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This Support and Maintenance Agreement ("Agreement”) is effective 8 June 2021 (“Effective Date”),
| BETWEEN: | Eleven Dynamics AG (“Company"), a company organized and existing under the laws of Switzerland, with its head office located at: |
Hauptbahnhofstrasse 7,
4500 Solothurn,
Schweiz – CH
| AND: | [LICENSEE NAME] ("Licensee”) [COMPLETE ADDRESS] |
WHEREAS
Company is a producer and supplier of computer software for automating metrology processes, commercialized under the tradename Nexos 4.0;
WHEREAS
Company is the lawful owner of and/or has the right to license the proprietary computer programs, as described in this Agreement.
WHEREAS
Licensee wishes to license use of the compiled code of the Licensed Products, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE COMPANY AND THE LICENSEE (“PARTIES”) HEREBY REPRESENT, WARRANT, AND AGREE AS FOLLOWS:
The preamble is part of the present Agreement.
shall mean Software products composed of Company’s computer programs in machine-readable compiled code, intermediate code or interpreted form, and associated program updates and upgrades, and related items such as software keys.
shall mean "online" or electronic user manuals and specifications, and any other media, printed materials, and "online" or electronic documentation, provided by Company to the Licensee for use with Licensed Software.
shall mean the Licensed Software and the Licensed Materials commercialized under the tradenames Nexos 4.0.
shall mean any reproducible functional defect in the Licensed Software resulting in the Licensed Software not conforming with the Licensed Materials.
shall mean the use of Licensed Software on the Licensee's computing devices.
shall mean the directors, officers, and employees of the Licensee or any other person using the Licensed Products.
shall mean object code that is statically or dynamically linked to the Licensed Software and that contains, or is derived from, any computer source code licensed pursuant to a license that is identified as an open-source license by the Open-Source Initiative (opensource.org) or other similar licensing or distribution models for computer code offered free of charge.
shall mean object code that is statically or dynamically linked to the Licensed Software, proprietary to Company or licensed by it from Third Party vendors.
means any weekday (Monday to Friday) other than a bank or public holiday in Licensee’s or Company’s country and county; Middle East and GCC upon request.
means the hours of [09:00 to 17:00 GMT/BST] on a Business Day; Middle East and GCC upon request.
means an event, or a series of related events, that is outside the reasonable control of the party affected (including but not limited to failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, global pandemics, quarantine, terrorist attacks and wars);
means a hotfix, patch, or minor version update to the Software; and
means a major version upgrade of the Software.
means the period starting on the Effective Date, until which this agreement is in force;
This Agreement shall come into force upon the Effective Date and end upon the expiration of the Maintenance Period thereafter.
If the Licensee holds a subscription license the Effective Date is the date the Licensee obtained the subscription license, and the Maintenance Period is defined to be the same as the Subscription Period defined in the EULA. Upon expiration of the Maintenance Period the Maintenance will automatically be renewed, as long as the Licensee is holder of a valid subscription License according to the EULA. Each new Maintenance Period will be subject to the same terms and conditions set forth in this Agreement, which may be updated by Company from time to time.
If the Licensee holds a perpetual license the Effective Date is the Date when the Licensee signs this agreement. The Maintenance Period is the period defined in Company’s Quote, the EULA, or an Exhibit (A “Support Period”)..
If the Licensee is holder of perpetual license but has not signed a separate Support and Maintenance Agreement as quoted by Company, he is not eligible for any support and maintenance as stated in this agreement.
Company shall provide support and maintenance services with reasonable skill and care during the Term defined in this agreement. The following limitations and restrictions shall apply to all support and maintenance services provided under this Agreement;
Company shall provide support services to Licensee only on Business Days during Business Hours as specified in this agreement, excluding Company’s recognized holidays. All support and maintenance shall be conducted in the English language only. Licensee is expected to have a conversational level of English in order to receive support.
In certain cases, Company’s obligations to provide support and maintenance is restricted to a specific Project, Project User(s), Supported BSP(s), Supported Configuration(s)or similar restriction as listed in Company’s Quote, End-User License Agreement or an Exhibit (B “Support Restriction”). Where a Support Restriction is specified in an Company Quote, End-User License Agreement, or any Exhibit, then support and maintenance services provided under this Agreement shall be limited to the specified Support Restriction.
Support and maintenance is only valid and available for Software in the form provided by Company to Licensee and running on an operating system supported by Company. Company shall have no obligation to provide support for any Software or component thereof (including components of Current Products) made available on the Company Support Network marked as “unsupported” or otherwise designated as not being eligible for support. Company does not, and has no obligation, to provide standard support and maintenance for Legacy Products and EOL Products.
If Licensee requests, and Company agrees, to correct any problems or issues not covered by this Agreement, Licensee will pay Company for all such work performed at Company’s then-current standard time and materials charges. Such amount shall be due and payable within thirty (30) days of the applicable Company invoice date. Notwithstanding anything in this Agreement to the contrary, if Company determines that Licensee requires ongoing help with a particular problem that is not caused by an Error, or that the resolution to such a problem involves customization of the Software, Company may, at its sole discretion, refer Licensee to Company’s professional services group for assistance, for which Company requires an additional fee.
Company shall have no obligation to provide support for any Company professional service deliverables provided to Licensee, including but not limited to implementation services, integration services and including any software that Licensee may receive as part of such services.
Company has no obligation to provide any support and/or maintenance services to Licensees’ licensees, end-users, Licensees, or any other third party.
Company Updates, Patches and bug fixes are only effective on the latest version of the Software. For clarity, the latest version of the Software is a version of the Software that has been updated with all the most current Updates and Patches released or made available for such version of the Software. If Licensee has not incorporated all available Updates, Patches and bug fixes to the Software, any subsequently released Patches, Updates or bug fixes may not be effective or usable on such Software.
Company is not responsible to provide support for any hardware connected to a Company product. Even though, upon request; Company may agree to support such hardware issues, provided that Company currently has sufficient resources, Licensee acknowledges that Company cannot guarantee to resolve any hardware related issues.
Company is not responsible to provide support onsite. Even though, upon request; Company may agree to support Licensee onsite, provided that Company currently has sufficient resources, Licensee acknowledges that Company cannot guarantee to provide support onsite.
Company shall have no obligation to investigate or correct problems (including Errors) that cannot be reproduced by Company based on information provided by Licensee; or that are due to a breach by Licensee of the terms of the Software License Agreement; or that cannot be remedied due either to the operational characteristics of the computer equipment on which the Software is used; or to modifications to the Software made by Licensee or any third party. Company will use commercially reasonable efforts to provide the services under this Agreement; however, Licensee acknowledges that Company cannot guarantee that every question, problem, issue or Error reported by Licensee can or will be resolved. Nothing in this Agreement shall expand or add to any warranty for the Software set forth in the Software License Agreement or any other agreement with Company governing the use of the Software. The terms of this Agreement, including without limitation, any obligation of Company to provide support and maintenance hereunder, apply to Licensees purchasing support and maintenance for Software licensed directly from Company. Except as otherwise agreed to in writing, this Agreement shall not apply to, or obligate Company to provide, any support and maintenance services for Company products that a Licensee obtains from or through any source other than Company, including, but not limited to, a distributor.
The following Licensee responsibilities and obligations shall apply to all support and maintenance services provided under this Agreement and shall be a precondition for Company to provide any support and maintenance services to Licensee hereunder.
Licensee shall notify Company of problems using the service request tools described in section 6 of this agreement and will provide all relevant information known to Licensee, and as requested by Company, as well as sufficient support and test time on Licensee’s computer system to determine if a problem is attributable to an Error and, if applicable, to correct any Errors and determine if an Error has been corrected. Such problem notice must contain sufficient information on computer-readable media, if practicable, for Company to reproduce the problem. Thereafter, Licensee will keep Company notified of any additions or changes to such information, including any modifications to any Software being utilized (regardless of whether the modification is made by Licensee, a third party or Company). Licensee shall promptly respond to Company requests for additional information or assistance. If Licensee fails to respond to Company requests within 14 days starting at the posting of the support request, the support request will be void.
Licensee must designate one named contact person (“Licensee Contact”) for each current seat license for Software licensed from Company. Only Licensee Contacts shall be authorized to submit problem reports, access Company Support Network and receive Updates, Patches, Upgrades, Workarounds, correspondence and other communications, as applicable, concerning the Software. Licensee will notify Company in writing, of any change in the Licensee Contact. In no event shall the number of Licensee Contacts exceed the number of current valid seat licenses licensed by Licensee from Company.
Licensee acknowledges that the Updates, Patches and any other software, as applicable, provided to Licensee pursuant to this Agreement are subject to the terms and conditions of the Software End-User License Agreement and any additional terms specified on the Company Support Network, and Licensee agrees to abide by those terms and conditions.
If Licensee is entitled to receive Updates in accordance with the terms of this Agreement, Licensee shall incorporate the Updates as soon as practicable and acknowledges that failure to incorporate any such Update may make subsequent Updates and Patches unusable.
Company will provide support and maintenance through the channels defined herein after;
Any issue being raised by Licensee will be registered and tracked in Company internal support data base. The Licensee is guaranteed to get frequent updates on the status of his issue, until such issue is resolved or cancelled.
Either party may terminate this Agreement or any addenda hereto, if the other party materially breaches its obligations hereunder and fails to cure such breach within thirty (30) days of the non-breaching party’s written notice thereof (except for breaches of Section 5 or Section 6 of the End-User License Agreement, for which there is no cure period). Company may terminate this Agreement or any addenda hereto upon the occurrence of any event which would permit Company to terminate the Software License Agreement or any other agreement between Company and Licensee. In the event of termination or expiration of this Agreement or any addenda hereto, all fees or charges then due and payable, or to become due and payable in the future based upon services already rendered, shall be immediately due and payable to Company and Licensee’s obligations to pay such amounts shall survive the termination of this Agreement or any addenda hereto. The following sections shall survive any expiration or termination of this Agreement or any addenda hereto.
IN NO EVENT WILL COMPANY, ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR (1) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (2) ANY DAMAGES RESULTING FROM LOSS OF USE, OR LOSS OF DATA, OR LOSS OF PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE LICENSED PRODUCTS OR ANY INFORMATION PROVIDED HEREUNDER, WHETHER IN AN ACTION BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE. IN NO EVENT WILL COMPANY, ITS AFFILIATES OR SUPPLIERS TOTAL LIABILITY FOR ANY DAMAGES AWARDED IN ANY ACTION BASED ON CONTRACT OR TORT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID FOR THE PRESENT LICENSE EVEN IF COMPANY, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT OR WEAPONS SYSTEMS.
Any notice, request, instruction, legal proceedings or other instrument to be given, served, or provided under this Agreement by either party shall be deemed given and received when in writing and delivered personally or five (5) days after being sent by certified or registered mail, postage prepaid, to Company or Licensee at the address of each as indicated below, provided that either party may change such address, only by written notice to the other party:
If to Company:
Current address of Company as mentioned on the invoice or as otherwise specified by Company.
If to Licensee:
Current address of Licensee as mentioned on the purchase order or as otherwise specified by Licensee.
No delay or failure of either party in exercising any right and no partial single exercise of any right shall be deemed to constitute a waiver of that right or any other right under this Agreement. No action arising out of this Agreement, regardless of form, may be brought by either party more than one (1) year after the cause of action has accrued.
If any provision, or portion thereof, of this Agreement is declared invalid by a Court of law or is unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted.
The rights of Licensee under this Agreement may not be assigned, in whole or in part, and any attempted assignment of rights, duties or obligations hereunder without such consent shall be null and void.
This Agreement may not be amended, altered, or modified and no right hereunder may be waived except by a written agreement signed by authorized representatives of the parties.
This Agreement sets forth the entire understanding between the parties with respect to the matters set forth herein and supersedes all prior representations, understandings, or agreements, whether written or oral, express or implied, with respect thereto.
This Agreement is governed exclusively by the laws applicable in Switzerland. Notwithstanding any other agreement or provision to the contrary, the parties acknowledge that the license was acquired in the Canton of Solothurn, Switzerland. Any other treaty convention or contracts according to international laws or the United Nations Convention do not apply. The Licensee irrevocably agrees that the courts of the Canton of Solothurn, Switzerland shall have exclusive jurisdiction in relation to any claim, dispute, or difference concerning the present Agreement and any matter arising therefrom, and irrevocably waive any right that it may have to object to an action being brought in those courts, or to claim that the action has been brought in an inconvenient forum, or that those courts do not have jurisdiction. Nothing in this clause shall limit the right of Company to take proceedings against Licensee in any other court of competent jurisdiction. In case of court events the Company is not responsible for Licensee’s possible translation or court remote fees.
All Exhibits attached hereto are incorporated herein by this reference, and Company has the right to amend in writing any of those Exhibits in its sole discretion. The Licensee shall be notified in writing of any such amendment.
This Agreement is in English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the Parties. All communications and notices to be made or given pursuant to this Agreement, and any dispute proceeding related to or arising hereunder, shall be in the English language. If there is a discrepancy between any translation of this Agreement and this Agreement, this Agreement shall prevail.
IN WITNESS WHEREOF, this Agreement has been executed by the parties' authorized representatives on the Effective Date first written above.
The maintenance period is one year starting at the effective date, unless otherwise specified in the Company’s Quote.
The following support restrictions apply:
| Restrictions |
