with immediate effect if Customer suspends its payments, becomes bankrupt or insolvent or enters into liquidation or otherwise can be regarded as insolvent.
11.4 Upon termination of the License Agreement at the expiry of the Term or as set out in this Article, Compilator may, at its option, and in addition to any other rights hereunder, and in addition to any other remedies available to Compilator under the law, in writing require the Customer to return or destroy all versions of the Software and the Documentation and any and all documentation relating thereto on any media and in any form in Customer’s possession. Customer shall give a written confirmation to Compilator that all material related to the Software and its operation has been returned to Compilator or destroyed within thirty (30) days’ notice of such termination.
12. EXPORT CONTROL REGULATIONS
12.1 The Software and the Documentation is subject to all applicable export, re-export, and import regulations in any applicable country, including without limitation the United States Export Administration Act, and Customer hereby agrees that neither the Software nor the Documentation is intended to be shipped, either directly or indirectly to any embargoed countries nor used for or in support of any prohibited activities. In the event Customer exports the Software or the Documentation (as otherwise permitted under these T&C) from the country in which Customer first received it, then Customer assumes the responsibility for compliance with all applicable export and re-export regulations, as the case may be.
13.1 These T&C shall not be assignable in whole or in part by either party, without the prior written approval of the other party. This notwithstanding, Compilator shall be entitled to assign these T&C in whole or in part to a company owned by or affiliated with Compilator. A transfer fee may be incurred when Customer transfers and/or assigns any of its licenses to Customer’s subsidiaries, parent, or affiliates, or to a third party. A rehost fee may be incurred when the Software is reloaded on a different machine id.
13.2 Any notice or other communication under these T&C shall be made in writing either by hand or by telefax (confirmed by airmail) or by certified or registered airmail first-class postage prepaid to the parties at the addresses stated in the Invoice (or at such other address a party may specify by written notice to the other).
13.3 These T&C contains the entire understanding between the parties on its subject matter, and annuls, replaces, and rejects any other agreements or understandings, whether written or oral, which may exist or have existed between the parties on the subject matter hereof, including any contradictory terms on buyer/Customer’s documentation. No alteration or amendment to these T&C shall be valid unless such alteration or amendment is made in writing and signed by the parties hereto.
13.4 The parties hereto are independent contractors; no agency, partnership, joint venture, employment or other joint relationship is created hereby. All references to Customer hereunder include all individuals and entities controlling, controlled by, or under common control with Customer.
13.5 The headings to the sections contained herein are for the ease of reference only and shall not affect interpretation or construction of these T&C. If any part of these T&C is invalid or unenforceable for any reason, the validity of the remaining terms will not be affected. The waiver or failure of either party to enforce any of the provisions of these T&C shall not be construed to be a waiver of the right of such party thereafter to enforce any such provisions.
13.6 Compilator reserves the right to alter these T&C at its sole discretion by giving thirty (30) days notice to Customer prior to such alteration(s). In the event that Compilator makes an alteration to these terms and conditions to the detriment of Customer and which is not acceptable to Customer, Customer can, notwithstanding what is said elsewhere, terminate the License Agreement with Compilator by giving written notice thereof to Compilator within thirty (30) days after Compilator has notified Customer by e-mail or in writing of such alteration. If Customer does not give written notice of termination of Agreement to Compilator within above stipulated time frame, Customer shall be deemed to have accepted the alteration(s).
13.7 These T&C shall be governed by and construed in accordance with, and any arbitration or court action hereunder shall apply, the laws of England and Wales. Any dispute, controversy or claim arising out of or relating to these T&C, or the breach, termination or invalidity thereof, shall be settled by English courts.
13.8 Compilator will, will the consent of the customer, use anonymous statistical data to gauge market trends with the aid of selected third party companies.
SUPPORT TERMS AND CONDITIONS
These Support Terms and Conditions (the “Support T&C”) constitute Schedule 3 to the Compilator Software License Agreement (the “License Agreement”) entered into between Compilator and Customer and forms an integral part thereof. All capitalized terms used in these Support T&C shall, unless otherwise defined, have the meanings ascribed to them in the License Agreement.
1 SUPPORT & MAINTENANCE SERVICES
1.1 Provided Services – Maintenance
1. 1.1 Maintenance service applies to the latest released version of the Software and to previously released version of the Software, which shall be covered for a six (6) month period after the release of a subsequent version.
1.2 The maintenance service comprises the following:
(i) Advice with respect to the use of the Software;
(ii) Solutions to reported Software problems and errors, which shall consist of proposed work-around solutions and corrective maintenance;
(iii) Modifications and Updates of the Software and new releases with no additional charge for Customer. Compilator reserves the option to require the payment of an additional commercially reasonable fee, subject to Customer’s acceptance thereof, if substantial additional functions or improved performance are provided. Compilator is solely responsible for the releases and their periodicity.
1. 2 Provided Services – User Support
1.2.1 A support service through e-mail and phone is at the disposal of Customer during normal office hours (09:00 and 17:30, local UK time, Monday to Friday (excluding UK statutory holidays) and is to be utilized to answer questions, to analyse problems and propose solutions specifically related to the Software and any problems or malfunctions relating thereto (“User Support”). Compilator shall only be required to provide such User Support to Customer users that have undergone Compilator’ training courses for the Software during the last twelve (12) months prior to the request for User Support.
1.2.3 A minimum of fifteen (15) minutes is charged for each use of the support service. The support hours allocated to Customer are specified in the License Agreement. Unused hours cannot be rolled forward to the next calendar year. Any support hours used by Customer over the agreed number of hours shall be invoiced by Compilator at its then current hourly consultancy fee rate.
1.2.4 The User Support service shall at all times be able to handle service calls or e-mails in English.
1.3 Provided Services – System Support
Compilator shall, in addition to providing User Support in accordance with Section 1.2, during the Term remedy any errors in the Software and support Customer with questions relating to such errors (the “System Support”). Said System Support with regards to remedying errors in the Software shall be inclusive in the support and not subject to any extra charges. For the avoidance of doubt, any support hours used by Customer for the remedy of errors in the Software shall not affect the agreed number of support hours or be subject to any extra charge and shall be considered as inclusive in the support hours allocated. Compilator’ support engineers/technicians or other support personnel in contact with Customer shall be able to handle each service contact in English.
1.4 Support provided in relation to problems not caused by the Software
If it, following a System Support service performed by Compilator hereunder, is jointly determined by the Parties that the problem to which the System Support service relates was not caused by the Software, then Customer shall pay for the System Support service performed by Compilator at the then-current time and material consultancy rates as outlined in the License Agreement, including Compilator’ reasonable expenses for providing the System Support service.
1.5 Provision of modifications and up-dates
During the Term, Compilator shall make known to Customer the availability of, and provide to Customer all modifications to the version of the Software licensed under the License Agreement, which modifications may be in the form of maintenance, error removals, up-dates or other modifications or fixes that Compilator makes generally available to commercial licensees of the Software. Such modifications, when delivered, shall become part of the Software and shall otherwise be subject to all of the terms of the License Agreement.
2. PROBLEM SOLVING SUPPORT AND RESOLUTION TIMES
2.1 Customer shall always report any Software errors to Compilator’ support organisation through the contact references indicated in the License Agreement or otherwise notified by Compilator to Customer and further in accordance with Section 2.3 below. Upon receipt of such a report, Compilator shall classify the error in accordance with the requirements described in each of Error Classes 1 to 3 set out below.
2.2 Error Class Definition: The Error Classes are defined as follows:
Error Class 1: A critical error that occurs which makes the Software inoperable or unworkable for Customer. The error results in that Customer cannot access the Software, total failure of the Software or results in unrecoverable data loss. Example: System crash.
Error Class 2: An error that causes failure on critical parts of the Software for Customer. A temporary solution / work-around may exist, but does not solve the entire problem. Example: Errors that create substantial malfunctions in the Software or renders material parts of the Software unavailable.
Error Class 3: This is a minor defect which does not affect critical parts of the Software. The defect can be remedied in the next release of the Software. Example: Smaller errors in the Software, spelling errors in the manual or a dialogue.
2.3 Response Times:
2.3.1 The error handling process shall only be valid for errors that occur in the Software as provided to Customer. When reporting an error, Customer shall provide Compilator with error log files upon in order to prove whether the error originates from the Software or is caused by other software or hardware integrated with the Software. The Error Classification of the reported error is done by Compilator’ support organisation in accordance with the Error Class Definition, as detailed above.
2.3.2 In order for Compilator to classify the reported error, Customer is required to provide Compilator with such information regarding the error as is necessary in order for Compilator to review and reconstruct the reported error. After Customer has provided such information, Compilator shall classify the error and revert back to Customer as set out in the table for Resolution Times in below Section 2.3.4.
2.3.3 In the event that the error could not be determined or diagnosed in the stipulated time as set out in the table below, Compilator shall indicate this and shall furthermore recommend actions to help in the diagnosis.
2.3.4 The response times set out in the following table shall apply to error log files received by Compilator’ support organisation. The problem reports shall only pertain to errors originating in the Software. Compilator shall use reasonable efforts to correct the errors described below in accordance with the response time below.
|Analysis||Response Time||Status Update|
|1||The error report shall be analysed within four (4) working hours, after which an analysis report shall be delivered.||
Within eight (8) working hours after analysis, an acceptable solution for
|If there is no action taken within eight (8) working hours the management of Compilator shall be informed. Customer shall be updated on the progress of the work on the problem.|
|2||The error report shall be analysed within eight (8) working hours, after which an analysis report shall be delivered.||Within three (3) working days after analysis, an acceptable solution for both Customer and Compilator, and a time plan for the implementation of such solution, shall be agreed upon.||If there is no action taken within twelve (12) working hours the management of Compilator shall be informed. Customer shall be continuously updated on the progress of the work on the problem.|
|3||The error report shall be analysed within two (2) working days, after which an analysis report shall be delivered||Within ten (10) working days after analysis, an acceptable solution for both Customer and Compilator, and a time plan for the implementation of such solution, shall be agreed upon, and the solution shall be made available to Customer in a future release at the latest.||Customer shall be updated on the progress of the work on the problem|
In the table above, the term “working hours” and “working days” shall mean between 07.00 and 17.00, local UK time, Monday to Friday (excluding UK statutory holidays).
2.4 When reporting an error, Customer shall include an error report sent by e-mail containing the following information:
a) Description of the command(s) and procedures that revealed the error;
b) Description of the hardware and software environments;
c) Specification of release and version of the Software in question;
d) A short description of the error;
e) Examples of input;
f) The expected output;
g) Any special circumstances surrounding the discovery of the errors.
3. WARRANTY AND RESPONSIBILITY
3.1 Compilator warrants that all services supplied under these Support T&C shall be carried out with skill and care by competent and qualified personnel expert in support and maintenance of the Software who are familiar with the Software and whose qualifications and experience are appropriate for the tasks to which they are allocated.
3.2 Compilator shall furthermore perform its obligations under these Support T&C in a professional manner and otherwise, as applicable, in accordance with general industry practice.
The fee and payment for the support services detailed in these Support T&C is set forth in the License Agreement.
5. OTHER PROVISIONS
These Support T&C constitute an integral part of the License Agreement and shall at all times be part of and subject to the provisions set out in the License Agreement, including its applicable law and dispute resolution provisions.