Terms and conditions

1       DEFINITIONS.

1.1      “Add-on” means any development that adds new and independent functionality but does not modify existing InnoForce software (hereinafter – Software) functionality and is developed using InnoForce application programming interfaces or other InnoForce code that allows other software products to communicate with or call on the Software.

1.2      “Business Partner” means a legal entity or individual that requires access to the Software in connection with Licensee’s internal business operations, such as customers, distributors and/or suppliers of Licensee and Government institutions.

1.3      “Confidential Information” means, with respect to Licensee: Licensee’s marketing and business plans and/or financial information, and with respect to InnoForce: (a) the Software and Documentation and other InnoForce Materials, including without limitation the following information regarding the Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Software; (ii) benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications, file formats; and (iii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Software; (b) the research and development or investigations of InnoForce; and (c) product offerings, product pricing, product availability, user manuals, algorithms, processes, ideas, techniques, formulas, data and know-how. In addition, Confidential Information of either InnoForce or Licensee (the party disclosing such information being the “Disclosing Party”) includes information which the Disclosing Party protects against unrestricted disclosure to others that (i) the Disclosing Party or its representatives identifies as confidential at the time of disclosure; or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure; including, without limitation, information from, about or concerning any third party that is disclosed under this Agreement.

1.4      “Documentation” means InnoForce’s then-current technical and/or functional documentation which is delivered or made available to Licensee with the Software under this Agreement.

1.5      “Intellectual Property Rights” means patents of any type, design rights, utility models or other similar invention rights, copyrights, mask work rights, trade secret or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.

1.6      “Modification” means (i) a change to the delivered source code or configurations; or (ii) any development, other than a change to the delivered source code or configurations, that customizes, enhances, or changes existing functionality of the Software including, but not limited to, the creation of any new application program interfaces, alternative user interfaces or the extension of Software data structures; or (iii) any other change to the Software (other than an Add-on) utilizing or incorporating any InnoForce Materials (defined below).

1.7      “InnoForce Materials” means any software, programs, tools, systems, data or other materials made available by InnoForce to Licensee prior to or in the course of the performance under this Agreement including, but not limited to, the Software and Documentation, as well as any information, materials or feedback provided by Licensee to InnoForce relating to the Software and Documentation.

1.8      “Software” means (i) any and all software products licensed to Licensee under the Agreement, all as developed by or for InnoForce and/or any of their affiliated companies and delivered to Licensee hereunder; (ii) any new releases, updates or versions thereof made available through unrestricted shipment pursuant to InnoForce Support or warranty obligation and (iii) any complete or partial copies of any of the foregoing.

1.9       “Third Party Software” means (i) any and all software products developed by companies other than InnoForce and/or any of their affiliated companies and delivered to Licensee.

2       LICENSE GRANT.

2.1      License.

2.1.1     Subject to Licensee’s compliance with all the terms and conditions of this Agreement, InnoForce grants to Licensee a non-exclusive, non-transferable, permanent license to Use the Software, Documentation, and other InnoForce Materials for Company Codes to run Licensee’s internal business operations (including customer back-up and passive disaster recovery) unless terminated in accordance with the terms of this Agreement. Licensee may make Modifications and/or Add-ons to the Software in furtherance of its permitted Use under this Agreement and shall be permitted to use Modifications and Add-ons with the Software in accordance with this Section and Section 6.3. Licensee shall not: (i) use the InnoForce Materials to provide services to third parties (e.g., business process outsourcing, service bureau applications or third party training); (ii) lease, loan, resell, sublicense or otherwise distribute the InnoForce Materials; (iii) make any Use of or perform any acts with respect to the InnoForce Materials other than as expressly permitted in accordance with the terms of this Agreement; (iv) use Software components other than those specifically identified in the Software Purchase, Implementation, Support and Consultancy Services Agreement, even if it is also technically possible for Licensee to access other Software components. Licensee may permit Business Partners to Use the Software only through screen access, solely in conjunction with Licensee’s Use, and may not Use the Software to run any of Business Partners’ business operations.

2.1.2     Licensee agrees to install the Software only in Licensee’s direct possession. If Licensee receives licensed Software that replaces previously licensed Software, its rights under this Agreement with regard to the previously licensed Software end when it deploys the replacement Software for Use on productive systems following a reasonable testing period. At the date the rights to the previously licensed Software end, Licensee shall comply with Section 5.2 of this Agreement with respect to such previously licensed Software.

2.2      Services Providers. Licensee may permit services providers to access the Software solely for the purpose of providing facility, implementation, systems, application management or disaster recovery services to Licensee in connection with the business of Licensee for which the Software is herein licensed provided. Such services provider shall be permitted to Use the Software solely to install and configure the Software in accordance with the business of Licensee as set forth herein (or in the case of a disaster recovery vendor, to provide disaster recovery services only). Under no circumstances may such services provider Use the Software to operate or provide processing services to Licensee or any other party, or in connection with such services provider’s own business operations. Licensee expressly agrees to indemnify InnoForce from and against all claims, liabilities, losses, damages and costs (including reasonable attorney fees) suffered by InnoForce arising from a breach by the services provider of the conditions of this Agreement.

3       VERIFICATION.

3.1      InnoForce shall be permitted to audit the usage of the Software. Licensee shall cooperate reasonably in the conduct of such audits. In the event an audit reveals that (i) Licensee underpaid license fees and/or (ii) that Licensee has used the Software in excess of the company code or levels stated in this agreement, Licensee shall pay such underpaid fees and/or for such excess usage based on the Software purchase, Implementation, Support and Consultancy Services Agreement.

4       PRICE AND PAYMENT.

4.1      The price for the Software and Material license is set in the Software Purchase, Implementation, Support and Consultancy Services Agreement.

5       TERM.

5.1      Term. This Agreement and the license granted hereunder shall become effective as of the date first set forth in the applicable Software Delivery Agreement and shall continue in effect thereafter unless terminated upon the earliest to occur of the following: (i) thirty days after Licensee gives InnoForce written notice of Licensee’s direction to terminate this Agreement, for any reason, but only after payment of all License and other related to the software acquisition and usage fees then due and owing; (ii) thirty days after InnoForce gives Licensee written notice of Licensee’s material breach of any provision of this Agreement (other than Licensee’s breach of its obligations under Sections 6, 10 or 11, which breach shall result in immediate termination), including Licensee’s failure to pay any money due hereunder, unless Licensee has cured such breach during such thirty day period; (iii) immediately if Licensee files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors. For the avoidance of any doubt, termination of this Agreement shall apply to all Software licensed under this Agreement and order documents and any partial termination of this Agreement by Licensee shall not be permitted in respect of any part of this Agreement and order documents.

5.2      End of Term Duties. Upon any termination hereunder, Licensee shall immediately cease Use of all InnoForce Materials and Confidential Information. Within thirty (30) days after any termination, Licensee shall irretrievably destroy all copies of the InnoForce Materials and Confidential Information in every form, except to the extent it is legally required to keep it for a longer period in which case such return or destruction shall occur at the end of such period. Licensee must certify to InnoForce in writing that it has satisfied its obligations under this Section 5.2. Licensee agrees to certify in writing to InnoForce that it has performed the foregoing. Sections 3, 4, 5.2, 6, 7.2, 8, 9, 10, 12.4, 12.5, 12.6 and 12.8 shall survive such termination. In the event of any termination hereunder, Licensee shall not be entitled to any refund of any payments made by Licensee. Termination shall not relieve Licensee from its obligation to pay fees that remain unpaid.

6       INTELLECTUAL PROPERTY RIGHTS.

6.1      Reservation of Rights. The InnoForce’s Materials and all Intellectual Property Rights embodied therein, shall be the sole and exclusive property of InnoForce. Except for the rights set forth in Sections 2 and 6.3 herein, Licensee is not permitted to modify or otherwise make derivative works of the Software or other InnoForce Materials.

6.2      Protection of Rights. Licensee shall not copy, disassemble, nor reverse engineer the Software or other InnoForce’s Materials. Licensee is permitted to back up data in accordance with good information technology practice and for this purpose to create the necessary backup copies of the Software. Licensee must not change or remove InnoForce’s copyright and authorship notices.

6.3      Modifications/Add-ons.

6.3.1     Licensee shall notify InnoForce’s prior to making Modifications or Add-ons. All Add-ons developed by InnoForce (either independently or jointly with Licensee) and all rights associated therewith shall be the exclusive property of InnoForce. Licensee agrees to execute those documents reasonably necessary to secure InnoForce’s rights in the foregoing Modifications and Add-ons. All Add-ons developed by or on behalf of Licensee without InnoForce’s participation (“Licensee Add-on”), and all rights associated therewith, shall be the exclusive property of Licensee subject to InnoForce’s rights in and to the Software and InnoForce Materials; provided, Licensee shall not commercialize, market, distribute, license, sublicense, transfer, assign or otherwise alienate any such Licensee Add-ons. InnoForce retains the right to independently develop its own Modifications or Add-ons to the Software, and Licensee agrees not to take any action that would limit InnoForce’s sale, assignment, licensing or use of its own Software or Modifications or Add-ons thereto.

6.3.2     Any Modification developed by or on behalf of Licensee without InnoForce’s participation or Licensee Add-on must not (and subject to other limitations set forth herein): enable the bypassing or circumventing any of the restrictions set forth in this Agreement and/or provide Licensee with access to the Software to which Licensee is not directly licensed; nor unreasonably impair, degrade or reduce the performance or security of the Software; nor render or provide any information concerning InnoForce Software license terms, Software, or any other information related to InnoForce Materials.

6.3.3     Licensee covenants, on behalf of itself and its successors and assigns, not to assert against InnoForce, or their commercial partners and customers, any rights in any (i) Licensee Add-ons or Modifications, or (ii) other functionality of the Software accessed by such Licensee Add-ons or Modifications.

7       PERFORMANCE WARRANTY.

7.1      Warranty. InnoForce warrants that the Software will substantially conform to the specifications contained in the Documentation for twelve months following delivery. The warranty shall not apply: (i) if the Software is not used in accordance with the Documentation; or (ii) if the defect is caused by a Modification or Add-on (other than a Modification or Add-on made by InnoForce and which is provided through InnoForce Support or under warranty), Licensee or third-party software; or (iii) to any Licensee unlicensed activities. InnoForce does not warrant that the Software will operate uninterrupted or that it will be free from defects or errors that do not affect such performance, or that the applications contained in the Software are designed to meet all of Licensee’s business Software requirements. Provided Licensee notifies InnoForce in writing with a specific description of the Software’s nonconformance within the warranty period and InnoForce validates the existence of such nonconformance, InnoForce will, at its option repair or replace the nonconforming Software. This is Licensee’s sole and exclusive remedy under this warranty.

7.2      Express Disclaimer. InnoForce and its Licensors disclaim all other warranties express or implied, including without limitation, any implied warranties of merchantability or fitness for a particular purpose except to the extent that any warranties implied by law cannot be validly waived.

8       THIRD PARTY CLAIMS.

8.1      Infringement and Defense of Licensee. InnoForce shall defend Licensee against claims brought against Licensee by any third party alleging that Licensee’s Use of the Software, in accordance with the terms and conditions of this Agreement, constitutes a direct infringement or misappropriation of such third party’s patent claim(s), copyright or trade secret rights. This obligation of InnoForce shall not apply if the alleged infringement or misappropriation results from (i) Use of the Software in conjunction with any other software; (ii) failure to promptly use an update provided by InnoForce if such infringement or misappropriation could have been avoided by use of the update; or (iii) any Use not permitted by this Agreement. This obligation of InnoForce also shall not apply if Licensee fails to timely notify InnoForce in writing of any such claim; however Licensee’s failure to provide or delay in providing such notice shall not relieve InnoForce of its obligations under this Section except to the extent InnoForce is prejudiced by Licensee’s failure to provide or delay in providing such notice. InnoForce expressly reserves the right to cease the defense of any claim(s) in the event the Software is no longer alleged to infringe or misappropriate, or is held not to infringe or misappropriate, the third party’s rights. InnoForce may settle or mitigate damages from any claim or potential claim by substituting alternative substantially equivalent non-infringing programs and supporting documentation for the Software. Licensee shall not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation of the Software that is prejudicial to InnoForce’s rights.

8.2      The provisions of this section 8 state the sole, exclusive, and entire liability of InnoForce to licensee, sole remedy, with respect to the infringement or misappropriate of third-party intellectual property rights.

9       LIMITATIONS OF LIABILITY.

9.1      Not Responsible. InnoForce will not be responsible under this Agreement (i) if the Software is not used in accordance with the Documentation; or (ii) if the defect or liability is caused by Licensee, a Modification or Add-on (other than a Modification or Add-on made by InnoForce which is provided through InnoForce Support or under warranty), or third-party software; or (iii) if the Software is used in conjunction with any third party software for which the Licensee lacks sufficient rights from the third party vendor for such use; or (iv) for any Licensee activities not permitted under this Agreement. InnoForce and its licensors shall not be liable for any claims or damages arising from third-party software licensed hereunder.

9.2      Exclusion of Damages; Limitation of Liability. Anything to the contrary herein notwithstanding, except for (i) damages resulting from unauthorized use or disclosure of confidential information; or (ii) InnoForce’s obligations under section 8.1; or (iii) InnoForce right to collect unpaid fees, under no circumstances and regardless of the nature of any claim shall InnoForce or licensee be liable to each other or any other person or entity for an amount in excess of the paid license fees for the software directly causing the damages or be liable in any amount for special, incidental, consequential, or indirect damages, loss of good will or profits, work stoppage, data loss, computer failure or malfunction, attorneys’ fees, court costs, interest or exemplary or punitive damages.

9.3      Exclusions and Limitations for Third Party Software. Subject to the exclusion of damages stated in section 9.2 and with respect to third party software, under no circumstances and regardless of the nature of any claim shall InnoForce be liable for an amount in excess of the paid license fees for the third party software directly causing the damages.

9.4      The provisions of this Agreement allocate the risks between InnoForce and Licensee. The license fees reflect this allocation of risk and the limitations of liability herein.

10     CONFIDENTIALITY.

10.1    Use of Confidential Information. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of the Software Delivery Agreement. Any reproduction of any Confidential Information of the other shall remain the property of the disclosing party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each party : (a) shall take all Reasonable Steps to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than its bona fide individuals whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder, and who are under obligations of confidentiality substantially similar to those set forth herein. As used herein “Reasonable Steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder.

10.2    Exceptions. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions.

10.3    Confidential Terms and Conditions; Publicity. Licensee shall not disclose the terms and conditions of the Software Delivery Agreement or the pricing contained herein to any third party. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other, except that Licensee agrees that InnoForce may use Licensee’s name in customer listings or, at times mutually agreeable to the parties, as part of InnoForce’s marketing efforts (including without limitation reference calls and stories, press testimonials, site visits). InnoForce will make reasonable efforts to avoid having the reference activities unreasonably interfere with Licensee’s business.

11     ASSIGNMENT.

Licensee may not, without InnoForce’s prior written consent, assign, delegate, pledge, or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, or the InnoForce Materials or InnoForce Confidential Information, to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. InnoForce may assign this Agreement to any of its affiliates.

12     GENERAL PROVISIONS.

12.1    Severability. It is the intent of the parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.

12.2    No Waiver. If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.

12.3    Counterparts. Both parties agree that this document and its signature can be established in electronic form and that, in electronic form, they shall be deemed originals.

12.4    Regulatory Matters. Licensee agrees that it will not submit the Software, Documentation or other InnoForce Materials to any government agency for licensing consideration or other regulatory approval without the prior written consent of InnoForce, and will not export the Software, Documentation and InnoForce Materials to countries, persons or entities prohibited by such laws. Licensee shall also be responsible for complying with all applicable governmental regulations of the country where Licensee is registered, and any foreign countries with respect to the use of the Software, Documentation or other InnoForce Materials by Licensee.

12.5    Governing Law; Limitations Period. This Agreement and any claims arising out of or relating to this Agreement and its subject matter shall be governed by and construed under the laws of Lithuania, without reference to its conflicts of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Lithuanian law, rules, and regulations, Lithuanian law, rules, and regulations shall prevail and govern.

12.6    Notices. All notices or reports which are required or may be given pursuant to this Agreement shall be in writing and shall be deemed duly given when delivered to the respective executive offices of InnoForce and Licensee at the addresses first set forth in the Software purchase, Implementation, Support and Consultancy Services Agreement. Where in this Section or elsewhere in this Agreement a written form is required, except for any notice of termination or notice of a material breach which shall occur by exchange of letter(s), that requirement can be met by email.

12.7    Force Majeure. Any delay or nonperformance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.

12.8    Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between InnoForce and Licensee, and all previous representations, discussions, and writings are merged in, and superseded by this Agreement and the parties disclaim any reliance on any such representations, discussions and writings. This Agreement may be modified only by a writing signed by both parties. This Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any Software delivery or other document furnished by Licensee to InnoForce. This Agreement shall prevail over any additional, conflicting or inconsistent terms and conditions which may appear in any clickwrap end user agreement included in the Software. Signatures sent by electronic means (scanned and sent via e-mail) shall be deemed original signatures. This Agreement does not create any partnership, joint venture or principal-and-agent relationship.