PARTIES
1. [[INDIVIDUAL NAME] of [address]] OR [[COMPANY NAME], a company incorporated in [xxxxxxx] under the registration number [registration number]) having its registered office at [address]] (the “Licensee“); and
2. KAIRNTECH SAS, a French company registered under the number 844 751 636 at the Grenoble Commercial Register having its head office at 29 chemin du Vieux Chêne, 38240 Meylan-France, or any of its 100%-owned subsidiary, here after referred as the “Licensor ”.
AGREEMENT
1. Definitions
1.1 In this Agreement, except to the extent expressly provided otherwise:
“Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;
“Business Day” means any weekday other than a bank or public holiday in France;
“Business Hours” means the hours of 09:00 to 17:00 Paris Time on a Business Day;
“Error” means:
Blocking error: an error which makes the use of the Platform by the Licensee impossible. This kind of errors is qualified Critical.
Cumbersome error: an error which makes the use of a feature impossible. This kind of errors is qualified High Priority.
Non-blocking and non-cumbersome error: All the other errors. These errors are qualified Low Priority.
“Fees” means the following amounts:
(a) the amounts specified in Part 2 of the Software License Particular Conditions; and
(b) such amounts as may be agreed by the parties in writing from time to time;
“Documentation” means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the Licensee;
“Effective Date” means the date of execution of this Agreement as mentioned in the Software License Particular Conditions ;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, and rights in designs);
“Schedule” means any schedule attached to the main body of this Agreement;
“Software” means the software identified in Part 1 of the Software License Particular Conditions in object code format.
“Software Defect” means a defect, error or bug in the Software having an adverse effect OR a material adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Licensee or any person authorised by the Licensee to use the Software;
(b) any use of the Software contrary to the Documentation by the Licensee or any person authorised by the Licensee to use the Software;
(c) a failure of the Licensee to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;
“Software License Particular Conditions” is always attached to the General Terms and Conditions For Software License Maintenance and SLA agreement and complemented it.
“Software Specification” means the specification for the Software set out in the Software License Particular Conditions and in the Documentation, as it may be varied by the written agreement of the parties from time to time;
“Term” means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2.
2. Term
2.1 This Agreement shall come into force upon the Effective Date.
2.2 This Agreement shall continue in force until the anniversary date as defined in schedule the Software License Particular Conditions, 2) Financial provisions, until its termination.
3. Supply of Software
3.1 The Licensor shall make the Software available for download by the Licensee during the whole of the period of 10 Business Days following the Effective Date, and shall provide to the Licensee such assistance in relation to the download of the Software as the Licensee may reasonably request.
4. License
4.1 The Licensor hereby grants to the Licensee from the date of supply of the Software to the Licensee until the end of the Term a worldwide, non-exclusive license to:
(a) install a single instance of the Software;
(b) use a single instance of the Software in accordance with the Documentation;
(c) create, store and maintain up to [x] back-up copies of the Software;
4.2 The Licensee may sub-license the rights granted in Clause 4.1 to any third party for the purposes of hosting the Software and supporting the Licensee’s use of the Software in accordance with this Agreement only. Any such sub-license shall automatically terminate upon the termination of the license in Clause 2.2.
4.3 The license granted by the Licensor to the Licensee in Clause 4.1 is subject to the limitations regarding the number of installations, the identity of users and the number of concurrent users set out in the Software License Particular Conditions.
4.4 The Software may only be used by the officers and employees of the Licensee, and the officers and employees of any third party for the purposes of hosting the Software and supporting the Licensee’s use of the Software in accordance with this Agreement only.
4.5 Save to the extent expressly permitted by this Agreement or required by applicable law on a non-excludable basis, any license granted under this Clause 4 shall be subject to the following prohibitions:
(a) the Licensee must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;
(b) the Licensee must not alter, edit or adapt the Software; and
(c) the Licensee must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software.
4.6 The Licensee shall be responsible for the security of copies of the Software supplied to the Licensee under this Agreement and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this Agreement.
5. No assignment of Intellectual Property Rights
5.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the Licensee, or from the Licensee to the Licensor.
6. Charges
6.1 The Licensee shall pay the Fees to the Licensor in accordance with this Agreement.
6.2 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Licensee to the Licensor.
6.3 The Licensor may elect to vary Fees by giving to the Licensee not less than 30 days written notice of the variation on any anniversary of the date of execution of this Agreement providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 5% per annum.
7. Term of Payments
7.1 The Licensor shall issue invoices for the Charges to the Licensee in advance of the period to which they relate.
7.2 The Licensee must pay the Charges to the Licensor within the period of 30 days following the issue of an invoice in accordance with this Clause 7.
7.3 The Licensee must pay the Fees by bank transfer using such payment details as are notified by the Licensor to the Licensee from time to time.
7.4 If the Licensee does not pay any amount properly due to the Licensor under this Agreement, the Licensor may charge the Licensee interest on the overdue amount at the rate of 5% per annum above the Central European Bank base rate from time to time.
8. Warranties
8.1 The Licensor warrants to the Licensee that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
8.2 The Licensor warrants to the Licensee that:
(a) the Software as provided will conform in all respects with the Software Specification;
(b) the Software will be supplied free from Software Defects and will remain free from Software Defects for a period of at least 12 months following the supply of the Software;
(c) the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(d) the Software shall incorporate security features reflecting the requirements of good industry practice.
8.3 The Licensor warrants to the Licensee that the Software, when used by the Licensee in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under law as defined in 15.7 and 15.8.
8.4 The Licensor warrants to the Licensee that the Software, when used by the Licensee in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
8.5 If the Licensor reasonably determines, or any third party alleges, that the use of the Software by the Licensee in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Licensor may acting reasonably at its own cost and expense:
(a) modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification; or
(b) procure for the Licensee the right to use the Software in accordance with this Agreement.
8.6 The Licensee warrants to the Licensor that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
8.7 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
9. Acknowledgements and warranty limitations
9.1 The Licensee acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
9.2 The Licensee acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be entirely secure.
9.3 The Licensee acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software.
9.4 The Licensee acknowledges that the Licensor will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Software; and, except to the extent expressly provided otherwise in this Agreement, the Licensor does not warrant or represent that the Software or the use of the Software by the Licensee will not give rise to any legal liability on the part of the Licensee or any other person.
10. Limitations and exclusions of liability
10.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
10.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in this Agreement:
(a) are subject to Clause 9.4; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
10.3 The Licensor shall not be liable to the Licensee in respect of any loss of profits or anticipated savings.
10.4 The Licensor shall not be liable to the Licensee in respect of any loss of revenue or income.
10.5 The Licensor shall not be liable to the Licensee] in respect of any loss of use or production.
10.6 The Licensor shall not be liable to the Licensee in respect of any loss of business, contracts or opportunities.
10.7 The Licensor shall not be liable to the Licensee in respect of any loss or corruption of any data, database or software.
10.8 The Licensor shall not be liable to the Licensee in respect of any special, indirect or consequential loss or damage.
11. Termination
11.1 Either party may terminate this Agreement by giving to the other party at least 30 days’ written notice of termination.
11.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
11.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement)
11.4 The Licensor may terminate this Agreement immediately by giving written notice to the Licensee if:
(a) any amount due to be paid by the Licensee to the Licensor under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Licensor has given to the Licensee at least 30 days’ written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 11.
12. Effects of termination
12.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 7.2, 7.3, 7.4, 9, 12, 15 and 16.
12.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
12.3 For the avoidance of doubt, the licenses of the Software in this Agreement shall terminate upon the termination of this Agreement; and, accordingly, the Licensee must immediately cease to use the Software upon the termination of this Agreement.
12.4 Within 10 Business Days following the termination of this Agreement, the Licensee shall:
(a) return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing the Software; and
(b) irrevocably delete from all computer systems in its possession or control all copies of the Software,
and if the Licensor so requests the Licensee shall procure that a director of the Licensee certifies to the Licensor, in a written document signed by that person and provided to the Licensor within 5 Business Days following the receipt of the Licensor’s request, that the Licensee has fully complied with the requirements of this Clause 12.4.
13. Tacit Renewal
This Agreement shall renew automatically with respect to each series set forth in the Software License Particular Conditions, on the same terms, without either Licensee or Licensor having an obligation to act. This renewal happens at the Anniversary date defined in the Software License Particular Conditions 2) Financial Provision- subject the Licensee has not terminated the contract in the manner stipulated in article 11. The Software License Particular Conditions will be updated with a new anniversary date and if necessary, with new Software license Specifications.
14. Notices
14.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 14.2):
(a) delivered personally or sent by courier email, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting, providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
14.2 The parties’ contact details for notices under this Clause 14 are as follows:
(a) in the case of notices sent by the Licensee to the Licensor, [contact details]; and
(b) in the case of notices sent by the Licensor to the Licensee, [contact details].
14.3 The addressee and contact details set out in Clause 14.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 14.
15. General
15.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
15.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted.
15.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
15.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
15.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
15.6 This Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
15.7 This Agreement shall be governed by and construed in accordance with the French law.
15.8 The courts of France shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
16. Interpretation
16.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
16.2 The Clause headings do not affect the interpretation of this Agreement.
16.3 References in this Agreement to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
16.4 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
EXECUTION
The parties have indicated their acceptance of this Agreement by executing it below.
SIGNED BY [[individual name] on [……………], the Licensor] OR [[individual name] on [……………], duly authorised for and on behalf of the Licensor]:
………………………………….
SIGNED BY [[individual name] on [……………], the Licensee] OR [[individual name] on [……………], duly authorised for and on behalf of the Licensee]:
………………………………….
SCHEDULE 1
SOFTWARE Maintenance Contract
- Maintenance Services
1.1 The Licensor shall provide the Maintenance Services to the Licensee during the Term.
1.2 The Licensor shall provide the Maintenance Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the software’s industry.
1.3 The Licensor shall provide the Maintenance Services in accordance with Schedule 2 (SLA).
1.4 The Licensor may suspend the provision of the Maintenance Services
(i) if any amount due to be paid by the Licensee to the Licensor under this Agreement is overdue, and the Licensor has given to the Licensee at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
(ii) Upon the termination of this Agreement.
- Scope of the Maintenance Contract
2.1 The Licensor shall only perform maintenance services on Software that belongs to it outright or that has been designed by the Licensor to meet the Licensee’s specific requirements and for which a user license has been granted to the Licensee.
Any work carried out by the Licensor pursuant to a malfunction which cannot be reliably traced to the Software supplied shall not be covered by the maintenance contract. (For instance, services performed to remedy malfunctions arising from the interaction between several systems or components within which the Licensee has integrated or associated a Software application.)
2.2 The maintenance service shall not include:
– supplying new products or optional modules featuring in the Licensor’s catalogue;
– training the Licensee’s staff;
– furnishing of software functions ;
– restructuring, reorganizing or otherwise addressing various anomalies in the files;
– re-printing or re-issuing the Documentation;
– any services that are not specifically described in this agreement, such as adaptations or extensions requested by the Licensee.
2.3 Services performed pursuant to the following circumstances shall not be included in the maintenance service, and therefore in the maintenance service:
– malfunctions resulting from the Licensee’s failure to abide by a manufacturer’s guidelines, the operating environment specifications or the rules governing the proper use of the Software;
– the Licensee or its client’s failure to abide by the obligations incumbent upon it under the maintenance contract;
– malfunctions of the Software resulting from a breakdown in the hardware or operating system or resulting from an incident such as flooding, earthquakes, hailstorms, riots, war, chemical contamination or any other event constituting an Act of God or unforeseeable event;
– malfunctions of the Software resulting from maintenance or work such as additions or modifications carried out on the Licensor’s Software by persons unrelated to the Licensor or without the Licensor’s express authorization;
– malfunctions resulting from modifications made to files or tables without using the Software.
- Characteristics of our Maintenance Contracts
3.1 Maintenance Contracts shall come into force upon on the day of its delivery.
Maintenance Contracts shall last during the Term.
3.2.The maintenance work shall be carried out at the location specified here under;
Xxxxxxxxxxxx
xxxxxxxxxxxxx
3.3 The maintenance shall comprise all the services provided by the licensor to ensure the proper performance of the Maintenance, with the exception of the travel and boarding costs incurred by the Licensor’s staff where maintenance services are performed at the Licensee’s premises; these shall be billed separately.
3.4 The Licensee shall notify the Licensor on the start date of the Maintenance Contract of its nominated contact who shall liaise with the licensor and represent the Licensee in all matters related to the technical aspects of the maintenance service and process.
- Licensee obligations
4.1 Save to the extent that the parties have agreed otherwise in writing, the Licensee must provide to the Licensor, or procure for the Licensor, such:
(a) co-operation, support and advice;
(b) information and Documentation; and
(c) governmental if any, legal and regulatory licenses, consents and permits,
as are reasonably necessary to enable the Licensor to perform its obligations under this Agreement.
4.2 The Licensee must provide to the Licensor, or procure for the Licensor, such access to the Licensee’s computer hardware, software, networks and systems as may be reasonably required by the Licensor to enable the Licensor to perform its obligations under this Agreement.
The Licensee shall notify the licensor immediately whenever the identity of this contact shall change.
4.3 Prior to carrying out any work, the licensor may request that the Licensee provides it with any elements enabling us to reproduce the fault encountered on the machine; the Licensor may also request, where applicable, that the Licensee restore the system or the configuration in which the Software is or shall be incorporated, and in general, may call upon the Licensee to do whatever is required to enable it to perform the Maintenance properly.
5. Fees
The maintenance is provided by the Licensor at no consideration.
Schedule 2
SERVICE LEVEL AGREEMENT
- Agreement Overview
This Service Level Agreement (“SLA” or “Agreement”) between Kairntech and Licensee is for the provisioning of IT services required to support and sustain the Maintenance as defined in schedule 1.
This SLA remains valid until superseded by a revised agreement mutually endorsed by the stakeholders as defined in Article 3.
This SLA outlines the parameters of all IT services covered as they are mutually understood by the primary stakeholders. This Agreement does not supersede current processes and procedures unless explicitly stated herein.
- Goals & Objectives
The purpose of this SLA is to ensure that the proper elements and commitments are in place to provide consistent IT service support and delivery to the Licensee by the Licensor.
The goal of this SLA is to obtain mutual agreement for IT service provision between the Licensor and the Licensee.
The objectives of this Agreement are to:
- Provide clear reference to service ownership, accountability, roles and/or responsibilities.
- Present a clear, concise and measurable description of service provision to the Licensee.
- Match perceptions of expected service provision with actual service support & delivery.
- Stakeholders
The following Licensor and the Licensee will be used as the basis of the Agreement and represent the stakeholders associated with this SLA:
IT Licensor : xxxxxx.
IT Licensee(s): XXXXX
- Duration
This Agreement is valid from the Effective Date outlined herein and is valid until the Term.
- Service Agreement
The following detailed service parameters are the responsibility of the Licensor in the ongoing support of this Agreement.
5.1. Service Scope
The following Services are covered by this Agreement;
- Monitored email support: support@kairntech.com
- Emergency assistance in case emergency request coming from email support
- Email alert
- Weekly system health check
- Security controls
5.2. Licensee Requirements
Licensee responsibilities and/or requirements in support of this Agreement include:
- Payment for all support costs at the agreed interval.
- Reasonable availability of Licensee representative(s) when resolving a service related incident or request.
5.3. Licensor Requirements
Licensor responsibilities and/or requirements in support of this Agreement include:
Meeting response times associated with service related incidents.
- Appropriate notification to Licensee for all scheduled maintenance.
5.4. Service Assumptions
Assumptions related to in-scope services and/or components include:
- Changes to services will be communicated and documented to all stakeholders.
- Service Management
Effective support of in-scope services is a result of maintaining consistent service levels. The following sections provide relevant details on service availability, monitoring of in-scope services and related components.
6.1. Service Availability
Coverage parameters specific to the service(s) covered in this Agreement are as follows:
- Email support: Monitored 9:00 A.M. to 5:00 P.M (Paris Time). Monday – Friday during Business Day
- Emails received outside of office hours will be collected, however no action can be guaranteed until the next working day
6.2. Service Requests
In support of services outlined in this Agreement, the Licensor will respond to service related incidents and/or requests submitted by the Licensee within the following time frames:
- 0-8 hours (during business hours) for Blocking error .
- Within 5 working days for Cumbersome error.
- Next Upgrade for Non-blocking and non-cumbersome error.
Remote assistance will be provided in-line with the above timescales dependent on the priority of the support request.