Termini e Condizioni
SFERANET DWC LLC (“Sferanet DWC”) distributes various software products for which the Licensee wishes to acquire a license. For the establishment of the rights and duties of the Parties with regard to the use such software products in question, as well as with regard to the acquisition of hardware and software support, the Parties agree as follows, as evidenced by the reference of these terms within the valid order documents directly or via reference to Sferanet DWC generated quote or proposal documents.:
1. Right of use
Conditioned upon this agreement and Licensee’s payment of all fees, Sferanet DWC grants the Licensee a non-exclusive, non-transferable, non-sub-licensable right to use the Software in object-code form only. Within the scope of the license the Licensee may use the Software only and exclusively for the purposes (production, evaluation, testing, demonstration, disaster-recovery), for the duration and to the extent for which the Licensee has paid the corresponding fees and for which one or more valid order documents exist, describing the licensed software products („the Software“) as well as any restrictions of use (e.g. users and nodes limit or limitation of the simultaneous use of a client module). Where the License is limited on an users basis, Licensee’s authorized users limit shall pertain to the agreed period commencing from the date the Software is delivered to Licensee. In the case that the Licensee wishes to use the Software in a different hardware- or in another network structure, the Licensee shall inform Sferanet DWC prior to such change in writing and shall immediately and irrevocably delete the previously used Software from the prior hardware- or network structure. Sferanet DWC may attach a license code to the Software in order to prevent unauthorized use. Under no circumstance may the Licensee exceed or circumvent the applicable license restrictions. Any features (characteristics) or functionality to be included in any future or subsequent releases of the Software are at the sole discretion of Sferanet DWC and nothing in this agreement should be interpreted or construed to include any right on the Licensee part to receive any specific features or functionality in the future.
2. Support services
In consideration of payment of appropriate fees or software license subscription Sferanet DWC shall perform support services for the Licensee with regard to Software or Hardware specified in the respective order documents („Support Services“). The scope of the Support Services are described in the Sferanet DWC Support Commitment („Support Commitment“), which constitutes an integral part of the present agreement. The current version of which is made available to Licensee at all time at www.Sferanet.ae. Sferanet DWC may make minor revisions to the Support Commitment which are legally or technically necessary without notice to the Licensee.
3. Professional services
All professional services engagements shall be performed under a separate professional services agreement mutually agreed upon in writing by authorized representatives of each of us. Any fees for Software hereunder shall be due and payable under the terms set forth in Section 4 of this agreement, and shall not be dependent or contingent in any way upon the performance or completion of any separate professional services engagement.
4. Fees, payment and deliverables
The fees for the right of use as well as for the initial term of Support Services are as stated in the relevant order documents. The fee for the rights of use shall be invoiced upon delivery and the yearly fee for the Support Services (or other period mutually agreed upon) shall be invoiced at the beginning of each contract year in advance. The Licensee shall pay the agreed fees within a period of 30 days from date of invoice unless expressly agreed otherwise between the parties. The Licensee shall bear all sales taxes, use taxes, value added taxes or excise duties as well as any other taxes, duties or costs which are connected to this agreement plus expenses and export- or import duties arising in connection with the shipping with the sole exemption of all income taxes concerning Sferanet DWC. Default in payment shall justify a penalty in the amount of 0,5% per month, payable on demand. In the case that the Licensee doubts the correctness of the invoiced amount he shall raise his objections in writing within a period of 30 days from the date of the invoice stating the reasons for his doubts, otherwise the invoiced claim shall be deemed accepted. Objections shall not prevent the maturity of the invoiced amount. Support Services are interrupted as soon as support contract term expires. In case of perpetual license only, should the Licensee seek to have Support Services reinstated following expiration, the Licensee agrees to the following: a) to pay a reinstatement equal to 100% of the current annual support fee and the sum of the unpaid support fees from the date of expiration to the date of reinstatement; and b) to pay fees for at least one additional year of Support Services from the date of reinstatement. Delivery is effected by handover of the Software or Hardware to the carrier or by provision of the Software for download; with that, whichever is earlier, Sferanet DWC`s performance is effected and therefore the risk is passed on to the Licensee.
The Software is proprietary commercial software developed at private expense by Sferanet DWC and/or its licensors. Sferanet DWC reserves all intellectual property rights to the Software and its documentation under Copyright Laws and international copyright treaty provisions as well as trade secret, industrial property, unfair competition or similar laws applicable to the locality where you use it. No product or service provided under this agreement will be deemed a “work-made-for-hire” and any and all inventions, discoveries or know-how deriving from Sferanet DWC’s performance of the services hereunder or any Statement of Work for consulting services, and the intellectual property rights associated therewith, shall be the sole and exclusive property of Sferanet DWC. In accordance with copyright law the Licensee may not, and the Licensee may not allow any third party to, 1) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas of the Software by any means whatsoever; 2) remove any product identification, copyright legend or other notices; 3) rent, lease, lend, or sublicense the Software to third parties; 4) modify or create a derivative work of any part of the Software except as specified in the user documentation or as permitted under separate license agreement with Sferanet DWC; or 5) attempt to use the Software, or any portion thereof, in excess of its licensed capacity. Except as may be reasonably required to use the Software in accordance with the License as strictly required for back-up and archival purposes, the Licensee may not copy the Software or any portion thereof.
6. Intellectual Property Indemnification
- Sferanet DWC will defend, at its own expense, any claim, suit or proceeding brought against the Licensee to the extent it is based upon a claim that the Licensee use of the Software pursuant to this agreement infringes upon any patent, copyright or trade secret of a third party. The Licensee agrees to promptly notify Sferanet DWC in writing of any such claim or action and give Sferanet DWC full information and assistance in connection therewith. Sferanet DWC will have the sole right to control the defense of, and to settle or compromise, any such claim or action. If the Licensee complies with the provisions hereof, Sferanet DWC will pay all damages, costs and expenses finally awarded to third parties against the Licensee in such action. If the Software is, or in Sferanet DWC’s opinion might be, held to infringe as set forth above, Sferanet DWC may, at its option, replace or modify the Software so as to avoid infringement, or procure the right for the Licensee to continue to use the Software. If neither of such alternatives is, in Sferanet DWC’s opinion, commercially practicable, the Licensee will return the infringing Software to Sferanet DWC, and Sferanet DWC’s sole liability, in addition to its obligation to pay awarded damages, costs and expenses as set forth above, shall be to refund the license fees the Licensee paid to Sferanet DWC hereunder, depreciated on a 3-year, straight-line basis.
- Sferanet DWC will have no liability for any claim of infringement arising as a result of a) the Licensee’s use of the Software in combination with any items not supplied by Sferanet DWC; b) any modification of the Software at Licensee’s request; c) use of other than the latest revision of the Software if use of the latest revision would avoid the infringement; or d) use outside the scope of the granted licenses.
- The foregoing states Sferanet DWC’s entire liability concerning infringement of intellectual property rights, including but not limited to, patent, copyright and trade secret rights.
7. Limited warranty
- Rights of use of Software Subject to the limitations stated herein, Sferanet DWC warrants to the Licensee that, for a period of ninety days from the date of receipt, the Software will materially conform to Sferanet DWC’s then-current documentation for such Software. Due to the fact that according to the current state of the art it is not possible to produce software which is error-free for all application conditions, Sferanet DWC does not warrant that the use of the Software will be uninterrupted and error-free at all times. The Licensee shall be responsible for the selection of the Software to achieve its intended results or requirements. This limited warranty is void if failure of the Software has resulted from accident, abuse or misapplication
- Support Services shall be performed in a good and workmanlike manner in accordance with the generally acknowledged standards of the industry. Warranty claims shall not be justified if the Licensee or third parties with his knowledge maintain or modify the Software or Hardware without the explicit written consent of Sferanet DWC. Sferanet DWC shall not assume any claims for defects resulting from improper or inappropriate use, non-observance of application instructions, inaccurate or careless treatment, normal wear or due to force majeure. If Sferanet DWC objectively fails to provide the Support Services in spite of having been granted a reasonable grace period, the Licensee shall be entitled to terminate the Support Services for the respective Software or Hardware by registered letter. In such case Sferanet DWC shall reimburse to the Licensee the Support Service fee for the concerned Software or Hardware starting from the month in which the respective grace period was granted to Sferanet DWC. This shall not affect this Agreement regarding the Software or Hardware not concerned.
- General limitations of warranty Sferanet DWC shall not assume any warranty and representation for errors, disturbances or damages resulting from non-observance of the installation requirements, improper operation, contamination with computer viruses, abnormal operating conditions as well as from transport damages of data carriers (if any). Defects shall be notified in writing immediately, within four days however after their discovery or after they could have been discovered with due care. Sferanet DWC shall have the choice to either replace the Software or Hardware to fix it or to create an interim solution; a possible replacement however shall not constitute a prolongation of warranty. The Licensee shall support Sferanet DWC in all its endeavours to fix and/or to replace the Software or Hardware by providing any and all necessary information and documentation, by allowing access to the Software or Hardware and by contributing in any other appropriate way. Any correction shall be deemed failed if two attempts for correction within an appropriate period of grace have remained without success. Under the circumstance that Sferanet DWC can successfully prove that no defect or mistake existed which Sferanet DWC was responsible for according to this agreement, Sferanet DWC shall have the right to demand the reimbursement of its expenses incurred during the correction at the standard rates of Sferanet DWC.
8. Limitation of liability
The liability of Sferanet DWC for any and all damages shall be limited as follows:
- Notwithstanding sections 8.2 to 8.7 below in cases of intentional acts, claims under product liability laws, malicious non-disclosure of a defect, as well as claims based on damage to life, body or health, Sferanet DWC’s liability shall be determined in accordance with statutory law.
- In case of gross negligence, the liability of Sferanet DWC shall be limited to the reimbursement of typical foreseeable damages.
- The Licensee will have to prove the existence of intent or gross negligence.
- Liability for slight negligence is excluded.
- Sferanet DWC shall have no liability for any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: (a) loss of profits and consequential damages, (b) incidental loss and loss of anticipated savings, (c) loss of business opportunity, (d) loss of goodwill and loss of data.
- The total liability of Sferanet DWC shall in no circumstances exceed license fee which the Licensee had to pay in that same contract year. This shall apply regardless of whether the liability results from contract, illegitimate action (including negligence) or otherwise.
- Damage claims shall fall under the statute of limitations one year after the cause for the claim has occurred.
9. Force majeure
Neither party to this agreement shall be liable for non-performance to the extent that such non-performance is caused by events or conditions beyond that party’s control, provided such party promptly notifies the other thereof and makes reasonable efforts to perform.
10. Term and termination
- Rights of use of Software The right to use granted and the accompanying rights and duties shall start upon signing of this agreement and shall end 30 days after written notice of Sferanet DWC if the Licensee violates a material provision of the contract (in particular a violation of the licence) and if he fails to remedy such violation within the said period of 30 days.
- Support Services and the accompanying rights and duties shall start upon signing of this agreement and shall be concluded for an indefinite period of time. The initial duration of one year regarding the Support Services shall start upon delivery of the Software or Hardware. In the case that Sferanet DWC generally provides the clients with Support Services for the Software or Hardware, this agreement shall be renewed on the due date automatically for another year with regard to Support Services, unless it has been terminated in writing 30 days before the expiry of the current term. Sferanet DWC will invoice the Licensee the fees for the renewal term sixty days prior to expiry of each term.
- Sferanet DWC shall be entitled to extraordinary termination of the agreement if (i) the Licensee fails to pay due invoices of Sferanet DWC within ten days from receipt of a written notice on the outstanding payment or (ii) there is a material breach of the contract on the part of the Licensee, which is not remedied within thirty days from notice of the existence of such a breach,
- In the event of termination of this agreement or parts thereof, regardless of cause, the Licensee shall at his own expenses immediately destroy all copies of the Software. Sections 5, 6, 7, 8,11 and 12 of this agreement, and the obligations embodied therein, will survive any termination of this agreement.
11. Secrecy and confidential information
- Each party acknowledges that the other’s business depends on the preservation of its trade secrets and other confidential information (the “Secrets”). Both Parties will each take any and all reasonable action to protect and preserve as confidential during or after the term of this Agreement all of the Secrets of the other disclosed to or known by such party or in such party’s possession or control, whether wholly or partially developed by such party or provided to such party, except to the extent: (a) authorized to do so in writing by the other party; (b) such Secret was already known by or generally available as part of the public domain prior to its disclosure to such party, or becomes so available through no fault of such party; (c) such Secret is independently developed by such party or is received from a third party with no breach of a duty owed to the other party; or (d) such Secret is required by law to be divulged by such party, provided that such party gives the other party as much prior notice of such requirement and opportunity and cooperation in contesting the same as practicable.
- Each party will mark with appropriate legends any written documents containing matters it considered its Secrets. Neither party will use nor allow others to use any of the Secrets of the other party for any purpose other than as contemplated hereby.
12. General terms
- Failure by either of us to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision.
- The Licensee may not assign this Agreement or any of the rights granted hereunder without the prior written approval of Sferanet DWC. The Licensee acknowledges that Sferanet DWC may employ agents, subcontractors, suppliers or partners in order to exercise rights and fulfil obligations in connection with this agreement.
- All notices under this Agreement shall be in writing, shall reference this Agreement, and shall be deemed given: 1) when delivered personally; 2) when sent by confirmed facsimile transmission; 3) five days after having been sent by registered or certified mail, return receipt requested; or 4) one day after deposit with a commercial overnight carrier, with written verification of receipt. All communications may be sent to the address firstname.lastname@example.org, subject to modification by giving notices as provided herein.
- This Agreement, including all attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and it shall supersede any and all conflicting provisions of any declarations and/or order document(s) between the parties. This Agreement may be modified, amended or waived only by a written instrument signed by duly authorized representatives of both parties.
- Place of performance shall be the registered office of Sferanet DWC.
- The Licensee may only set off claims of Sferanet DWC with counterclaims which have either been determined by a Court or expressly acknowledged in writing by Sferanet DWC. The Licensee shall not be entitled to retain his contractual performances in order to obtain or secure the performances of Sferanet DWC.
- The Parties shall remain independent contracting partners. The Parties herewith undertake to refrain from enticing away or from engaging employees of the other party within one year from completion of the performance.
- If any provision of this Agreement shall be adjudged by a court of competent jurisdiction to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
- This agreement shall be subject to the Laws of Dubai U.A.E. and shall be established in accordance with the provisions of the Law of Dubai U.A.E. The parties specifically agree that that body of law known as the United Nations Convention on the International Sale of Goods shall not apply to this agreement. Any dispute or legal action resulting from or in connection with this agreement shall be decided by arbitration by a single judge in Dubai U.A.E. according to the procedural rules of the international Chamber of Commerce (ICC). Any arbitration award passed after such procedure may be brought before any competent Court, provided that punitive damages may not be attributed and provided that each party may obtain an injunction from any competent Court and that it may file an application for equity in order to protect its own rights. The prevailing party in any arbitration shall be entitled to an award of all costs, fees and reasonable expenses, including attorney’s fees, incurred as a result of the arbitration or any action to enforce the arbitration award.
Licensee agrees that Sferanet DWC may, from time to time, but no more frequently than one (1) time per year, upon reasonable advance written notice to Licensee, audit Licensee´s usage of the Software, at Licensee´s facilities and during Licensee´s regular business hours, to verify Licensees compliance with the terms of this Agreement.
ver. 1.0 April 2022