This is an example for Avantra Term & conditions. Final terms will be negotiated and agreed upon between the parties.
Background
1.1 In this Agreement, capitalised terms have the following meanings unless the context otherwise requires:
“Business Use” means use of the Software and/or the Support Services for the Licensee’s internal business purposes;
“Confidential Information” means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information;
“Effective Date” means the date specified at the end of this Agreement;
“Licence Fees” means the licence fees set forth in the relevant Order that Licensee will pay to Avantra in accordance with the terms of this Agreement;
“Malicious Code” means, without limitation, any automatic restraint, viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs that interfere with the provision of the Software;
“Order” means a signed order for Software and Support Services (as applicable) requested by Licensee, a template of which is set out in Schedule 1;
“Software” means the executable, object code version of the particular Avantra software and any related updates or releases specified in an Order;
“Support Services” means technical support for the Software of the type as specified in clause 9, which may be updated by Avantra from time to time;
“Support Services Fees” means the fees for the Support Services set forth in the relevant Order;
“User(s)” means those individuals who use the Software for the Business Use in the territory specified in the Order. Users may include but are not limited to Licensee’s employees, consultants, contractors and agents;
“Website” means www.Avantra-xandria.com and any other domain names designated by Avantra from time to time; and
“Working Day” or “Office Hours” means 9 AM to 5 PM European time Monday to Friday excluding European public holidays, unless specified otherwise in the Agreement
2. Applicability of Agreement
This Agreement is made between the parties effective as of the Effective Date (“Agreement”). Each executed Order shall be deemed a separate agreement to which the terms and conditions of this Agreement shall apply as if they were set out in full in each Order.
3. Rights Granted
3.1. Subject to Licensee’s compliance with the terms and conditions of this Agreement, the program documentation and the relevant Order, including, without limitation, the timely payment of all fees and other charges payable to Avantra under this Agreement, Avantra hereby grants to the Licensee a non-exclusive, non-transferable, non-sublicensable, non-assignable, non-perpetual revocable term licence to use the Software and the Support Services solely for its Business Use on the number of instances (SAP instance, Server, Database) and for the duration which Licensee has paid for as set forth in the relevant Order.
3.2. The Software may not be sublicensed to any third parties, nor may it or any derived knowledge from the use of the Software be used for the development of competitive products.
3.3. Licensee acknowledges that the Software will not operate without a licence key.
3.4. Avantra reserves all rights not expressly granted herein.
4. Restrictions on Use
4.1. Licensee may not:
4.2. If at any time the Licensee contravenes any of the prohibitions listed in this clause 4, Avantra may treat such contravention as an irremediable breach entitling Avantra to terminate this agreement and any relevant Order.
5. Licensee’s Obligations and Acknowledgements
5.1. Licensee shall permit Avantra to inspect and have access to any premises at or on which the Software is being kept or used, and have access to any records kept in connection with this Agreement, for the purpose of ensuring Licensee is complying with the terms of this Agreement, provided Avantra shall provide reasonable notice of such inspection.
5.2. At Avantra’s request, Licensee shall promptly furnish Avantra with written certification verifying that the Software is being used in accordance with this Agreement, including for Business Use in the territory specified in the Order. Licensee shall keep a complete and accurate record of its Users and the equipment on which the Software is installed and provide such record to Avantra on request from time to time. Licensee shall notify Avantra as soon as it becomes aware of any unauthorised use of the Software.
5.3. Licensee acknowledges that: (i) the Software has been designed for SAP hosting and outsourcing services and SAP system management generally and not specifically for the Licensee’s particular requirements; and (ii) Licensee’s ordering of the Software hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Avantra regarding existing or future functionality or features of the Software.
6. Delivery, Installation and Acceptance
The Software may be downloaded from the Website at any time after the Effective Date and payment of the initial Licence Fees. Once the Licensee has downloaded the Software the Licensee can install the Software locally on site.
Licensee has seven (7) days following the delivery date to test whether the Software conforms in all material respects as detailed by Avantra. If Licensee believes that the Software fails to conform in any material respect to the criteria detailed by Avantra, Licensee must provide written notice to Avantra detailing the non-compliance, and Avantra will either correct the non-conformities or provide an acceptable workaround in a timely manner. If Licensee does not send written notice within seven (7) days following the delivery date the Software will be deemed accepted.
7.1. Avantra warrants that: (i) the Software licensed to Licensee will operate in all material respects as described in the applicable program documentation, under normal use and circumstances for one year after delivery; and (ii) it will use reasonable technical means to ensure that the Software does not contain any Malicious Code or other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software. Licensee must notify Avantra of any program warranty deficiency within one year after delivery.
7.2. Avantra warrants that the Support Services will be provided in a professional manner consistent with industry standards.
7.3. Avantra will, at its own expense and as its sole discretion and Licensee`s exclusive remedy for any breach of these warranties do one of the following: (i) use commercially reasonable efforts to correct any reproducible error in the Software reported to Avantra by Licensee in writing during the Software warranty period; (ii) replace the Software; or (iii) terminate the licence immediately by notice in writing to Licensee and refund any portion of the Licence Fees paid by Licensee prior to date of termination (less a reasonable sum in respect of Licensee’s use of the Software up to the termination date). Any such error correction or replacement provided to Licensee will not extend the original warranty period.
7.4. The express warranties are in lieu of all other warranties, express, implied, or statutory regarding the Software, any related services (including the Support Services) and related documentation, and Avantra specifically disclaims all warranties of merchantability fitness for a particular purpose.
7.5. The express warranties do not apply to damage resulting from misuse, abuse or computer or electrical malfunction, or if the Software has been installed, used or operated other than in accordance with instructions furnished by Avantra or the program documentation. Avantra does not warrant that Licensee’s use of Software will be error-free, uninterrupted, virus-free, or secure. Licensee acknowledges that it relies on no warranties other than the express warranties in this Agreement.
7.6. Licensee represents and warrants that: (i) it has not falsely identified itself nor provided any false information to gain access to the Software; (ii) its billing information is correct; and (iii) it will not infringe the intellectual property or privacy rights of any third parties.
8. Limitation of Liabilities
8.1. Nothing in this Agreement shall limit or exclude either party’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.
8.2. In all other cases Avantra’s liability to Licensee under this Agreement, for all losses, costs, expenses and damages, whether arising in contract, by reason of negligence or otherwise, will not in the aggregate exceed a sum equal to the aggregate Licence Fees received by Avantra in the 12 month period immediately preceding the event giving rise to such liability. In no event (to the extent not prohibited by law) will Avantra be liable for: (i) loss resulting from any defect or deficiency which Avantra remedies within a reasonable time; or (ii) any indirect, special, incidental or consequential costs, losses, damages or expenses; or (iii) loss of business, profits, revenue, goodwill or anticipated savings; or (iv) loss or corruption of data; or (v) any sums paid by Licensee to a third party; or (iii) loss which could have been avoided by Licensee following Avantra’s reasonable advice and instructions.
9.1. Avantra (and its licensors, where applicable) shall own all right, title and interest to the Software (including all intellectual property rights contained therein) and any other materials created or developed by Avantra pursuant to this Agreement, including any and all enhancements, modifications, extensions and derivative works thereof. This Agreement does not convey to Licensee any rights of ownership in or related to the Software or to any other intellectual property rights owned or used by Avantra hereunder. The Avantra name, the Avantra logo, and the product names associated with the Software are trademarks of Avantra, and no right or licence is granted to use them.
9.2. [Avantra shall indemnify the Licensee against any claim that the normal use of the Software in accordance with this Agreement and the program documentation infringes the [European] copyright, patent or trademark rights of any third party provided that: (i) Avantra is given immediate and complete control of such claim; (ii) the Licensee does not prejudice Avantra’s defence of such claim nor make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of Avantra; (iii) the Licensee at Avantra’s expense gives Avantra all reasonable assistance with such claim; (iv) such claim does not arise from an intentional tortious act or the negligence of Licensee or breach of this Agreement; (v) such claim is not based upon the use of the Software in an application or environment for which the Software was not designed or contemplated; and (vi) such claim does not arise as a result of modifications and/or improvements of the Software introduced or made by Licensee.]
9.3. Avantra shall at its option have the right to change all or any part of the Software or the Support Services in order to avoid any infringement.
9.4. Licensee shall ensure it has all the rights and permissions necessary to use the Software in accordance with this Agreement, including the appropriate licences for the use of SAP software in conjunction with the Software.
9.5. This clause 10 states the entire liability of Avantra to the Licensee in respect of the infringement of the copyright, patent or trademark rights of any third party.
10. Software Maintenance / Updates
10.1. Avantra issues periodic updates (error correction; small modifications) and new releases (new versions) of its Software.
10.2. With the execution and payment of the mandatory support service by Licensee, Avantra provides updates and grants the right to download all subsequent new versions of the program made generally available during the contracted period.
11. License and Maintenance
11.1. Licensee will pay Avantra the Licence Fees and the Support Services Fees set forth in the relevant Order.
11.2. The Software will be licensed according to the total number of:
11.3. The Licence Fees exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges, and Licensee will be responsible for payment of all such taxes, fees, duties, and charges, and any related penalties and interest, arising from the payment of the Licence Fees or the delivery or licence of the Software. Licensee will defend, indemnify, and hold harmless Avantra from all claims and liability arising from Licensees failure to report or pay any such taxes, fees, duties or charges.
12. Term and Termination
12.1. The term of this Agreement will begin on the Effective Date and will run until terminated:
12.2. An Order starts on the effective date of the Order and will continue for the Licence Term specified therein unless terminated:
12.3. Any termination hereunder shall be without prejudice to any other rights or remedies either party may be entitled to hereunder or at law or in equity and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. Termination of the Agreement shall not affect any existing Orders which shall continue in full force and effect in accordance with its terms.
13.1. Neither party shall disclose to any person or entity any information about the Software or other Confidential Information that is furnished to or otherwise becomes known to the other. Each party’s obligation to maintain the confidentiality of such information shall not apply to information which: (a) was known to the receiving party before receiving such information; (b) is in the public domain; or (c) is received by the receiving party from a third party who was legally entitled to make an unrestricted disclosure.
13.2. Each party agrees that it may only use any Confidential Information that it receives from the Disclosing Party for the purpose of performing its obligations or exercising its rights under this Agreement (“Permitted Purpose”), and that it may only disclose such Confidential Information to its officers, employees, contractors and agents to the extent they need to know and use it for the Permitted Purpose. Each party shall ensure that its officers, employees, contractors and agents are bound by equivalent obligations in respect of the Confidential Information to those set out hereunder and shall use its best efforts to ensure that they abide by such obligations.
13.3. If either party is compelled by law, regulation or a court of competent jurisdiction to disclose any Confidential Information belonging to the other party, to the extent permitted by law, it will promptly notify the other party so it may seek a protective order or other appropriate remedy, and cooperate, at the other party’s expense, in seeking such order or other remedy. If disclosure is ultimately required, the party will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment, and continue to treat such Confidential Information in accordance with its obligations under this clause.
13.4. Each party acknowledges that the other would be irreparably harmed if the other party’s obligations hereunder are not specifically enforced and that neither party would have an adequate remedy at law in the event of an actual or threatened violation hereof. Therefore, each party agrees that the other shall be entitled to seek an injunction or any appropriate decree of specific performance for any actual or threatened violations by the other party or its employees, agents, representatives or customers, without the necessity of showing actual damages or that monetary damages would not afford an adequate remedy.
13.5. Avantra will maintain organizational and technical measures for the protection, security, confidentiality and integrity of any personal data provided by or on behalf of Licensee and processed by Avantra pursuant to this Agreement. The terms of the data processing addendum at www.Avantra-xandria.com shall apply to such processing, and are hereby incorporated by reference.
13.6. This clause 13 shall survive termination howsoever arising.
14. Assignment
Licensee may not assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this Agreement without Avantra’s prior written consent. Avantra shall be entitled to assign transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations hereunder.
15. Variation
No variation of this Agreement or an Order shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16. Third Parties
No one other than a party to this Agreement, shall have any right to enforce any of its terms.
17. Jurisdiction
This Agreement is governed by the substantive and procedural laws of Switzerland and Licensee agrees to submit to the exclusive jurisdiction of, and venue in, the courts in Switzerland. The UN Convention on Contracts for the International Sale of Goods (C.I.S.G) is not applicable.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
In the event any provision of this Licence Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain valid and enforceable according to its terms.
19. Force Majeure
Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party (including Acts of God, war or other armed conflict, and terrorist attacks, but excluding strikes, lockouts or any industrial action). The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either party may terminate this Agreement by written notice to the other party.
20. Counterparts
This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
21. No Agency or Partnership
Nothing in this Agreement shall constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this agreement. Neither party shall have, nor represent that it has any authority to make commitments on the other party’s behalf.
22. Export Controls
Export and use of the Software may be subject to export control laws and regulations, including prohibition. By installing, activating or using this Software, Licensee confirms that it will not export or re-export the Software without all required foreign government licenses. Licensee will defend, indemnify, and hold harmless Avantra from and against all fines, penalties, liabilities, damages, costs and expenses incurred as a result of any violation of such laws or regulations by Licensee or any of its agents or employees.
