Any definition described in the singular shall also apply to the plural.
"Agreement" shall mean the General Terms and Conditions referenced therein and all attached Exhibits and Addenda.
"Product" shall mean the SortableTableView software library, and includes all related materials, documentation and information received by License from Ingo Schwarz, and all corrections, modifications and improvements of any of the foregoing that Ingo Schwarz may provide to Licensee pursuant to Section "Maintenance and Support Desk Services" of this Agreement.
"Development" shall mean use of Product to develop Systems, either directly by making use of the Application Programming Interface (API) of Product, or indirectly by making use of another System that itself accesses the API of Product.
"Developer" shall mean any employee of Ingo Schwarz who uses Product for Development at Licensee’s premises.
"System" shall mean any software which has been or will be developed by Licensee and the incorporates in any manner any portion of Product.
1.6. End User System
"End User System" shall mean a specific System developed by Licensee that is intended dor deployment to and ue by the End User.
1.7. End User Organization
"End User Organization" shall mean an entity receiving End User System from Licensee.
1.8. End User
"End User" is any individual of End User Organization using End User System.
2.1. Grant of License
Ingo Schwarz hereby grants to Licensee a non-exclusive and non-transferable license, without rights of sublicense, (1) to use Product for Development by Developers, and (2) to distribute End User System to End Users, as provided in this Agreement for the term of this Agreement. No other licenses, express or implied, are granted hereunder.
2.2. Authorised Use
Licensee is authorised to use Product as follows:
The number of Developers that may simultaneously use Product for Development is unlimited.
The number of End Users is unlimited.
Licensee is authorised to make copies of License for backup or archival purpose.
Licensee will not permit End User System to be used for Development.
The source code of Product (other than included demonstration code) and design documentation are never considered part of Product and is neither delivered to Licensee nor under any circumstances licensed to Licensee hereunder. Licensee will not attempt or permit anyone else to attempt to modify, copy, except as provided in this section, reverse engineer, reverse compile or disassemble the object code for Product.
2.3. Title and Ownership
Licensee recognises that Ingo Schwarz represents that Product and all portions, reproduction, corrections, modification and improvements thereof
considered by Ingo Schwarz to be trade secrets;
provided to Licensee in confidence; and
the exclusive and proprietary property of Ingo Schwarz
Title and full ownership rights in Product and such portions, reproductions, corrections, modification, improvements, and all related right,s copyrights, trade secrets, trademarks, service marks, related goodwill and confidential and proprietary information, are reserved to and shall remain with Ingo Schwarz.
Licensee agrees not to remove or destroy any copyright, trademark, trade secret, proprietary or confidential legends or makings placed upon or contained within Product; and Licensee will reproduce and include all such legends and markings within copies or Product mad by Licensee, in while or in part, for Licensee’s own use.
Product may from time to time be supplied together with other components. The terms and conditions of use of these components by Licensee and/or by End Users may be found in the user documentation supplied together with Product. Licensee is entitled to use such components to the extent Licensee compiles with these terms and conditions contained or referred to in the user documentation, and shall hold Ingo Schwarz harmless for all costs and damages incurred as a consequence of non-compliance.
Transfer and Assignment. The rights if license contained herein ma not be assigned or transferred to a third party without prior written consent of Ingo Schwarz. Any attempt by Licensee to do so without that consent will be void.
Documentation. Ingo Schwarz will provide Licensee with relevant user documentation as part of Product. Licensee’s copyright of the documentation, quick-start-guide and other reference materials is not permitted without Ingo Schwarz prior written consent.
3. Maintenance and Support Services
"Software Error" shall mean a proven difference between the actual behaviour of Product and Product specifications, as specified in the documentation accompanying Product. A Software Error must be reproducible, and implies that, by entering the valid commands in the documented way, a wrong result is produced.
"Update" shall mean the most recent, official released version of Product with Software Error corrections, additions and any other modifications, which shall be deemed as minor logical improvement or additions. Such Product Updates shall contain no substantial new functions or features.
"Upgrade" shall mean the most recent, officially released version containing alterations to Product, which shall contain substantial new functions or features.
During the term of this Agreement, so long as Ingo Schwarz offers maintenance for Product to customers generally and Licensee pays Ingo Schwarz maintenance fees then in effect for Product, Ingo Schwarz will provide Licensee with maintenance for Product as follows: Ingo Schwarz will provide Licensee with Updates and Upgrades of Product as developed by Ingo Schwarz the Ingo Schwarz provides generally at no additional cost to his other customers entitled to receive such Upgrades and Updates.
If Licensee fails to purchase maintenance for Product, or if such maintenance is terminated, Licensee may continue to use Product pursuant to the license granted hereunder but will not be entitled to receive maintenance services for Product.
To reinstate such services, Licensee must pay all maintenance fees for periods during which Licensee did not purchase maintenance, on a cumulative basis, together with interest thereon compounded annually at the rate of fifteen percent (15%) oer annum commencing with the expiration or termination of the last paid maintenance period.
3.3. Support Desk
During the term of this Agreement, so long as Ingo Schwarz offers Support services for Product to customers generally and Licensee pays Ingo Schwarz Support fees then in effect for Product. Ingo Schwarz will provide Service assistance as follows:
Licensee must submit a support request by e-mail to firstname.lastname@example.org referring to this Agreement.
Ingo Schwarz will log the request and acknowledge receipt of Licensee’s request by e-mail.
If a software error has been identified, Ingo Schwarz will make his best effort to implement a solution in a timely manner.
Ingo Schwarz will inform Licensee on the status of the support request whenever Licensee requests information on the ticket.
Ingo Schwarz my cancel the Support obligation for Product if Licensee declines to implement any Update for Product, within twelve months of the release of that Update, which Ingo Schwarz provides at no additional charge to all Licensees.
4. Professional Services
4.1. Training and Consulting Services
Ingo Schwarz will provide training and consulting services ordered by Licensee under the terms and conditions of this Agreement and any relevant price list, work order or proposal, as mutually agreed between Ingo Schwarz and Licensee.
All executable programs, not part of Product, developed hereunder, and all programming documentation relating thereto shall belong to licensee. Notwithstanding any provisions of this Agreement. Ingo Schwarz may utilise freely any and all ideas, concepts, methods, know-how, source code or techniques related to programming and processing of data, discovered or developed by Ingo Schwarz during the performance of Professional Services.
5.1. License Fees
The total license fees set forth in the bill will be invoiced upon Licensee’s order.
5.2. Support Fees
Support fees for all periods of the term of this Agreement are payable in advance and will be invoiced at the ten current price as described at the homepage sortabletableview.com.
5.3. Professional Services
Professional Services fees will be invoiced on a monthly basis. In the event of cancellation of ordered Professional Services by Licensee less than five (5) days before the planned data for performance of such services, fifty percent (50%) of the fees will be invoiced.
5.4. Payment Terms and Late Charges
Invoices are due within 30 days of the invoice date. When invoices are past due, a late charge of one and one-half percent (1,5%) of the past due amount may be invoiced for each thirty (39) days past due. If an invoice remains past due for more than 60 days, Ingo Schwarz has the right to delay deliveries until payment is received.
5.5. Incidental Expenses
Licensee shall reimburse Ingo Schwarz for actual costs incurred by Ingo Schwarz representative to perform training services. Professional Services or any other service hereunder, for travel and living expenses when such services are performed at Licensee’s site. In addition, when services are performed outside the European Union, actual travel time will be invoiced to Licensee at an hourly rate equal to 40% of the normal hourly rate of the Ingo Schwarz representative. An hourly rate is equal to the daily rate divided by 6.
In addition to all charges specified in this Agreement, Licensee will pay or reimburse Ingo Schwarz for all sales, use, withholding, value added and similar taxed based on the charges payable hereunder and any personal property, privilege or other taxes based on Licensee’s possession or use of Product which are now or may hereafter be imposed under the authority of any taxing jurisdiction.
Ingo Schwarz shall make Product available electronically.
7. Warranty and Liability
7.1. Warranty of Product
Ingo Schwarz hereby warrants that Product. as delivered by Ingo Schwarz. will be capable of operating substantially in conformance with Product’s published specifications set forth in Product documentation. Ingo Schwarz does not provide any guarantee as to result, nor does Ingo Schwarz warrant that the operation of Product will be error-free. Ingo Schwarz will undertake to correct any reported error condition in accordance with the provisions of section 3 of this Agreement. If this does not apply to the specific case Product is distributed "as is", with no warranty whatsoever.
7.2. Warranty of Professional Services
Ingo Schwarz hereby warrants that his Professional Services will be of a professional quality conforming to generally accepted industry standards and practices. This warranty shall be valid for a period of thirty (30) days from the time of performance or delivery. After such period, Licensee will be charged for any support requested on a time and material basis.
7.3. Limitation of Warranties
Ingo Schwarz makes no warranties, either expressed or implied, as to any matter whatsoever, and disclaims all implied warranties, including, without limitation, the condition of Product, its merchantability, its fitness for any particular purpose or non infringement. As an accommodation to Licensee, Ingo Schwarz may supply Licensee with pro-production releases Product, labelled "Alpha" or "Beta". These releases are not suitable for production use. Ingo Schwarz does not warrant pre-production releases; these releases are distributed "as-is".
7.4. Acts of Licensee
Any modification of Product not made by Ingo Schwarz or any failure by Licensee to implement any Updates or Upgrades to Product, within twelve (12) months of the release of such Updates or Upgrades, as supplied by Ingo Schwarz will void Ingo Schwarz maintenance and support obligatory under section 3. and Ingo Schwarz warrant under Section 7., unless Licensee has obtained prior written authorisation from Ingo Schwarz permitting such modifications or failure to implement.
7.5. Limited Liability
Ingo Schwarz shall indemnify Licensee for the material and/or physical damage directly caused by a fault proven by Licensee to be the responsibility of Ingo Schwarz within the frame of Agreement. In any case the amount of compensation shall be limited to the amount if the total License fee paid under Agreement. In excess of that amount, Ingo Schwarz shall be released of his liability. Ingo Schwarz can never be held liable for indirect damage such as financial damage, commercial damage, profit or income loss or loss of information. Licensee is responsible for safeguarding its information by (for example) taking frequent back-ups. Each claim for compensation of damages has to be notified in writing to Ingo Schwarz within thirty (30) days after the damage was caused.
8. Patent and Copyright Indemnification
Ingo Schwarz agrees to indemnify Licensee and to hold it harmless from any and all claims of infringement of United States patents pertaining to software, issued as of the effective date of Agreement, and of copyrights, trademarks, trade secrets or other proprietary rights of third parties asserted against Licensee by virtue of Licensee’s use of Product as delivered and maintained by Ingo Schwarz, provided that Ingo Schwarz is given prompt notice of any such claim and the right to control and direct the investigation, preparation, defence and settlement of each such claim, and further provided that Licensee reasonably co-operates with Ingo Schwarz in connection with the foregoing and provides Ingo Schwarz with all information in Licensee’s possession related to such claim and further assistance as reasonably requested by Ingo Schwarz. Ingo Schwarz will have no obligation to indemnify Licensee to the extent any such claim is based on the use of Product with software or equipment not supplied or expressly included within this indemnification in advance and in writing by Ingo Schwarz. Should Product as delivered and maintained by Ingo Schwarz become, or in Ingo Schwarz opinion be likely to become, the subject of any such claim, Ingo Schwarz may at his option procure for Licensee the right to continue to use Product as contemplated hereunder or may replace or modify Product to make his use non-infringing, or should such option not be available at reasonable expense, then Ingo Schwarz may terminate Agreement upon ninety (90) days prior written notice to Licensee without further obligation other than as provided in Section 10. hereof.
9. Confidentially; Nondisclosure
Licensee agrees that: (A) the Product, all related information and materials received by Licensee from Ingo Schwarz under this Agreement are and will be treated as the confidential property of Ingo Schwarz; (B) all ideas, algorithms, techniques, methods and processes used in the Product are and will be treated as the confidential property of Ingo Schwarz; © Licensee will exercise all reasonable efforts to safeguard the confidentiality of all of the foregoing; (D) none of the foregoing nor any part thereof may be duplicated or in any way disclosed to others, or used as part of any System of Licensee’s in whole or in part, other than described in Section 2.2. Licensee agrees to indemnify Ingo Schwarz for all damages, costs and expenses (including court costs and reasonable attorney’s fees) incurred by Ingo Schwarz in connection with any failure of Licensee or his employees or agents to comply with Licensee’s obligations under this Section. The obligations of Licensee set forth above, however, shall not apply to confidential property which (i) is now or hereafter becomes publicly known; (ii) is disclosed to Licensee by a third party which Licensee has no reason to believe is not legally entitled to disclose such information; (iii) is known by Licensee prior to its receipt of the confidential property; (iv) is subsequently developed by Licensee independently of any disclosures made hereunder by Ingo Schwarz; or (v) is disclosed with Ingo Schwarz consent.
The parties agree to treat as confidential the terms of this Agreement and the parties agree to use their reasonable efforts to prevent disclosure thereof to any third party except with the prior written consent of the other party, or as required by law. This obligation of confidentiality shall extend for a period of one (1) year following termination or expiration of Agreement. Notwithstanding the generality of the foregoing, either party may disclose the existence of Agreement.
10. Term and Termination
The term of Agreement shall commence upon signature by both parties of Agreement and shall continue for twenty (20) years unless terminated in accordance with Agreement.
Either party shall be entitled to terminate Agreement at any time on written notice to the other in the event of a material default by the other party and a failure to cure such default within a period of thirty (30) days following receipt of a written notice specifying that a default has occurred. Licensee may elect to terminate Agreement upon ninety (90) days written notice and it is expressly understood that such termination shall not discharge payment obligations accrued as at the date of such termination, even if such obligations are payable after the termination date, or entitle Licensee to a refund of any amounts previously paid to Ingo Schwarz.
Upon (1) the institution of any proceedings by or against either party seeking relief, reorganization or arrangement under any of the laws relating to insolvency, which proceedings are not dismissed within sixty (60) days, (2) the assignment for the benefit of creditors, or the appointment of a receiver, liquidator, or trustee, of any of either party’s property or assets, or (3) the liquidation, dissolution or winding up of either party’s business, then and in any such events Agreement may immediately be terminated by the other party upon written notice.
10.3. Disposition of Termination
Upon the termination of Agreement, Licensee shall destroy all copies of the Software and Related Materials, and all other information and documentation provided by Ingo Schwarz to Licensee.
10.4. Survival of Certain Terms
The following provisions shall survive any expiration or termination: 2.3, 7.3, 7.5, and 10.
11.1. Waiver, Amendment or Modification
No modification or waiver of any provision of Agreement shall be binding on either party unless specifically agreed upon in writing signed by both parties hereto.
11.2. Validity Term of Proposals
Ingo Schwarz offers and business proposals are valid for 90 days unless otherwise specified in writing. Beyond 90 days, Ingo Schwarz may unilaterally amend or rescind any term of the offers or proposals.
Agreement and any rights granted hereunder may not be assigned, sub-licensed or otherwise transferred by either party without the prior written consent of the other party, which shall not be unreasonably withheld.
The unenforceability or invalidity of any provisions of Agreement shall not affect the validity or enforceability of any other provision of Agreement.
11.5. Force Majeure
Neither party shall be liable for damage due to any cause beyond its control, including without limitation to acts of God, acts of civil or military authority, labour disputes, failure or delay of suppliers, fire, riots, sabotage, war, embargo or acts or omissions of the other party.
All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given when electronically mailed to the Licensee.
11.7. Entire Agreement
There are no warranties, representations or agreements among the parties related to the same subject matter, except as expressly set forth herein. Any and all modifications of Agreement must be made by mutual agreement of the parties and must be in writing, signed by an authorised official of Licensee and Ingo Schwarz.