Avantra AIR End User License Agreement

General

This End User Licence Agreement (“EULA”) is entered into between you (You”) and us (“Avantra”) and shall come into force at such time as you purchase Avantra AIR and govern Your use of it. If you download, install or use Avantra AIR, you accept and agree to be bound by this EULA. If you are an individual acting on behalf of an entity, you represent and warrant that you have the authority to enter into this EULA on behalf of that entity. If you do not have such authority, you are solely responsible for your use of Avantra AIR. If you do not accept the terms of this EULA, then you are not permitted to install, access, download or otherwise use Avantra AIR.

1. EULA Definitions

In this EULA, capitalised terms have the following meanings unless the context otherwise requires:

“Avantra AIR” means the then-current version of Avantra AIR; “Business Use” means use of Avantra AIR and/or the Support Services for Your business purposes only;

“Client Data” means the information extracted from your systems by Avantra AIR in order to generate Reports;

“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 effective date specified in the Order;

“Insight Analysis” means the proprietary methodology used by Avantra AIR to generate Reports from Client Data;

“Licence Fees” means the licence fees set forth in the Order that You will pay for the right to access Avantra AIR and Support Services in accordance with the terms of this EULA;

“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 Avantra AIR;

“Order” means a signed order for Software and Support Services (as applicable) requested by You;

“Report” means information generated by Avantra AIR as a result of Insight Analysis and reported to You via Avantra AIR;

“Support Hours” “Working Day” or “Office Hours” means 08:00 to 17:00, Monday to Friday excluding public holidays in the time zone defined in the Order;

“Support Services” means technical support for Avantra AIR of the type as specified in the Order, which may be updated by Avantra from time to time;

“Support Services Fees” means the fees for the Support Services (if applicable) set forth in the Order;

“User(s)” means Your employees, consultants, contractors, agents and customers who use Avantra AIR for the Business Use in the territory specified in the Order; and

“Website” means www.avantra.com and any other domain names designated by Avantra from time to time.

2. Rights Granted

2.1. Subject to Your compliance with the terms of this EULA and the program documentation, Avantra hereby grants to You a non-exclusive, non-transferable, non-sublicensable licence to use Avantra AIR and the Support Services solely for Business Use and subject to the other restrictions (including any Report restrictions) detailed in the Order. For the avoidance of doubt, such licence includes the right for You to use Avantra AIR and Support Services for the provision of services to Your customers and You acknowledge and agree that You shall be held responsible and liable for the acts and/or omissions of Your customers as if they were Your own.

2.2. You acknowledge that Avantra AIR will not operate without a licence key and username/password access controls. You will not distribute or provide access to such key or username/password access controls to a third party, unless that third party is a permitted third party in the Order. You agree that Avantra is not responsible for the unauthorized distribution or sharing of Your licence keys or username/password access controls.

3. Restrictions on Use

You may not:

(a)  remove or modify any program markings or any notice of Avantra proprietary rights;

(b)  make any materials resulting from the operation or usage of Avantra AIR available in any manner to any third party for use in the third party’s business operations;

(c)  modify, adapt, alter, translate, or create derivative works from Avantra AIR or any Report;

(d)  sublicense (other than to Your customers for Business Use in accordance with clause 2.1), distribute, sell, lease, rent, loan, or otherwise transfer Avantra AIR or any Report to any third party;

(e)  reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for Avantra AIR except as permitted by law (You acknowledges that the information provided on our website provides You with necessary requirements to achieve any integration with software or systems used by You);

(f)   use Avantra AIR to store or transmit infringing, obscene, libelous, Malicious Code or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights;

(g)  use Avantra AIR to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;

(h)  copy, modify, transmit, distribute, frame or mirror Avantra AIR in any form or media or by any means;

(i)   interfere with, damage or disrupt the integrity or performance of Avantra AIR;

(j)   attempt to gain or assist third parties to gain unauthorised access to Avantra AIR or the Support Services or their related systems or networks, or

(k)  access Avantra AIR or the Support Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

(l)   complement server licences with custom checks to monitor Avantra native monitored objects types like SAP Systems, SAP Instances, Databases, SAP Business Objects or Cloud Services. Avantra's licences for Servers only give access to Server specific features. Infringement of this restriction will lead to charges based on the then current prices for SAP System Object prices, for the period of time Servers' usage contravened this stipulation. These extra charges will be invoiced monthly until the licence infringement ceases.

4.  Your Obligations and Acknowledgements

4.1. You shall permit Avantra to inspect and have access to any premises at or on which Avantra AIR is being used and have access to any records kept in connection with this EULA, for the purpose of ensuring You are complying with the terms of this EULA, provided that Avantra shall provide reasonable notice of such inspection.

4.2. At Avantra’s request, You shall promptly furnish Avantra with written certification verifying that Avantra AIR is being used in accordance with this EULA, in the territory specified in the Order. You shall notify Avantra as soon as You become aware of any unauthorised use of Avantra AIR.

4.3. If You are using Avantra AIR as a beta service (as identified in the Order Form), you acknowledge that the service is provided “as is” and that it may be suspended, changed or withdrawn by Avantra at any time without notice.

4.4. Avantra AIR is only authorized to provide SAP-specific support information exclusively to a customer holding a valid support contract with SAP. Reports from Avantra AIR will contain SAP-specific information only for customer with a valid SAP contract.

5. Warranties

5.1. Avantra warrants that: (i) Avantra AIR will operate in all material respects as described on our website, under normal use and circumstances; and (ii) it will use reasonable technical means to ensure that Avantra AIR does not contain any Malicious Code or other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software.

5.2. Avantra will, at its own expense and as its sole discretion and Your exclusive remedy for any breach of these warranties, do one of the following: (i) use commercially reasonable efforts to correct any reproducible error in Avantra AIR reported to Avantra by You in writing Avantra AIR; (ii) replace Avantra AIR; or (iii) terminate the licence immediately by notice in writing to You and refund any portion of the Licence Fees paid by You prior to the date of termination (less a reasonable sum in respect of Your use of Avantra AIR up to the termination date).

5.3. The express warranties are in lieu of all other warranties, express, implied, or statutory regarding Avantra AIR, the Reports, any related services (including the Support Services) and related documentation, and Avantra specifically disclaims all warranties of merchantability and fitness for a particular purpose.

5.4. The express warranties do not apply to damage resulting from misuse, abuse or computer or electrical malfunction, or if Avantra AIR has been installed, used or operated other than in accordance with instructions furnished by Avantra or Avantra AIR documentation. Avantra does not warrant that Your use of Avantra AIR will be error-free, uninterrupted, virus-free, or secure. You acknowledge that You rely on no warranties other than the express warranties in this EULA.

5.5. You warrant that you have the right to allow Avantra to use the Client Data for the purposes of the provision of the Avantra AIR service.

6. Limitations and Liabilities

Avantra’s liability to You under this EULA, 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 total Licence Fees received by Avantra from You 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 You to a third party; or (vi) loss which could have been avoided by You following Avantra’s reasonable advice and instructions.

7. Support Services

7.1. Avantra shall provide the Support Services during the Licence Term subject to the payment by You of the Licence Fees and Support Service Fees (if applicable) as detailed in the Order. Support Services shall only be provided during Support Hours. Avantra does not guarantee that it will be able to resolve all questions or errors to Avantra AIR.

7.2. Support Services are contingent on Your compliance with the following additional obligations: (i) Your personnel shall be trained in use of the Support Services; (ii) You shall provide Avantra with sufficient documentation, data, details and assistance with respect to any reported errors; and (iii) You shall assist Avantra to diagnose and correct reported errors by providing: (a) all relevant documentation and records, including sample output and other diagnostic information; (b) interaction with personnel who have authority to implement remedial actions as instructed by Avantra; and (c) access to Your live production environment in which Avantra AIR is used to the extent required to provide the related Support Services. You acknowledge that failure to provide such assistance will affect Avantra’s ability to provide Support Services.

7.3. Avantra shall have no obligation to provide Support Services in connection with any error, questions or problems that arise from: (i) use of Avantra AIR in a manner other than described in this EULA; (ii) the negligence or intentional misconduct of any User; (iii) failure by You to implement reasonable recommendations in respect of or solutions to errors previously advised by Avantra; or (iv) issues caused by third party software or this party hardware.

7.4. Provision of Support Services as described in this clause is Avantra’s sole obligation, and Your sole remedy, with respect to the support of Avantra AIR. Avantra shall have no other liability or obligation to You with respect to any errors or other real or perceived problems with Avantra AIR.

8. Intellectual Property Ownership and Indemnity

8.1. You shall own all right, title and interest in the Client Data and, save as set out below, the Reports.

8.2. You grant Avantra the right to collect, transfer and otherwise process the Client Data as necessary or advisable for the purposes of the performance and provision of the Avantra AIR service.

8.3. You grant Avantra the right to use the Reports: (a) for the purposes of the performance and provision of Avantra AIR, and (b) for the development or improvement of Avantra AIR, but only on the basis that such Reports are not passed by Avantra to any third party.

8.4. Avantra (and its licensors, where applicable) shall own all right, title and interest to Avantra AIR and the Insight Analysis (including all intellectual property rights contained therein) and any other materials (other than Reports) created or developed by Avantra pursuant to this EULA, including any and all enhancements, modifications, extensions and derivative works thereof. Avantra shall also own all right, title and interest in any developments, learnings or other improvements to or in Avantra AIR (whether contained in a Report or otherwise) as a result of Your use of it. This EULA does not convey to You any rights of ownership in or related to Avantra AIR or to any other intellectual property rights owned or used by Avantra hereunder. The Avantra name and logo as the product name associated with Avantra AIR are trade marks of Syslink Xandria Ltd (and its licensors, where applicable), and no right or licence is granted to use them.

8.5. Subject to clause 8.1 and 8.2, Avantra shall indemnify You against any claim that the normal use of Avantra AIR in accordance with this EULA and the documentation on our website infringes the UK copyright, patent or trademark rights of any third party provided that: (i) Avantra is given immediate and complete control of such claim; (ii) You 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) You at Avantra’s expense give Avantra all reasonable assistance with such claim; (iv) such claim does not arise from an intentional tortious act or Your negligence or breach of this EULA; (v) such claim is not based upon the use of Avantra AIR in an application or environment for which Avantra AIR was not designed (vi) such claim does not arise from open source components or third party materials or combination, operation or use of Avantra AIR in or with any technology or service not provided by Avantra (vii) such claim does not arise as a result of modifications and/or improvements of Avantra AIR introduced or made by You.

8.6. Avantra shall at its option have the right to change all or any part of Avantra AIR or the Support Services in order to avoid any infringement.

8.7. You shall ensure You have all the rights and permissions necessary to use Avantra AIR in accordance with this EULA, including the appropriate licences for the use of SAP software in conjunction with Avantra AIR.

8.8. This clause states the entire liability of Avantra to You in respect of the infringement of the copyright, patent or trade mark rights or intellectual property rights of any third party.

8.9. You will indemnify, defend and hold harmless Avantra and its affiliates and their respective officers, directors, employees, agents, subcontractors, successors and assigns from and against any and all losses, costs and expenses (including reasonable attorneys’ fees) related to any third party claim arising from or related to (i) facts that, if true, would constitute Your breach of any term of this EULA; (ii) Your infringement or alleged infringement of the intellectual property rights of any party; (iii) Your or Your Users’ gross negligence, recklessness or willful misconduct; or (iv) Your or Your Users’ use of Avantra AIR or any Report outside of the scope of the licenses granted herein.

8.10. Reports may include information extracted from the SAP support portal; SAP retains ownership of the intellectual property rights in such information, and it is provided to you via Avantra AIR as part of your access to the SAP support portal.

9. Terms and Conditions

 9.1. This EULA may be terminated by Avantra if You (a) fail to pay any Licence Fees when due, or (b) otherwise commit a breach of any term of this EULA or any other EULA which you have in place with Avantra which breach is irremediable or (if such breach is remediable) fail to remedy that breach after being notified in writing to do so.

9.2. Upon termination or expiry of this EULA, all rights, licenses and authorisations granted to You hereunder will immediately terminate and You will: (i) immediately cease all use of and other activities with respect to Avantra AIR (and related documentation); (ii) within 5 business days deliver to Avantra, or at Avantra’s written request destroy, and permanently erase from all devices and systems You directly or indirectly controls, Avantra’s Confidential Information; (iii) notify all of Your relevant personnel that they will no longer have access to Avantra AIR and will not receive any further Reports; and (vi) certify to Avantra that it has complied with these requirements.

10. Confidentiality and Data Protection

10.1.  You shall not disclose to any person or entity any information about Avantra AIR, any Reports or any of Our other Confidential Information without our prior written consent. We shall not disclose to any person or entity any of Your Confidential Information without Your prior written consent. 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.

10.2.  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 EULA (“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.

10.3. 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.

10.4. The Annex sets out the details of the data collection and processing undertaken by Avantra AIR.

11. No Assignment

You will not assign or otherwise transfer this EULA, or any of your rights and obligations under this EULA, without our prior written consent. Any assignment or transfer in violation of this clause 11 will be void. Subject to the foregoing, this EULA will be binding upon, and inure to the benefit of, the parties and their respective permitted successors and assigns.

12. Jurisdiction

This EULA and any disputes in relation to it are governed by the substantive and procedural laws of England and You agree to submit to the exclusive jurisdiction of, and venue in, the courts in England. The UN Convention on Contracts for the International Sale of Goods (C.I.S.G) is not applicable.

13. Export Controls

Export and use of Avantra AIR may be subject to export control laws and regulations, including prohibition. By using this Software, You confirm that You will not export or re-export Avantra AIR without all required foreign government licenses. You 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 You or any of Your agents or employees.

14. The Agreement

a. This EULA and all documents referred to in it, constitute the entire Agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings and communication, whether written or oral. In the event of a conflict between the terms of this Agreement and the terms of any purchase orders (or similar documents) issued by You (or any of Your affiliates) the terms of this Agreement govern to the extent of the conflict.

b. Nothing in the 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 the Agreement. Neither party shall have, nor represent that it has any authority to make commitments on the other party’s behalf.

 

Version 1.1 - September, 2024

 

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