SQL Spreads licence agreement
LICENCE AGREEMENT SQL SPREADS
The licence agreement for Obnex SQL Spreads consists of two parts. The LICENCE AGREEMENT – EDEL 06 I and the appendix APPENDIX TO LICENCE AGREEMENT – EDEL 06 I.
LICENCE AGREEMENT – EDEL 06 I
Licence agreement, to be made electronically, regarding electronic transmission of software. Issued by Föreningen Svensk Programvaruindustri (SPI) (The Swedish Association of Software Industry)
1. DEFINITIONS
1.1. ”Order Form” shall mean the electronic form in which the Licencee shall state among other things the number of licences applied for.
1.2. ”Licence Agreement” shall mean this agreement regarding software licence, the Licensor’s Order Form, Product Specification, price list and terms of payment, and the appendices hereto.
1.3. ”Licence Object” shall mean the software specified in the Product Specification in machine-readable form and all related specifications, documentation and any additional materials.
1.4. ”Licensor” shall mean the provider of the licence in accordance with this Licence Agreement and which is referred to in the Order Form.
1.5. ”Licencee” shall mean the legal person who by installation of the Licence Object and the payment of fees receives one or more licences in accordance with this Licence Agreement and who is referred to in the Order Form.
1.6. “Product Specification” means the electronic documentation, accompanying the Licence Object, in which the Licence Objects content and functionality is described.
2. LICENCE GRANT
2.1. Subject to the Licencee paying the Licence fee in accordance with section 6 below, the Licencee is hereby granted a non-exclusive, non-transferable, time limited Licence to use the Licence Object on the terms and conditions set forth in this Licence Agreement.
3. SCOPE OF LICENCE
3.1. The Licence Object is only intended for the Licencees internal use and may only be used (i) by one user per licence fee paid in accordance with section 6; (ii) in the user environment described in the Product Specification; and (iii) in accordance with the other terms and conditions in the Product Specification and this Licence Agreement.
3.2. The Licencee may not itself use, copy or otherwise transfer the Licence Object, or parts thereof, unless explicitly permitted by the Licence Agreement or these General Conditions, nor may it permit a third party to do so. The Licencee may under no circumstances, by itself or by giving permission to a third party, alter, develop or make additions to the Licence Object.
3.3. The Licencee may make a few copies of the Licence Object for disaster recovery or archival purposes only.
3.4. The Licencee may not decompile or reverse engineer the Licence Object or by any other means recreate the source code of the Licence Object other than as explicitly permitted by mandatory law.
3.5. Any proprietary rights notices on the Licence Object regarding patents, copyright, trade marks or other intellectual property rights may not be altered or removed by the Licencee.
3.6. The Licencee may not sub-Licence, rent, lend or otherwise permit a third party to, directly or indirectly, with or without remuneration, dispose of or otherwise use the Licence Object.
3.7. The Licencee may only assign the rights or obligations under this Licence Agreement to a third party with the prior written consent of the Licensor.
3.8. The Licensor may, but is not under obligation to provide updates or upgrades of the Licence Object unless otherwise established in the Licence Agreement. In the event that the Licensor has provided the Licencee with updates or upgrades of the Licence Object, the terms stated in sections 8.1 and 9.2 shall apply.
4. OWNERSHIP
4.1. Ownership to and all intellectual property rights in the Licence Object, including but not limited to patents, copyrights, design rights and trade marks, shall be owned by and vested in the Licensor, or Licensor’s licensor, and nothing in this Licence Agreement shall be interpreted as a transfer of such rights from the Licensor to the Licencee. In accordance with the Licence Agreement, the Licencee is solely entitled to a limited Licence to the Licence Object as specifically granted under this Licence Agreement.
5. DELIVERY
5.1. The Licence Object is delivered by electronic transmission. Delivery by electronic transmission to the Licencee is deemed to occur when the Licence Object is made available for transmission to the Licencee by the Licensor.
5.2. The Licensor is not responsible for installation of the Licence Object. In case the Licensor assists with the installation of the Licence Object, the Licensor is entitled to compensation in accordance with the Licensor’s current price list for such services at the time of the installation.
6. PRICE AND PAYMENT
6.1. The Licencee shall pay the licence fee and other fees specified in the Licensor’s current price list for the Licence Object, for the rights provided under this Licence Agreement. One licence fee shall be paid for each licence designated and ordered in accordance with the Order Form.
6.2. Unless otherwise stated in the Licensor’s price list, the licence fee and any other fees are stated excluding value added tax, taxes and other fees, which are to be paid by the Licencee in addition to the licence fee and any other fees.
6.3. Unless otherwise stated in the Licence Agreement the licence fee and any other fees are due and payable by the Licence no later than thirty (30) days from the date of invoice. If the Customer is in delay with payment of above mentioned fees the Supplier is entitled to interest on late payments in accordance with the Swedish Interest Act.
6.4. If the Licencee is in delay for more than thirty (30) days after written reminder of payment from the Licensor, the Licensor is entitled to by written notice cancel the entire Licence Agreement and demand compensation for any damages the Licencee’s delay has caused the Licensor.
7. THE LICENCEE’S DUTY OF EXAMINATION AND RIGHT OF CANCELLATION
7.1. The Licencee is obliged to, upon delivery of the Licence Object, examine its functionality and quality.
7.2. If the Licencee finds that the Licence Object does not met the Product Specification, the Licencee is entitled to cancellation of the Licence Agreement subject to written notice of cancellation of the Licence Agreement being given to the Licensor no later than thirty (30) days after the date of delivery.
7.3. The Licensor is to immediately repay any received licence fee and any other fees paid by the Licensor under the Licence Agreement, without interest.
8. WARRANTY
8.1. The Licensor warrants that the Licence Object, for a period of twelve (12) months after the date of delivery, is in accordance with the Product Specification, provided that: (i) the Licencee has used the Licence Object only in accordance with section 3 above; (ii) the Licencee has used the Licence Object in the prescribed user environment and in accordance with the Licensor’s instructions; (iii) the Licencee has not used the Licence Object in an incorrect or negligent manner; (iv) the deviation in the Licence Object is not caused by hardware, software, data, documentation or other equipment which has not been delivered by the Licensor; (v) the Licencee has used the latest, updated and upgraded version of the Licence Object provided by the Licensor, at its own discretion; (vi) the Licence Object has not been modified or used in a way deviating from its intended purpose; or (vii) the deviation in the Licence Object more than t insignificantly affects the Licencee’s use of the Licence Object.
8.2. The Licensor’s warranty under this section 8 only applies provided that the Licencee: (i) notifies the Licensor of the defect in the Licence Object in writing within the warranty period according to Article 8.1 and within thirty (30) days from when the Licencee discovered or ought to have discovered the defect, and (ii) at its own expense sends any necessary material to the Licensor, or to a third party appointed by the Licensor, so that the defect in the Licence Object can be recreated and examined by the Licensor.
8.3. If the conditions set forth under sections 8.1-8.2 are fulfilled, the Licensor shall remedy the deviation in the Licence Object as soon is reasonably required considering the nature of the deviation and any other circumstances at hand. The Licensor shall thereby, at its own discretion, rectify the deviations in the Licence Object or replace the Licencee’s copy of the Licence Object with a new copy. The same terms and conditions shall apply for the new copy of the Licence Object.
8.4. Provided that the Licensor is under an obligation to remedy the deviation in accordance with section 8, the Licensor shall pay all expenses for the return of the Licence Object, but not for any installation.
8.5. If the deviation in the Licence Object has not been remedied by the Licensor within reasonable time, however no later than three (3) months from the Licencee’s written notice, the Licencee is entitled to, no later than three (3) months after expiry of the warranty period, destroy the Licence Object and shall at the Licensor’s request provide the Licensor with a written certification that the Licencee no longer, neither directly nor indirectly, in whole or in part, in any form, holds or disposes of the Licence Object or any copy thereof. Subject to the existence of the above circumstances the Licensor undertakes to, with deduction for the reasonable benefit that the Licence Object has provided for the Licencee, repay the licence fee and any other fees paid under the Licence Agreement, without interest.
8.6. The warranty in section 8 shall be the Licensor’s sole responsibility for defects in the Licence Object.
9. INFRINGEMENT ON INTELLECTUAL PROPERTY RIGHTS
9.1. The Licensor agrees to indemnify the Licencee for any claims by a third party based on the Licencee’s use of the Licence Object, or part thereof, within Sweden or any other countries established in the Product Specification, infringing any such third party’s intellectual property rights. The Licensor’s obligation to indemnify under section 9 is subject to the Licence Object being used in accordance with the terms and conditions set forth in this Licence Agreement.
9.2. The Licensor is under no obligation to indemnify the Licencee against third party claims of infringement based upon (i) use any other version than the latest updated and upgraded version of the Licence Object made available by the Licensor, at its own discretion, in unaltered condition, unless the infringing part also forms part of the latest updated, and upgraded version of the Licence Object; (ii) Use of the Licence object together or in combination with hardware, program software, data, documentation or other equipment that has not been provided by the Licensor, if the infringement had been avoided if such use of the Licence object together with or in combination with hardware, program software, data, documentation or other equipment not delivered by the Licensor had not taken place, or (iii) the Licence Object has been altered or used in a way deviating from its construction or from its intended purpose.
9.3. The Licensor’s obligation to indemnify under section 9 only applies provided that the Licencee (i) without undue delay notifies the Licensor in writing of the claims brought against the Licencee; (ii) allows the Licensor to control the defence and solely to decide thereof in all related settlement negotiations; and (iii) acts in accordance with the Licensor’s instructions and, at the Licencee’s own expense, cooperates with and assists the Licensor to the extent reasonably requested by the Licensor.
9.4. Subject to the conditions under sections 9.1-9.3, the Licensor shall indemnify the Licencee for such damages, liabilities, costs or expenses awarded in a final judgment or in a settlement which has been approved in writing by the Licensor.
9.5. If an infringement due to the Licencee’s use of the Licence Object is finally established, the Licensor shall, at its own discretion, (i) procure for the Licencee the right to continue using the affected Licence Object; (ii) modify the affected Licence Object so that it does not cause any infringement; (iii) replace the affected Licence Object with functionally equivalent software that does not cause any infringement; or, (iv) revoke the Licence Object and cancel the Licence Agreement and repay the Licence fee without interest with deduction of any reasonable benefit the Licencee might have had from the Licence Object.
9.6. Section 9 constitutes the entire liability of the Licensor with respect to any third party claims of infringement of intellectual property rights.
10. LIMITATION OF LIABILITY
10.1. The Licensor shall under no circumstances be liable to the Licencee for loss of profit, revenue, savings or goodwill, loss of data, the Licencee’s obligation to compensate a third party or any other indirect or consequential damage of any kind.
10.2. The Licensor’s aggregate and total liability under the Licence Agreement in respect of one or more events or series of events (whether connected or unconnected) shall be limited to a total amount equal to the lesser of (i) twenty five (25) per cent of the Licence fee payable during the term of the Licence Agreement; and (ii) five (5) times the base amount under, at any given time, the Swedish National Insurance Act (1962:381).
10.3. Section 10 shall not apply to the Licensor’s warranty in accordance with section 8 above or to the Licensor’s obligations regarding infringement of intellectual property rights in accordance with section 9 above.
11. CONFIDENTIAL INFORMATION
11.1. The Licencee is aware that the Licence Object contains trade secrets and other confidential information belonging to the Licensor. The Licencee therefore agrees not to make the Licence Object available to a third party without the Licensor’s prior written consent and to take all reasonable measures to ensure that trade secrets and any other confidential information are not divulged, disclosed or otherwise furnished, directly or indirectly, to any third party.
11.2. The Licencee’s undertaking of confidentiality in accordance with this section 11 shall not apply to confidential information which (i) is already known by the Licencee when received, (ii) is or has become public knowledge other than by breach of this confidentiality obligation; (iii) the Licencee has received in a permissible way from a third party which is under no obligation of confidentiality in relation to the Licensor; or (iv) the Licencee is obliged to make publicly available due to a court order, a decision by a public authority or as otherwise required by mandatory law.
11.3. The Licencee agrees to impose on its employees and consultants, in an appropriate manner, the above obligations regarding the use of the Licence Object in section 3 and of confidentiality in this section 11. The Licencee shall be liable in relation to the Licensor for its employees’ and consultants’ actions and for their obedience of the above stated provisions.
11.4. The Licencee’s obligations under this section 11 shall be valid during the term of this Licence Agreement and these General Conditions, and continue for a period thereafter of five (5) years after expiration or termination of the Licence Agreement, regardless of the reason therefore.
12. AUDIT
12.1. If the Licence Agreements comprises more than one (1) Licenced user, the Licencee is obliged to keep a register of all Licenced users. The Licencee shall as soon as possible after the Licensor’s request thereof, but no more than twice (2) a year, provide the Licensor with an updated copy of the register of all Licenced users.
12.2. The Licensor may appoint an independent third party to conduct an audit during the Licencee’s normal working hours to determine and verify that the Licence Object is used in compliance with the terms and conditions established in the Licence Agreement and these General Conditions. Such third party shall be allowed to commence the audit, within reasonable time after the Licensor’s written request and in no event more than fourteen (14) days after such request.
12.3. The Licencee shall cooperate with the Licensor and shall promptly grant the Licensor access to the Licencee’s premises. The audit shall be restricted in scope, manner and duration as is deemed reasonably necessary to achieve its purpose and not disrupt the Licencee’s operations. The Licencee shall be liable to promptly remedy any breaches of this Licence Agreement, including but not limited to underpayment of the Licence fee revealed during the audit. If the audit reveals an underpayment of Licence fees, in relation to the number of Licences being used, in excess of five (5) per cent of the Licencee fee due for the relevant period, the Licencee shall also be liable for the Licensor’s costs for the audit
13. TERM
13.1. The Licence Agreement enters into effect when the Licence Agreement has been accepted by the Licencee and the Licence Object has been delivered in accordance with section 5.1 above, and shall thereafter remain in effect for the term established in the Order Form.
14. TERMINATION
14.1. In addition to what is established in the Order Form, each party has the right to, by giving written notice to the other party, terminate the Agreement in advance with immediate effect: (i) if the other party has committed a material breach of this Agreement, and has not fully rectified the same within thirty (30) days after a written notice thereof; or (ii) if the other party is declared bankrupt, enters into liquidation, suspends its payments or if it otherwise can be deemed to be insolvent.
14.2. In the event of termination of the Licence Agreement in accordance with section 14.1 above, the Licencee shall not be entitled to a refund of excess Licence fees paid in advance for the time after the termination of the Licence Agreement.
14.3. In the event the Licencee has committed a material breach of the Agreement, the Licencee shall compensate the Licensor for its damages, costs, or loss, regardless whether the Licensor chooses to terminate the Agreement under this section 14 or not. If the material breach consists of the Licencee making unauthorised copies of the Licence Object, or parts thereof, the Licencee shall be obliged not only to pay the Licence fee for the unauthorised copies but also to compensate the Licensor for any damages caused due to the breach. The unauthorised copies of the Licence Object shall be destroyed in accordance with what is established in section 15.1 below.
15. DESTRUCTION OF THE LICENCE OBJECT
15.1. Upon termination of the Licence Agreement, regardless of the reason, the Licencee shall immediately and in accordance with the Licensor’s instructions destroy and erase the Licence Object. The Licencee shall at the same time certify in writing to the Licensor that such destruction has occurred and that the Licencee neither directly nor indirectly, in whole or in part, holds or disposes of the Licence Object or any copy thereof.
16. MISCELLANEOUS
16.1. In the case of any inconsistency between the Licence Agreement and the Order Form, the Product Specification and/or the Licensor’s price list and terms of payment the later shall prevail.
16.2. The Licence Agreement and these General Conditions form the parties’ entire understanding of all the questions in the Licence Agreement. All written or oral representations or warranties prior to the Licence Agreement are replaced by this Licence Agreement.
16.3. Any amendment or modification to the Licence Agreement must be issued in writing and signed by both parties in order to be binding.
16.4. The Licence Agreement may not be assigned to a third party without the other party’s prior written approval. With exception from the above, the Licensor is entitled to assign the Licence Agreement to a third party in connection with transfer of the Licensor’s business or a part thereof.
17. DISPUTES AND GOVERNING LAW
17.1. The Licence Agreement and these General Conditions shall be governed by and construed in accordance with Swedish law with exclusion of its conflict of law rules.
17.2. Any dispute, controversy or claim arising out of this Agreement shall be settled by the Swedish Court where the Licensor has its legal domicile.
APPENDIX TO LICENCE AGREEMENT – EDEL 06 I
1. GENERAL
1.1. The provisions of this Appendix supersede any provision of the Licence Agreement, the Licensor’s Order Form, Product Specification, price list and terms of payment.
2. TERM
2.1. Unless otherwise expressly agreed between the parties the Licence Agreement shall stay in force for one year. In this case either party may terminate the Licence Agreement by written notice of termination made no later than three months before the end of each current term. Unless terminated the Licence Agreement shall be automatically pro-longed for consecutive periods of one year, still with three months notice of termination.
3. SUPPORT AND MAINTENANCE AGREEMENT
3.1. Support and maintenance can be purchased together with the Licence Object in the Order Form.
3.2. By purchasing the Support and Maintenance package, the Licensee will have the right to download and install upgrades of the Licence Object free of charge for the period of one year after the date of purchase of the Support and Maintenance package. By purchasing the Support and Maintenance package, the Licensee will also have the right to ask questions through email regarding the use of the Licence Object, free of charge for the period of one year after the date of purchase of the Support and Maintenance package. Email address for contacting support is published through Obnex web page. Even though Obnex engineers will make reasonable effort to resolve the issue, Obnex does not guarantee that all issues will be resolved. The Licensee needs to supply Obnex with detailed information so that Obnex engineers can recreate the problem at the local office. Obnex guarantees response to support requests within two business days according to the Swedish official calendar.
4. TRIAL LICENCE
4.1. The trial Licence will grant you a time-limited Licence of the Licence Object for the purpose of evaluating the Licence Object. The trial Licence is limited to 14 continuous calendar days. Trial Licences are under no circumstances allowed to be used in a production environment.
4.2. When using the Trial License, Obnex may collect statistical information from your use of the Licence Object. Statistical information is anonymous and only contains statistical information about the usage of the Licence Object. For commercial licenses no statistical information is collected.
5. DEVIATIONS IN THE LICENCE OBJECT
5.1. Under the Licence Agreement section 8.3 Licensor’s may, at Licensor’s option, remedy a deviation in the Licence Object by either
a) correcting errors or
b) providing work-around solutions, or
c) replacing the Licence Object with functionally equivalent software.
6. BACKUP
6.1. The Licensee is obliged to backup his data on intervals that are reasonable and typical for the business of the Licensee. Unless otherwise proven reasonable by Licensee backup shall be made at least on a daily basis.
6.2. Based upon the Licensee’s obligation to backup data Licensor does not assume any liability in the case of loss of data.
7. INFRINGEMENT OF RIGHTS OF THIRD PARTIES
7.1. The Licensee shall to a reasonable extent examine whether the Licence Object is encumbered by or infringes upon a right held by a third party.
7.2. The Licensor agrees to indemnify the Licencee for claims by a third party based on the Licencee’s use of the Licence Object only if
a) it can be established that the Licensor have, or should have, actual knowledge of a potential infringement of such third party’s right at the commencement of the Licence Agreement and
b) it can be established that the Licensee at any time (before or after the commencement of the Licence Agreement) has no, and should not have any, knowledge of such potential infringement.
8. DISCLOSURE
8.1. The Licensee agrees that Obnex may disclose the fact that the Licensee is a paying customer of Obnex. In relation thereto, the Licensee agrees that Obnex may use the Licensee’s name and logo to identify the Licensee as a customer of Obnex on the Product web site, and as part of a general list of Obnex’s customers for use and reference in Obnex’s promotional and marketing literature.
9. FORCE MAJEURE
9.1. Licensor shall not be liable to the Licensee for any expenses or consequential losses whatever suffered by the Licensee if Licensor is prevented from fulfilling its obligations under the Licence Agreement by reason of any supervening event beyond Licensor’s control, including but not by way of limitation: war, terrorism, revolution, riot, public disorder, national emergency, flood, earthquake, contaminations by radio-activity or chemical substances, strike or lockout, governmental acts or orders or restrictions, lack of energy, failure of suppliers, attacks by hackers or invasion by or activation of computer viruses, major disruption due to technical adjustments by telecommunications departments; or severe shortage in telecommunications or other acts or events of a similar nature or force.
10. SEVERABILITY
10.1. Should a provision in the Licence Agreement (as defined in the Licence Agreement), wholly or partly, be found to be unlawful, invalid or unenforceable, the provision or part of the provision in question shall be adjusted, alternatively be disregarded, but remaining provisions of the Licence Agreement shall remain effective between the parties.
11. APPLICABLE LAW AND DISPUTES
11.1. The Licence Agreement (as defined in the Licence Agreement) shall in all respect be governed by and construed in accordance with the substantive laws of Sweden.
11.2. Any dispute, controversy or claim arising out of or in connection with the Licence Agreement, or the breach, termination or invalidity thereof, shall, be settled by arbitration in accordance with the arbitration and mediation rules of the West Sweden Chamber of Commerce and Industry in Gothenburg. The arbitration proceedings shall take place in Gothenburg, Sweden. The language of the proceedings, documentation and the award will be in Swedish.