1.1 This End User Software License Agreement (“Agreement”) is a legal agreement between the entity referring to in any ordering document (the “Order Form”) as customer (“Licensee”) and Triplequote Sàrl, a Swiss company headquartered in EPFL Innovation Park, building C, c/o Fondation EPFL Innovation Park, 1015 Lausanne, Switzerland (“Licensor”, and each individually a “Party” and together the “Parties”).
1.2 By (i) downloading and installing the Licensor’s software “Triplequote Hydra” and/or documentation and any of their updates provided by Licensor to Licensee under this Agreement (the “Licensed Products”), Licensee agrees to be bound by the terms of this Agreement.
1.3 In the event of a conflict or contradiction between the terms of this Agreement and any Order Form, the terms of this Agreement will govern and control.
2 GRANT OF LICENSE
2.1 Subject to the terms and conditions of this Agreement, Licensor grants to Licensee a personal, non-exclusive, with right of sublicense, only to individual end-users to be designated from time to time in writing by Licensee to Licensor (the “Authorized End User(s)”), and non-transferable license, to use the Licensed Products and, unless otherwise agreed in writing, solely on Licensee’s and the Authorized End Users’ internal systems (the “License”).
2.2 Absent Licensor’s prior written agreement, Licensee is expressly prohibited from using the Licensed Products on behalf of, or for the benefit of, third parties not licensed to use the Licensed Products (e.g. Licensee may not use in principle the Licensed Products for consulting purposes or project proof of concepts or for such similar arrangements where Licensee is performing services for an unlicensed third party).
2.3 If Licensee acquired the Licensed Products subject to limited use restrictions (e.g. use limited to certain functionalities, modules or options) agreed to in any Order Form or separate documentation, the License to use the Licensed Products shall be limited by such restrictions.
3 THIRD PARTY SOFTWARE
3.1 The Licensed Products may contain a computer program, computer software, computer font, including its code, objects including any images, photographs, templates, animations, video, audio, music, extensions, text and software incorporated into the Licensed Products, and electronic documentation developed, distributed and/or licensed by third parties (“Third Party Software”). The terms and conditions associated with such Third Party Software are expressly stated in the Licensed Products, and Licensee shall use such Third Party Software under such terms and conditions. Such terms and conditions are made a part of this Agreement and attached hereto in Appendix 1 for reference. By accepting this Agreement, Licensee also accepts such terms and conditions.
3.2 Nothing in this Agreement shall restrict, limit or otherwise affect any rights or obligations that Licensee may have, or conditions to which Licensee may be subject, under any applicable open source licenses to any open source code contained in the Licensed Products.
Subject to payment of all applicable license fees to Licensor as agreed in any Order Form, and as long as Licensee complies with the terms of this Agreement, Licensor shall provide to Licensee from time to time free of charge updates, which releases shall be solely determined by Licensor at its sole discretion.
5 INTELLECTUAL PROPERTY
5.1 Nothing in this Agreement shall operate to assign or transfer any intellectual property rights from Licensor to Licensee.
5.2 Subject to Section 3 above, all right, title, interest in and to the Licensed Products, or any results, in any format or medium currently available and hereinafter to be invented, of any services performed by Licensor under this Agreement (the “Services”), including all intellectual property rights thereto, shall remain the sole ownership of Licensor.
5.3 Should Licensee become aware of an infringement or of a serious risk of infringement by a third party of any intellectual property rights pertaining to the Licensed Products or the Services, Licensee shall immediately inform Licensor and provide all useful information on such infringement or risk of infringement. Licensor shall have the exclusive power to decide on the initiation of any claims or proceedings at Licensor’s expense for the purpose of protecting such intellectual property rights against third party infringers. Licensee shall, at its own costs, provide Licensor with all reasonable assistance which would be required in the course of legal proceedings for the purpose of protecting the said intellectual property rights according to the instructions that shall be given by Licensor.
5.4 For the term of this Agreement, Licensor shall be authorized on a non-exclusive, royalty-free, worldwide, non-transferable, personal basis, to use Licensee’s trade name, trademarks and logos for purpose of public promotion, marketing and advertising related directly or indirectly to the performance of this Agreement, including the right for Licensor to use Licensee’s trade name, trademarks and logos on its website, commercial presentations and public relation actions thereof.
6 FINANCIAL CONSIDERATIONS, PLANS AND PACKAGES
6.1 Upon Effective Date (see Section 16.1), Licensor will grant to Licensee a free of charge License for the limited purposes of internal evaluation and testing, for an evaluation period of thirty (30) days (the “Evaluation Period”).
6.2 After the Evaluation Period, the License may be granted by Licensor to Licensee on the Licensed Products on an annual basis for a subscription period of one (1) year.
6.3 Licensee agrees to pay the license fees for the Licensed Products and the fees for the Services as set forth and in accordance with each applicable Order Form.
6.4 Licensee shall pay Licensor all applicable fees under this Agreement within thirty (30) days upon receipt of Licensor’s invoice.
Licensee agrees that in case of Licensee’s default of payment within the abovementioned payment deadlines, Licensee shall pay to Licensor one percent (1%) per month, or the maximum amount permitted by law (whichever is less), on any undisputed amount that remains unpaid thirty (30) days after the expiration date of such abovementioned payment deadline of any invoice. Licensee agrees to reimburse Licensor for all costs (including attorney’s fees) incurred in collecting late payments.
6.5 All payments under this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Licensee agrees to bear and be responsible for the payment of all such charges.
7 LIMITED WARRANTY AND CONDITIONS
LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE LICENSED PRODUCTS IS AT THE LICENSEE’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH LICENSEE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED PRODUCTS AND ANY SERVICES PERFORMED OR PROVIDED BY LICENSOR ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED PRODUCTS AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY LICENSOR WILL MEET LICENSEE’S REQUIREMENTS, THAT THE OPERATION OF THE LICENSED PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED PRODUCTS OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
8 SUPPORT AND MAINTENANCE
8.1 Licensor will provide to Licensee free of charge limited technical support and maintenance Services with respect to the Licensed Products as follows: Licensee may report a problem or error to email@example.com at any time. Licensor will then develop its best efforts to fix and/or resolve the problem or error without warranty of any kind, in particular in terms of reaction time, intervention time or correction time.
8.2 Upon payment of fees as set forth in an applicable Order Form, Licensee may purchase “Triplequote Enterprise Support” technical support and maintenance Services as follows: Licensee may report a problem or error to firstname.lastname@example.org at any time. Licensor will then answer Licensee within one (1) Business Day and will with high priority develop its best efforts to fix and/or resolve the problem or error, e.g. to provide Licensee with a workaround, fix, patch or other proper solution like a new release or version of the Licensed Products, without warranty of any kind in terms of intervention time or correction time. For avoidance of doubt, a “Business Day” in this Section 8.4 means any day of the week from Monday to Friday, to the exclusion of public holidays of Canton of Vaud (Switzerland).
9.1 Either Party agrees that it will (i) keep confidential; (ii) not use other than for the purposes contemplated by this Agreement; and (iii) not disclose to any third party (and will use its best endeavors to prevent the disclosure or publication by its Authorized End Users) of any proprietary and/or non-public data or information relating to the activities of the other Party, trade secrets, documents, source codes, logos, images, business plans, database and statistics, software, reports, memorandum, know-how or technology, which is either marked “Confidential” or regarding which the information’s confidential character is apparent under the circumstances (“Confidential Information”).
9.2 Subject to Section 5.4 above, the Parties shall (i) keep all Confidential Information confidential at any time and shall not disclose Confidential Information, in whole or in part, to any third party, to the exception of the Authorized End Users provided they are bound by confidentiality rules as strict as those in this Agreement; (ii) not publish, disclose or divulge Confidential Information to any other third party; (iii) not use Confidential Information for any commercial or other purpose whatsoever; (iv) use Confidential Information solely for the purpose of performing this Agreement; and (vi) not copy any Confidential Information.
9.3 For the purpose of this Agreement, Confidential Information shall be deemed to exclude information which a Party can demonstrate by documentary evidence: (i) is, or becomes, public information other than as the result of the violation of this Agreement or other act or omission by such Party; (ii) was lawfully known to such Party without restriction on use or disclosure at the time of disclosure hereunder; (iii) is hereafter lawfully received by such Party from a third party authorized to make such disclosure and without restriction on use or disclosure; (iv) is approved for release by prior written consent from the disclosing Party; or (v) which is required to be disclosed by law, a court order or competent government authority, provided that in such case the receiving Party shall promptly inform the disclosing Party of such requirement of disclosure prior to the disclosure such that the disclosing Party has an opportunity to object to the production or disclosure through seeking a protective order.
9.4 Upon expiration or termination of this Agreement for whatever reason, or at the earlier request of the disclosing Party, the receiving Party shall, at its own costs and at the election of the disclosing Party, return or destroy all originals and copies of Confidential Information, or, in case of Confidential Information stored in electronic, magnetic or digital media, shall erase or render unreadable all materials furnished (including without limitation, working papers containing any Confidential Information or extracts therefrom) which contain Confidential Information.
10 DATA PROTECTION
The Parties shall comply with all applicable data protection or data privacy laws and regulations.
11 LIMITATION OF LIABILITY AND INDEMNIFICATION
11.1 Licensor’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to fees paid for the License within the last 12 months. Nothing in this provision shall limit or exclude Licensor’s liability (i) for fraud (ii) gross negligence or (iii) any liability which cannot be excluded by applicable law.
11.2 To the extent permitted by applicable law, in no event shall the Licensor be liable for any of the following losses or damage (whether such losses were foreseen, foreseeable, known or otherwise): loss of use, interruption of business, loss of actual or anticipated profit (including, without limitation, loss of profit on contracts), loss of revenue, loss of the use of money, loss of anticipated savings, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data, or indirect, special, incidental or consequential loss or damage of any kind, regardless of the form of action, whether in contract, tort (including, without limitation, negligence), strict liability or otherwise.
11.3 Licensee is fully and solely responsible and liable for the installation and use of the Licensed Products, including by its Authorized End Users and for the strict compliance of such installation and use with applicable law, notably with regard to data protection and copyright. Licensee will defend, indemnify and hold Licensor harmless from and against all liability, loss, cost, damage or expense, including reasonable attorney’s fees, arising from Licensee’s and its Authorized End Users’ installation and/or use of the Licensed Products, including any claims made by Licensee’s customers or other third parties.
11.4 This limited liability under this Section 11 shall not apply and Licensor’s liability shall be fully excluded, if (a) the Licensed Products are not used in accordance with applicable documentation; (b) a defect to the Licensed Products has been caused by Licensee’s malfunctioning equipment and/or system; or © Licensee has made modifications to the Licensed Products not expressly authorized in writing by Licensor. No employee, agent, or representative of Licensor has the authority to bind Licensor to any oral representations, warranties or conditions concerning the Licensed Products. Any written representation, warranty or condition not expressly contained in this Agreement shall not be enforceable.
12 AUDIT RIGHTS
Upon reasonable advance written notice, Licensor shall have the right to have a quarterly audit of Licensee’s use of the Software to verify Licensee’s compliance with this Agreement. Licensee shall make its systems and all applicable books, records and transaction logs available for such inspection during normal business hours at Licensee’s principal place of business. Any audit shall be at Licensor’s expense, unless it shows an underpayment by Licensee for the audited period in excess of 5%, in which case Licensee shall reimburse Licensor for such expenses.
Neither this Agreement nor any of Licensee’s rights, licenses or obligations hereunder may be assigned or delegated by Licensee to any third party, including without limitation in connection with a merger, acquisition, reorganization, outsourcing, change of control or under any other circumstance. Any such purported assignment or delegation shall be void and of no effect and shall constitute an incurable breach of this Agreement resulting in the automatic termination of this Agreement and all rights and licenses granted to Licensee hereunder.
14 FORCE MAJEURE
Neither Party shall be liable for any breach of this Agreement due to any circumstances outside Licensor’s reasonable control including but not limited to fire, acts of Government, war, military operation or riot, accidents, embargo, industrial actions, terrorist threat, hereinafter referred to as “Force Majeure”. In case of Force Majeure, each Party shall without delay notify and furnish the other Party in writing with all relevant information thereto.
The waiver by a Party of one breach or default by another Party under this Agreement will not constitute the waiver of any subsequent breach or default. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
16 TERM AND TERMINATION
16.1 Subject to Section 16.2 below, this Agreement shall enter into force upon downloading date of the Licensed Products (“Effective Date”) and shall remain valid until expiry of the Evaluation Period or if Licensee fails to comply with any terms of this Agreement.
16.2 If, after the Evaluation Period, the Licensed Products are provided to Licensee on a subscription basis (see Section 6.2 above), this Agreement shall remain valid until expiry of the applicable subscription period or if Licensee fails to comply with any terms of this Agreement, and unless otherwise specified in any Order Form, this Agreement shall automatically renew for one (1) year and so forth unless either Party notifies the other in writing of its intention not to renew by no later than sixty (60) days before the expiration of the then-current subscription period.
16.3 Upon termination of this Agreement, the License shall also expire and Licensee shall cease immediately all use of the Licensed Products, and destroy at its own costs all copies, full or partial, of the Licensed Products.
16.4 Sections 5, 9.4, 11, 16.3, 17 and 19 shall survive expiration termination and/or termination of this Agreement.
If any provision of the Agreement is held to be void, invalid or inoperative, the remaining provisions of the Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity.
18 ENTIRE AGREEMENT AND AMENDMENTS
This Agreement and any documents referred to in this Agreement contain the entire agreement between the Parties with respect to the subject matter hereof and supersede all previous agreements and understandings between the Parties with respect hereto. No amendment or modification of the Agreement shall be made except by a written document signed by the Parties to be bound thereby.
19 GOVERNING LAW AND JURIDICTION
This Agreement and the License shall be governed by and interpreted according to Swiss substantive laws and the Parties hereby irrevocably submit to the exclusive jurisdiction of the courts of canton de Vaud, Switzerland.
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