ALPEIN Software SWISS AG
LICENSE AGREEMENT v1.0 ANALYTICS EXTENSIONS FOR SAP BUSINESSOBJECTS SOFTWARE
IMPORTANT - PLEASE READ THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT CAREFULLY. BY INSTALLING OR USING THE ALPEIN ANALYTICS EXTENSIONS FOR SAP BO SOFTWARE, (1) YOU ACKNOWLEDGE THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT YOU SHOULD DISCONTINUE THE DOWNLOAD AND USE OF THE ALPEIN ANALYTICS EXTENSIONS. DEFINITIONS ARE INCLUDED IN ATTACHMENT A.
THIS SOFTWARE LICENSE AGREEMENT (“Agreement”) is entered into between ALPEIN Software SWISS AG, a software Switzerland company, whose business address is Hofwisenstrasse 12, 8260 Stein am Rhein, Switzerland (“Licensor”), and the individual, agent, or authorized representative of the company to use the Licensed Software (“Licensee”), as of the date Licensee accepts the terms of this Agreement by using the Licensed Software (“Effective Date”). This Agreement sets forth the terms under which Licensee may use the proprietary software identified on Exhibit One (“Licensed Software”), as well as any documentation, user manuals, and related materials provided by Licensor with the Licensed Software (collectively, the “Licensed Documentation”).
1. GRANT OF LICENSE; TERM. Subject to the terms of this Agreement, Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor, a nonexclusive, non-transferable, nonsublicensable, one (1) year license: (i) to use the Licensed Software as set forth on Exhibit One; (ii) to use the Licensed Documentation exclusively in connection with the Licensed Software; and (iii) to use all Software Services provided by Licensor in connection with the Licensed Software (“License”). Licensee extends the use of the Licensed Software to subsidiaries and agents.
Each License is granted on an annual subscription basis commencing on the Effective Date. Each license is limited to the number of users and technology specifications and limitations as set forth on Exhibit One. In the event the licensee needs to involve more business users in process, the licensee has to purchase additional licenses as set forth on Exhibit One. Licensor and Licensee agree that any rights not specifically granted to Licensee by this Agreement are expressly reserved by Licensor. Licensor reserves the right to change the terms of this Agreement annually in its sole and absolute discretion and Licensee will be notified of any changes to this Agreement prior to the expiration of each annual term.
Subject to Licensee’s payment of the License Fee as set forth in Addendum 1, the term of this Agreement for the Licensed Software shall commence on the Effective Date and renew on the one (1) year anniversary of the Effective Date (the “License Term”).
2. OWNERSHIP; RESTRICTIONS. The Licensed Software and Licensed Documentation are being licensed, and not sold, to Licensee. All right, title, and interest in and to the Licensed Software and Licensed Documentation are and shall remain at all times the sole and exclusive property of Licensor and its licensors. Licensee’s rights in or to the Licensed Software and Licensed Documentation are limited to those rights explicitly set forth in this Agreement. Licensee shall not copy, translate, reverse engineer, decompile, disassemble, sell, sublicense, display, host, outsource, disclose or otherwise commercially exploit or make available to any third party the Licensed Software or Licensed Documentation, or modify, enhance, or otherwise change or supplement the Licensed Software or Licensed Documentation, in any way, without the prior written consent of Licensor which may be withheld in Licensor’s sole and absolute discretion.
3. PAYMENTS. In consideration of the rights granted pursuant to this Agreement, Licensee shall pay Licensor the following license fee (“License Fee”): For the initial one-year term of this Agreement, Licensee shall pay to Licensor, for each single License, the annual subscription fee per authorized price quote. For each Renewal Term Licensee shall pay to Licensor, for each individual license, at Licensor’s sole and absolute discretion, either: (i) the Initial Fee; or (ii) the annual subscription fee as determined by Licensor upon expiration of the most recent License Term (the “Renewal Fee”). Licensor reserves the right to change the Renewal Fee before the expiration of the most recent License Term, subject to the terms and conditions set forth on Exhibit Two –Support Terms. Licensee will be notified of any changes to the Renewal Fee prior to the expiration of the most recent License Term as set forth on Addendum 1.
4. TRAINING. Licensor shall provide no training as part of this Agreement.
6.1 Termination. Licensor may terminate this Agreement immediately if Licensee is in breach of this Agreement. Licensee may terminate this Agreement if Licensor is in material breach of this Agreement, and such breach is not cured within thirty (30) days following written notice from Licensee to Licensor. Either party may terminate this Agreement immediately if the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.
The Licensee may terminate the Agreement for any reason within 14 days of activation. If the Licensee cancels the agreement after the 14–day period, but prior to the expiration of the minimum term, the Licensee will be responsible for an Early Termination Fee and will not be entitled to a refund.
6.2 Effect of Termination. Upon termination of this Agreement for any reason: (i) the License Software will cease functioning; (ii) Licensee shall immediately cease all use of the Licensed Software and Licensed Documentation; (iii) Licensee shall return to Licensor within five (5) days all copies of the Licensed Software and Licensed Documentation in Licensee’s possession; (iv) Licensee shall erase or otherwise remove the Licensed Software and Licensed Documentation from any and all locations, including, without limitation, all individual computers, storage devices and/or servers.
7. SUPPORT, UPGRADES, MAINTENANCE. Licensor shall provide support, upgrades, and maintenance without any additional charge during the License Term if, and to the extent, specified on Exhibit Two - Support Terms.
8. LIMITED WARRANTY. Licensor warrants that, for a period of thirty (30) days after the Licensee’s installation of the Licensed Software (the “Warranty Period”), the Licensed Software will conform to the performance standards and specifications set forth in the Licensed Documentation if the Licensed Software is properly installed and used in the operating environment specified in the Licensed Documentation. Licensor’s sole responsibility under this warranty shall be limited to correcting the portion of the Licensed Software that fails to perform substantially in accordance with the specifications or, at the option of Licensor, refunding the applicable License Fee, in which event Licensee shall return all copies of the Licensed Software and Licensed Documentation. Licensor does not warrant that the Licensed Software will meet Licensee’s requirements or will operate in the combination that Licensee selects for use, or that the operation of the Licensed Software will be uninterrupted or error free, or that all defects in the Licensed Software will be corrected by Licensor. Licensor shall have no liability under the foregoing warranty if: (i) Licensee decompiles, reverse engineers, or modifies the Licensed Software without Licensor’s prior written consent; (ii) Licensee fails to give Licensor written notice of the claimed breach of warranty within ten (10) days of such breach; or (iii) the failure to perform is caused in whole or in part by persons other than Licensor or by products, equipment, or computer programs not furnished by Licensor.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS SECTION, THE LICENSED SOFTWARE AND LICENSED DOCUMENTATION ARE PROVIDED “AS-IS”, “WITH ALL FAULTS,” AND “AS-AVAILABLE” AND LICENSOR MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY, UNDER THIS AGREEMENT OR THROUGH THE USE OF THE LICENSED SOFTWARE OR LICENSED DOCUMENTATION, FOR ANY AMOUNTS REPRESENTING LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, LOSS OF BUSINESS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, OR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF LICENSEE OR ANY THIRD PARTY AND/OR FROM ANY OTHER CAUSE WHATSOEVER, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR’S AGGREGATE LIABILITY FOR ANY CAUSE OF ACTION, IN CONTRACT, TORT, OR OTHERWISE TO LICENSEE OR ANY THIRD PARTY ARISING FROM THIS AGREEMENT OR THE USE OF THE LICENSED SOFTWARE AND/OR LICENSED DOCUMENTATION EXCEED THE CURRENT ANNUAL LICENSE FEE PAID BY LICENSEE UNDER THIS AGREEMENT.
10. EXPORT. The Licensed Software and Licensed Documentation may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee shall strictly comply with all such laws and regulations, and has sole responsibility to obtain authorization to export or import the Licensed Software and Licensed Documentation, as may be required. To the maximum extent allowed by law, Licensee shall indemnify, defend, and hold Licensor, and its affiliates and licensors (and their shareholders, members, managers, officers, directors, employees, and agents) harmless from and against any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney's fees and costs) arising from or relating to any breach of Licensee’s obligations under this section. Licensee’s obligations under this section shall survive the expiration or termination of this Agreement.
11. CONFIDENTIALITY. Licensee agrees to take all necessary steps to protect and hold any software, design, specification, idea, concept, plan, copy, formula, drawing, procedure, or other business or technical information that is obtained as a result of services rendered by Licensor to Licensee in connection with this Agreement (“Confidential Information”) in strict confidence and with the same degree of care that Licensee uses to protect its own confidential and proprietary information. Licensee shall not use the Confidential Information other than: (i) to conduct business with Licensor pursuant to this Agreement; and (ii) for purposes of Licensee’s implementation and use of the Licensed Software and Licensed Documentation as intended by this Agreement. The obligation of confidentiality hereunder shall not apply to information that: (i) is or becomes available to the general public through no act or fault of Licensee; or (ii) is required to be disclosed pursuant to judicial or governmental decree or order, provided that Licensee gives Licensor prompt notice of and the opportunity to defend against disclosure pursuant to such decree or order. Licensee acknowledges that the unauthorized use or disclosure of any Confidential Information or violation of this Agreement would cause irreparable harm to Licensor and that monetary damages will not provide an adequate remedy. Accordingly, Licensee agrees that Licensor will have the right to obtain an immediate injunction against any breach or threatened breach of this Agreement or this Confidentiality provision, without bond, other security or proof of damages, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach. Licensor shall be entitled to recover its attorneys’ fees and costs arising in connection with any action to enforce this provision.
12. GENERAL PROVISIONS.
a. Complete Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement, and supersedes any prior or contemporaneous agreements, understandings, or proposals as to the subject matter of this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
b. Notice. Any notice or communication required or permitted in this Agreement shall be in writing and shall be delivered by email. Any email directed to Licensor shall be addressed to email@example.com. Any email directed to Licensee shall be addressed to the last known email address in Licensor’s records for Licensee.
c. Governing Laws and Venue. This Agreement and performance under this Agreement shall be governed exclusively by the laws of Switzerland without regard to any considerations of conflicts of law. FOR ANY DISPUTE RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS OF Switzerland.
d. Severability. If any provision of this Agreement is declared or found to be illegal, void, invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and enforceable to the maximum extent possible.
e. Assignment. Licensee may not re-assign, sublicense, or otherwise transfer This Agreement, without the express written consent of Licensor, its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part, and any purported attempt to do so is void and of no effect.
f. Waiver. The delay or failure of Licensor to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver by Licensor of such right or any further right under this Agreement.
g. Headings. The headings appearing at the beginning of the several sections contained in this Agreement have been inserted for identification and reference purposes only and shall not be used in the construction and interpretation of this Agreement.
h. No Construction Against Drafter. If an ambiguity or question of intent arises with respect to any provision of this Agreement, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring either party by virtue of authorship of any of the provisions of this Agreement.
i. Force Majeure. Each party shall be excused from performance and shall not be liable for any delay (except as to any payment requirements) in whole or in part, caused by the occurrence of any contingency beyond the reasonable control either of the excused party or its subcontractors or suppliers including, but not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms hereof, accident, fire, explosion, flood, severe weather or other act of God, or shortage of labor or fuel or raw materials.
j. Equitable Remedies. Licensee agrees that Licensor would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore Licensor shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies, including an injunction, with respect to any breach of this Agreement, in addition to such other remedies as Licensor may otherwise have available under applicable laws.
k. Survival of Certain Provisions. Termination or expiration of this Agreement for any reason shall not release either party from any liabilities or obligations set forth in this Agreement that: (i) the parties have expressly agreed shall survive any such termination or expiration or (ii) remain to be performed or by their nature would be intended to be applicable following any such termination or expiration. The provisions of Sections 2, 8, 9, 10, 11 and 12 shall survive the expiration or earlier termination of this Agreement.
l. Relationship. Licensor’s relationship to Licensee pursuant to this Agreement is one of independent contractor and no agency, partnership, joint venture, or similar relationship is created by this Agreement. Neither party shall have the right, power or authority to create any obligation, expressed or implied, or to make any representation on behalf of the other party, except as may be expressly authorized from time to time by such other party in writing and then only to the extent of such authorization.
LICENSEE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS.
ADDENDUM 1: NOTICES
Any notice or communication in this Agreement required or permitted to be made pursuant to this Addendum shall be given at least 30 days prior to the underlying event to which such notice pertains. Such notice shall be in writing and shall be delivered by email. Any email directed to Licensor shall be addressed to firstname.lastname@example.org. Any email directed to Licensee shall be addressed to the last known email address in Licensor’s records for Licensee.
EXHIBIT ONE – LICENSED SOFTWARE
· Developer Licenses
The Developer license includes full version of an extension in all period of lifespan.
· End-User Licenses
The End-User license include full version of an extension for one (1) Named User in all period of lifespan. If a buyer have more than one user he needs more licenses equal of the certain number of users. Special price conditions are available in case of using more than 100 licenses.
· Subscription renewal is set 365 days from purchase of Licensed Software.
LICENSED SOFTWARE ELECTRONIC DISTRIBUTION: The Licensed Software is provided on Licensor’s support portal. The Licensed Software may be downloaded and re-distributed by Licensor within the terms of the License Agreement.
EXHIBIT TWO – STANDARD SUPPORT TERMS
1. SUPPORT, MAINTENANCE: To the extent set forth herein, support and maintenance is provided by Licensor to Licensee for Licensed Software. The “Support and Maintenance Services” are as follows:
a) Licensor shall provide hot fix, service pack, and full version upgrades made by Licensor during the License Term to Licensee.
b) Licensor will notify Licensee when new hot fixes, service packs and full version upgrades are available for download.
c) All support cases are received, managed, and resolved by Licensor.
d) Licensor will classify any reported bugs or defects as follows:
P1: Crash bug, or core feature causing the entire software solution to be inoperable
P2: Feature defect that affects usage of the software that has an acceptable workaround
P3: Minor feature defect that does not affect usage of the software
P4: Enhancement request that would improve the utility of a feature
e) Licensor will provide email-only case creation and management.
f) Licensor support staff will use the appropriate communication mechanism to resolve support cases, including but not limited to email, telephone, and web conferencing technologies provided by Licensor.
g) Licensor may require project source files to appropriately troubleshoot expedite case resolution. When project source files are confidential or unavailable, Licensee may be required to cleanse source files of proprietary data or share via web conferencing provided by Licensor to identify potential user error or software defect.
h) Licensor will NOT support third party technologies, integrations, connectivity or components not contained in this License.
i) Licensor will reply to support cases with 72 hours of receipt during Support Hours.
2. SUPPORT HOURS: Technical support is offered during normal business hours, Monday-Friday 9am-6pm UTC+1, excluding all major Swiss holidays.
3. SUPPORT LANGUAGE: Support is provided in English only.
“Internal Use”- The term “use” in this case covers the utilization of the software services and object code itself. This covers all supporting functions of the software and services including but not limited to installation, de-installation, development, design, publishing, distributing, and use of any compiled applications officially supported with the Licensed Software. "Internal Use" covers by developer license and use it for non-productive purpose only.
Non-Exclusive - The Licensor reserves the right to license the same software to other Licensees.
Non-transferable license - The licensee cannot transfer the license in its entirety and the rights granted to any third party without the licensor's consent.
*The transfer of a software from one user or developer to another is supported under Exhibit Two, Support Terms “TRANSFERRING DEVELOPER ACCESS - INSTALLATION”
Non-sublicensable license - The Licensee is restricted from utilizing the licensed software within another licensed software solution, commercial or non-commercial. A non-sublicensable license restricts “productizing” or re-purposing the Licensed Software as part of another software service.