LEGAL

Last updated: 2011-07-28 • View older versions

The Parties

This License agreement (the “Agreement”) has been made by and between:

InfraSight Labs AB, a company limited by shares incorporated in Sweden under company registration number 556801-6314, (“InfraSight Labs”), with registered address at Anckargripsgatan 3, 21119 Malmö, Sweden;

and a Licensee, (“Licensee”) , described in the Purchase Order.

Each a “Party” and collectively the “Parties”

Contents Of This Agreement

The full agreement between the parties consists of a Purchase Order and these General terms (the “Agreement”). In the event of conflicting terms in the above listed documents, the documents shall prevail in the following order: (i) the Purchase Order; (ii) these General Terms. If no Purchase Order exists, these General Terms constitute the full agreement.

Grant of License

The Licensed Program is the software program(s) provided by InfraSight Labs under this Agreement. The License Period is the duration of the subscription of the license set forth in the Purchase Order.

InfraSight Labs hereby grants to the Licensee, and the Licensee hereby accepts a time-limited (as described in the Purchase Order), non-exclusive, non-transferable between installations, and non-assignable license to use the Licensed Program, and data that the Licensed Program produces.

The Licensee shall not use the Licensed Program in violation of the terms and conditions provided in the Agreement.

The Licensee undertakes not to let any third party use any part of the Licensed Program or make computed use of data produced by the Licensed Program, perform or allow de-compilation or dissemblance to an extent which exceeds what is permitted by law, or alter, copy or in any other way dispose the Licensed Program to an extent that exceeds what is permitted by law.

The Licensee shall make sufficient precautions to prevent any third party from committing any of the actions listed in the clause above.

Intellectual Property Rights

All patents, patent applications, including with respect to patents any patent rights granted upon any reissue, division, continuation or continuation-in-part applications now or hereafter filed, utility models issued or pending, registered and unregistered design rights, copyrights, registered and unregistered trademarks, trade secrets and proprietary know-how and any other similar statutory intellectual property or industrial rights, as well as applications for any such rights regarding the Licensed Program, any part of such Program, any development of the Licensed Program or to any other product InfraSight Labs provides to the Licensee, are owned by InfraSight Labs.

The Intellectual Property Rights to the Licensed Program shall at all times be owned by and vested in InfraSight Labs, and no ownership rights to the Licensed Program or any further development of the Licensed Program, shall, under any circumstances, be transferred to the Licensee.

Delivery

The Licensee will get access to the Licensed Program through an executable file, downloadable from the Internet. The downloaded executable file is permitted to run only during the License Period and on one designated client computer per license. The license is not transferrable to any other computer client or any third party.

The Licensee is in its sole discretion responsible for having and maintaining sufficient hardware, software, Internet connection and other enabling technology in order to be able to run the Licensed Program properly, and within the time limits agreed in the purchase order.

Warranties and remedies

The Licensed Program is under continuous development and sold “as is”. InfraSight Labs’s liability is limited to above provision. No claims may be brought against InfraSight Labs, except where InfraSight Labs has been guilty of gross negligence or willful misconduct.

Limitations of liability

InfraSight Labs may not be liable to the other party for any direct, indirect or other consequential damage or loss, including but not limited to loss of profit, loss or alteration of data, costs for recreation of lost or altered data, or damages payable to third parties, even if the other party has been advised of the possibility of such damage or loss.

InfraSight Labs’s aggregated maximum liability to Licensee under the Agreement shall be limited to the license fee paid to InfraSight Labs during the last six (6) months.

Fees and payment

In consideration of the rights granted to the Licensed Program, Licensee shall pay InfraSight Labs the license fee (“License Fee”), specified in the Purchase Order, and such other costs and fees (as applicable) as specified in this agreement or appendices.

InfraSight Labs reserve the right to adjust prices at any time. Adjusted price will not apply until after current license period.

The license period for which InfraSight Labs shall be eligible to charge license fee, shall start from the date on which this Agreement is signed or electronically accepted, unless otherwise agreed. Any delay caused by the Licensee, shall not affect the right for InfraSight Labs to charge the agreed fees.

Payment of the License Fee shall be made in advance of the time period for which the license is valid and with the continuity set forth in the purchase order.

Any complaints regarding an invoice shall be submitted in writing not later than five (5) days from the Licensee’s receipt of the invoice. If payment is not made in due time, InfraSight Labs is entitled to charge penalty interest after the due date, in accordance with law.

Confidentiality

All information, whether oral or written or in visual, electronic or tangible form, regarding or otherwise relating to a Party, any of its Affiliates or to any of its/their affairs or other business matters, which has been disclosed or may be disclosed to the other Party (the “Receiving Party”) or which the Receiving Party has or may otherwise become aware of in connection with the preparation, negotiation, entry into or performance of this Agreement, shall during the term of this Agreement and for a period of five (5) years after its termination or expiry for whatever reason be kept strictly confidential by the Receiving Party and not be used by it for any other purpose than the performance or enforcement of this Agreement nor be disclosed by it to any third party without the prior written consent of the other Party.

The restrictions in this Section shall not apply to information:

(a) to the extent reasonably necessary to be used or disclosed by the Receiving Party in order for it to secure its interests against the other Party in connection with a dispute, controversy or claim arising out of or in connection with this Agreement or to otherwise enforce its rights under this Agreement;

(b) that was at the time of its disclosure or which becomes thereafter generally available to the public otherwise than as a consequence of a breach by this Agreement;

(c) that was obtained by the Receiving Party in good faith without restriction from a third party;

(d) it is independently developed by the Receiving Party through its own verifiable activities without the use of disclosing party’s Confidential Information;

(e) it is rightfully obtained from a third party having no obligations of confidentiality to the disclosing party, or

(f) that the Receiving Party is required to disclose by law or any governmental or other regulatory authority or by any applicable contract or regulations of any applicable stock exchange or other market place.

The Party using or disclosing any information or documentations with reference to any of these exceptions bears the burden of proof to establish that the relevant exception applies.

Licensee permit InfraSight Labs and/or it’s affiliates to use data produced from the Licensed Program for the purpose of further development, education and gathering of statistics.

Without prejudice to the foregoing this confidentiality clause shall not apply regarding InfraSight Labs right of referring to the Licensee as a customer to InfraSight Labs in public.

This Section shall survive termination or expiry of the Agreement for a period of five (5) years.

Force Majeure

Either Party shall be entitled to suspend performance of its obligations under this Agreement to the extent that such performance is impeded or made unreasonably onerous by any circumstances beyond the Parties’ control, including, but not limited to; general labor disturbances, such as boycott, strike and lockout, fire, war, whether declared or not, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power and defects or delays in deliveries by subcontractors caused by any such circumstances referred to in this Section. A circumstance referred to in this Section, which had occurred prior to the effective date of the Agreement, shall give a right to suspension only if its effect on the performance of the Agreement could not be foreseen at the effective date of the Agreement.

The Party claiming to be affected by force majeure shall notify the other Party in writing without delay on the intervention and on the cessation of such circumstance.

Regardless of what may otherwise follow from this Agreement, the Party not affected by force majeure shall be entitled to terminate the Agreement by notice in writing to the other Party if performance is suspended under this Clause for more than three (3) months.

Terms and termination

If not agreed otherwise between the parties, the Agreement shall come into force when the Licensee has accepted the General Terms on InfraSight Labs’ web site and/or in the Licensed Program and shall remain in full force and effect for the period described in the purchase order, License Period, if not terminated in accordance with the provisions of the Agreement.

At the end of the License Period, should it be three months or longer, or any subsequent term thereof pursuant to a renewal under this Clause, this Agreement shall be automatically renewed for as long time as the original License Period unless terminated or changed by either of the Parties giving written notice to that effect to the other Party not later than:

(a) one month prior to the expiry of the relevant term if the License Period is three months, or

(b) three months prior to the expiry of the relevant term if the License Period is longer than three months.

Each party is entitled to terminate the Agreement without prior notice if the other Party should commit or permit a breach or non-performance of material importance to the other Party and should fail to remedy such breach or non-performance within sixty (60) days after receipt of written notice.

Furthermore, InfraSight Labs shall be entitled to immediately terminate the Agreement (or part thereof) if:

(a) The Licensee is delayed more than thirty (30) days with the payment of the License Fee and/or other costs (as applicable)

(b) The Licensee or any of its affiliated companies enters into business which is competing with the business of InfraSight Labs;

(c) Material changes in the ownership of the Licensee or if any agreement is concluded under which the Licensee’s business is transferred to a competitor of InfraSight Labs; or

(d) The Licensee or any of its affiliated companies institute legal action against InfraSight Labs.

Without prejudice to any remedy it may have against the other Party for breach or non-performance under this Agreement, either Party shall have the right to terminate the Agreement immediately by giving the other Party notice in writing if the other Party should enter into liquidation, either voluntary or compulsory, or become insolvent or enter into composition or corporate reorganization proceedings or if execution be levied on any goods and effects of the other Party or the other Party should enter into receivership. Such notice of termination shall be given without undue delay after the circumstance constituting the breach was or should have been known to the aggrieved Party.

Effects of Termination

At the termination or expiry of the Agreement and/or license, regardless of the reason for which the Agreement is terminated shall:

(a) The Licensee’s right to use and access to the Licensed Program immediately expire;

(b) The Licensee immediately pay all outstanding debts to InfraSight Labs; and

(c) The Licensee immediately completely remove the Licensed Program and all related files related to the Licensed Program from its domains, and return all material and documents provided by InfraSight Labs regarding the Licensed Program to InfraSight Labs. The Licensee hereby also undertakes that upon termination of this Agreement erase and delete all information, data produced by the Licensed Program or such like, regarding the Licensed Program.

Miscellaneous

The Agreement constitutes the entire agreement between InfraSight Labs and the Licensee relating to the subject matter hereof and supersedes and cancels any and all previous or collateral agreements, negotiations, commitments, representations or understandings between the parties, with respect to the Agreement and the subject-matter hereof.

InfraSight Labs reserve the right to make changes to this agreement at any time. Such changes shall not affect the licensee until after the valid license period has expired or from the time of renewal of the license period.

In the event that any provision of the Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render the Agreement unenforceable or invalid as a whole.

Disputes

This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the substantive laws of Sweden, excluding its conflict of laws principles providing for the application of the laws of any other jurisdiction. Any dispute concerning interpretation or application of the Agreement or legal matters connected therewith shall be governed by and construed in accordance with the substantive laws of Sweden.

Any, dispute, controversy or claim arising out of or in connection with the Agreement, or breach, termination or invalidity thereof, shall be finally settled by the District court of Malmö, Sweden and the proceedings and all related communications shall be held in Swedish.