GaFT Toolbox
GaFT toolbox Licence Agreement
IMPORTANT NOTICE: This agreement is is between the University of West Bohemia and the customer and governs the use of the GaFT toolbox for use with the MATLAB®. This agreement limits and excludes warranties and remedies regarding the software, materials and services, exempts University of West Bohemia (UWB) and other person from liability or limits their liability, specifies the jurisdiction for resolution of disputes, and contains other important provisions that you should read. By downloading and installing the UWB Software, you acknowledge and signify customer’s acceptance and agreement, without limitation or qualification, to be bound by this agreement and you represent and warrant that you have the legal authority to accept and agree to this agreement on behalf the customer. If customer does not agree with each provision of this agreement, or you are not authorized to agree to this agreement on behalf of customer, then neither you nor any other person on behalf of customer may download, install or use UWB Software, and you must cancel the installation of the software and permanently delete and destroy all copies of the software in your possession or control.
1. INTRODUCTION
1.1. Understanding this Agreement: This Agreement is between University of West Bohemia (UWB) and the Customer referenced in the applicable Ordering Documents (collectively, the “Parties” and each a “Party”), and applies to each of the Licenses and Services ordered by Customer from UWB as specified in applicable Ordering Documents, and all software and other materials and services provided by UWB to Customer under this Agreement. This Agreement must be read together with the Ordering Documents, each of which forms part of this Agreement.
1.2. License Types and Definitions: This Agreement refers to various types of licenses, which are as follows.
a) “Student License” means a Single Installation License for Customer to install one (1) copy of UWB Software on one (1) Authorized Device that does not allow more than one person to use the device at the same time, and to authorize one Student Users to use that copy of UWB Software for period of five (5) years for the purposes of Customer only.
b) “Classroom License” means license for Customer to install one (1) or multiple copies of UWB Software on one (1) or multiple Authorized Device to degree-granting educational institutions that does not allow more than one person to use the device at the same time, and to authorize one or more End Users to use that copy of UWB Software for use by Authorized Users for purpose of the support of classroom instruction of students of the Customer and Affiliates only. The Authorized device must be present on-campus computing facilities. The use of the UWB Software for any other purposes, including research and commercial purposes, is expressly prohibited. The number of allowed copies and End Users must not exceed the number and types of licenses specified in the Ordering Documents.
c) “Academic/non-Profit License” means license for Customer to install one (1) or multiple copies of UWB Software on one (1) or multiple Authorized Device to degree-granting educational or non-Profit institutions that does not allow more than one person to use the device at the same time, and to authorize one or more End Users to use that copy of UWB Software for use by Authorized Users for purpose of the teaching, and non-commercial, academic research in their ordinary course as Customer or Affiliate. The Authorized device must be present on-campus computing facilities. The use of the UWB Software for any other purposes, including commercial purposes, is expressly prohibited. The number of allowed copies and End Users must not exceed the number and types of licenses specified in the Ordering Documents.
d) “Commercial License” means license for Customer to install one (1) or multiple copies of UWB Software on one (1) or multiple Authorized Device that does not allow more than one person to use the device at the same time, and to authorize one or more End Users to use that copy of UWB Software for use by Authorized Users for the internal business purposes of Customer and Affiliates only. The use of the UWB Software for commercial purpose is permitted. The number of allowed copies and End Users must not exceed the number and types of licenses specified in the Ordering Documents.
e) “Individual License” means a license for Customer to install one (1) copy of UWB Software on one (1) Authorized Device that does not allow more than one person to use the device at the same time, and to authorize one or more End Users to use that copy of UWB Software for use by Authorized Users for the internal business purposes of Customer and Affiliates only, provided that only one (1) End User at a time may use UWB Software pursuant to each Single Installation License.
f) “Departmental/Laboratory License” means a license that the applicable Ordering Document identifies as a “Departmental/Laboratory License”. The license entitles the Customer to use multiple copies of UWB Software on more Authorized Devices that does not allow more than one person to use the device at the same time, and to authorize one or more End Users to use that copy of UWB Software for use by Authorized Users for the internal business purposes of Customer and Affiliates only. The Authorized device must be present in Ordering Documents specified department facility or laboratory. The number of allowed copies and End Users must not exceed the number and types of licenses specified in the Ordering Documents.
g) “Faculty/Institute License” means a license that the applicable Ordering Document identifies as a “Faculty/Institute License”. The license entitles the Customer to use multiple copies of UWB Software on more Authorized Devices that does not allow more than one person to use the device at the same time, and to authorize one or more End Users to use that copy of UWB Software for use by Authorized Users for the internal business purposes of Customer and Affiliates only. The Authorized device must be present in Ordering Documents specified faculty or institute facility. The number of allowed copies and End Users must not exceed the number and types of licenses specified in the Ordering Documents.
h) “Institutional/Company License” means a license that the applicable Ordering Document identifies as a “Institutional/Company License”. The license entitles the Customer to use multiple copies of UWB Software on more Authorized Devices that does not allow more than one person to use the device at the same time, and to authorize one or more End Users to use that copy of UWB Software for use by Authorized Users for the internal business purposes of Customer and Affiliates only. The Authorized device must be present in Ordering Documents specified institution or company facility. The number of allowed copies and End Users must not exceed the number and types of licenses specified in the Ordering Documents.
1.3. Definitions: In this Agreement, the following terms have the following meanings, and all other capitalized terms have the meaning ascribed elsewhere in this Agreement (including the Ordering Documents):
a) “Affiliate” means a corporate entity that is wholly owned by Customer. “Authorized Device” means a compatible personal computer that is owned or leased by Customer or an Affiliate and is used exclusively by Customer or the Affiliate for their internal business purposes only, and on which a validly licensed copy of MATLAB® software is also installed. Unless expressly set forth in this Agreement, an Authorized Device may not be a server computer that allows more than one person to use the device at the same time.
b) “Authorized User” means an End User.
c) “Claim” means claim, counterclaim, complaint, demand, cause of action, liability, obligation, damages, legal fees, costs, expenses, and disbursements, including reasonable attorneys’ fees and court costs, of any nature or kind, whatsoever and howsoever arising, whether known or unknown, whether in law or in equity or pursuant to contract or statute, and whether in any court of law or equity or before any arbitrator or other body, board or tribunal.
d) “Contract Year” means a 12-month period commencing on the Effective Date or an anniversary of the Effective Date.
e) “Device Component” means a component of UWB Software that is designed for installation on an Authorized Device for use by End Users.
f) “Documentation” means user manuals and other documentation and materials regarding UWB Software provided by UWB to Customer pursuant to this Agreement, and all updates to any of those items provided by UWB to Customer from time to time.
g) “Effective Date” means the effective date of the first Ordering Document issued under this Agreement.
h) “End User” means an employee of Customer or an Affiliate who is authorized by Customer to use UWB Software on behalf of Customer or Affiliates.
i) “UWB Software” means modules of the software known as GaFT toolbox for use with MATLAB® that are licensed by Customer under this Agreement as expressly set forth in the applicable Ordering Documents, and all updates and enhancements to any of those items provided by UWB to Customer from time to time.
j) ”Key” means a product serial number or other code issued by UWB that may be required to install or activate a copy of UWB Software.
k) “License” means a license granted to Customer as set forth in paragraph 2.1.
l) “Maintenance and Support” means: (i) updates and upgrades to and of UWB Software as UWB may from time to time commercially release; and (ii) limited telephone or email troubleshooting, advice and assistance to resolve technical problems relating to the authorized use of UWB Software, available during UWB’s regular support hours specified on UWB’s website (gaft.kky.zcu.cz), and the support tools available on UWB’s website.
m) “Ordering Document” means a trial license request form, registration notice, or invoice provided by UWB or its authorized reseller to Customer relating to Customer’s use of UWB Software.
n) “Proceeding” means action, suit, proceeding, or hearing of any nature and kind in any court of law or equity or before any arbitrator or other body, board or tribunal.
o) “Services” means the services, including Maintenance and Support, provided by UWB to Customer pursuant to this Agreement.
p) “Student User” means a user which provides the UWB certificate of study issued by the relevant educational institution.
q) “use” in relation to computer software means install, access, and operate the software in the ordinary course of using licensed commercial software.
2. INTRODUCTION
2.1. License Grant: Subject to the provisions of this Agreement and Customer’s prompt payment of all applicable fees, UWB grants to Customer the number and types of licenses specified in the Ordering Documents (collectively, the “Licenses”). All Licenses are non-exclusive, personal to Customer, non-sublicensable, non-transferable, limited, pertain to all versions of all software components of UWB Software, and are subject to the provisions of this Agreement. Each License for UW Software includes a non-exclusive, personal, non-sublicensable, non-transferable, limited license for Customer to use the Documentation regarding the licensed UWB Software during the term of the License to the extent reasonably necessary to facilitate the use of the licensed UWB Software in accordance with the License.
2.2. License Term: Except for Trial Licenses: (a) the initial term of each License commences on the Effective Date or such other date specified in the applicable Ordering Document, and will continue for the initial term specified in the applicable Ordering Document, unless terminated earlier pursuant to this Agreement; and (b) each License will automatically renew for consecutive additional twelve (12) month periods with renewal fees determined in accordance with paragraph 4.1, unless: (i) the License is terminated earlier pursuant to this Agreement; (ii) either Party gives notice of non-renewal to the other Party by no later than sixty (60) days before the end of the then-current term of the License; or (iii) this Agreement expressly specifies that the License will not automatically renew.
2.3. Restrictions/Requirements:
a) General: Customer will not: (i) use, disclose, or provide or permit access or use of, UWB Software or Documentation except as expressly permitted in this Agreement; (ii) copy (except to install UWB Software and to make one (1) copy of UWB Software for non-production backup purposes only), reproduce, translate, modify, or enhance UWB Software; (iii) create derivative works (including other software) from UWB Software or merge, embed or combine UWB Software with any other software or materials; (iv) reverse engineer, disassemble, decompile, convert into human-readable form, or otherwise attempt to access or derive the source code of UWB Software; (v) make any changes, modifications, additions, or improvements to UWB Software; (vi) license, sublicense, sell, resell, lend, lease, loan, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, rent, create any interest in, or otherwise give or make available or permit the use of UWB Software or Documentation or their functionality or any results of their use to or for the benefit of any person other than Customer and Affiliates, whether as a service bureau or otherwise, and with or without charge; (vii) alter, attempt to circumvent, destroy, obscure, or remove any notices (including trademark and copyright notices), proprietary codes or locks, means of identification, digital rights tools or management information, or agreements on, in or in relation to UWB Software or Documentation; or (viii) permit or assist any other person to use UWB Software or Documentation in a way that would constitute a breach of this Agreement. Customer will protect UWB Software and Documentation against unauthorized access, distribution, or use. Regardless of the number of copies of UWB Software and Documentation received by Customer or the means or media by which Customer receives them, each copy of UWB Software and Documentation is subject to this Agreement.
b) Replacement Installations: Customer may permanently remove UWB Software installed on an Authorized Device pursuant to a valid and subsisting License and install UWB Software on a replacement Authorized Device for use pursuant to a valid and subsisting License following the procedure prescribed by UWB , but that procedure may require UWB’s Key management services provided as part of Maintenance and Support.
c) Location of Use: Unless the Parties expressly agree in writing otherwise, UWB Software may be installed and used only on Authorized Devices and Servers (as applicable) located in the country in which Customer’s office is located as specified in the applicable Ordering Documents.
3. SERVICES
3.1. Maintenance and Support: Subject to the provisions of this Agreement, during the term of each License, UWB will use commercially reasonable efforts to provide Customer with Maintenance and Support relating to the License in accordance with UWB’s applicable policies and procedures as amended from time to time, details of which are available on UWB’s website (gaft.kky.zcu.cz). Maintenance and Support does not apply to any of the following: (a) UWB Software subject to a Trial License; (b) use of UWB Software in a manner inconsistent with the applicable Documentation or this Agreement; (c) UWB Software that has been modified by any person other than UWB; (d) UWB Software other than the then-current version of UWB Software, except that two (2) immediately previous versions of UWB Software will be supported for a period of twenty-four (24) months from the release date of the most current version; (e) hardware, peripherals (including printers) or software other than UWB Software; or (f) errors, damage or problems in UWB Software or its operation caused by: (i) an incompatible or non-functioning configuration, operating system or operation caused by: (i) an incompatible or non-functioning configuration, operating system or hardware system; (ii) accident, abuse or misapplication for which UWB is not responsible; hardware system; (ii) accident, abuse or misapplication for which UWB is not responsible; (iii) malfunction or non-performance of products supplied by third parties; or (iv) any other matters beyond UWB’s control. NOT ALL UWB SOFTWARE PROBLEMS CAN OR WILL BE CORRECTED OR RESOLVED AS PART OF MAINTENANCE AND SUPPORT.
3.2. Additional Services: Upon request by Customer, UWB may in its discretion provide additional services to or for the benefit of Customer (collectively, “Additional Services”) and, unless the Parties expressly agree in writing otherwise, Additional Services will be part of the “Services” and subject to this Agreement and such additional terms and conditions (including payment of additional fees and expenses) as the Parties may agree in writing.
4. FEES
4.1. Fees: Customer will pay to UWB the applicable fees for the Licenses and Services calculated in accordance with this Agreement and as specified in invoices issued by UWB or its authorized resellers. The fees for the initial term of each License will be specified in the applicable Ordering Document and, unless the Parties expressly agree in writing otherwise, the fees for each renewal term of each License will be based on UWB’s then-current fee schedule and specified in subsequent invoices issued by UWB or its authorized resellers.
4.2. Taxes: Fees are exclusive of all applicable federal, state, provincial, and municipal sales, use, value-added, property, excise, import, foreign, withholding and other governmental taxes, duties, charges, levies, fees, excises, tariffs and assessments, of any nature whatsoever now or hereafter imposed (collectively, “Taxes”). Customer is solely responsible and liable for, and will pay and remit, all Taxes (other than corporate income taxes payable by UWB) associated with, based on or due as a result of the fees payable under this Agreement, and all related interest, penalties and expenses.
4.3. Invoices/Payments: Each invoice will be due and payable in accordance with the payment terms and method set forth in the invoice or otherwise agreed to in writing by the Parties. Unless expressly stated otherwise in the applicable Ordering Document, annual fees are payable in advance and UWB may require advance payment of an invoice before providing related Keys or Services. Payment obligations are not cancellable, and advance payments are non-refundable (except as expressly set forth in paragraph 5.2), under any circumstances. Overdue payments will be subject to interest at a rate of 1.5% for each month (18% per annum) or fraction thereof that the payment is overdue, or the highest rate permitted by applicable law, whichever is lower. Except to the extent required by applicable law, all amounts payable to UWB under this Agreement are payable in full
without any deduction or withholding.
5. OWNERSHIP/PROPRIETARY RIGHTS
5.1. UWB Software/Documentation: Customer acknowledges and agrees that UWB and its licensors retain all rights, title and interests (including intellectual property and other proprietary rights) throughout the world in, to and associated with UWB Software and Documentation. UWB Software and Documentation are licensed, not sold, to Customer; and except for the Licenses Customer will not acquire any right, title or interest in, to or associated with UWB Software or Documentation pursuant to this Agreement or otherwise. Under no circumstances will UWB be obligated to provide, nor will Customer be entitled to receive, obtain or access, any source (human readable) code for any UWB Software. All rights not expressly granted under this Agreement are reserved to UWB.
5.2. IP Infringement Remedies: If at any time UWB Software is, or in UWB’s opinion is likely to become, the subject of a claim or allegation of infringement of misappropriation of third party intellectual property rights, UWB will in its discretion and at its own expense either: (a) obtain for Customer the right to use UWB Software in accordance with this Agreement; or (b) replace or modify UWB Software to make it non-infringing; or (c) terminate the License for UWB Software and refund to Customer the fees (if any) paid in respect of the UWB Software during the twelve (12) months immediately prior to the termination date. THIS PARAGRAPH 5.2 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND UWB’S ENTIRE RESPONSIBILITY AND LIABILITY, FOR ANY CLAIMS AND PROCEEDINGS ARISING FROM, CONNECTED WITH, OR RELATING TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY RIGHTS (INCLUDING ANY INTELLECTUAL PROPERTY RIGHT) OF ANY THIRD PARTY.
5.3. Feedback: If Customer, Affiliates or their personnel (including Authorized Users) give feedback about UWB Software, Documentation or Services (including ideas or suggestions for enhancements or improvements to UWB Software) to UWB, UWB and its successors, assigns and licensees may use the feedback without providing any compensation to Customer or any other person.
6. CUSTOMER’S OBLIGATIONS
6.1. Representations/Warranties of Customer: Customer represents and warrants to UWB as follows: (a) Customer has the right, power, capacity and authority to enter into and perform its obligations and exercise its rights under this Agreement; (b) Customer’s entering into this Agreement and performance of this Agreement will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual or otherwise) now or in the future owed by Customer to any other person; (c) all information regarding use of UWB Software by Customer, Affiliates and Authorized Users provided by Customer to UWB is true, accurate, current and complete; (d) Customer has all rights and licenses regarding all third party software necessary to use UWB Software as contemplated by this Agreement; and
6.2. Authorized Users/Affiliates: Customer is fully responsible and liable for all acts and omissions by or on behalf of all Authorized Users and Affiliates, and their access to and use of UWB Software and Services and the results obtained therefrom. Customer will ensure that all Authorized Users and Affiliates fully comply with all of Customer’s obligations under this Agreement, and all of the requirements, restrictions and limitations regarding the use of UWB Software, Documentation Set forth in this Agreement.
6.3. Technical Requirements: Customer is solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment, software (including validly licensed and installed MATLAB® software), and services necessary for the use of UWB Software and all data used in association with UWB Software (except for Maintenance and Support for UWB Software provided by UWB under this Agreement).
6.4. Applicable Laws: Customer will comply with, and ensure that all use of UWB Software, Documentation and Services by Customer, Affiliates and Authorized Users
complies with, all applicable local, state, provincial, national, and foreign laws and regulations, including all laws relating to data privacy, international communications and the exportation and transmission of technical data and other regulated materials.
6.5. Indemnity: During and after the term of this Agreement, Customer will defend, indemnify and hold harmless UWB and its personnel and representatives, jointly and severally, from and against any third party Claim or third party Proceeding arising from, connected with or relating to: (a) the use of UWB Software, Documentation and Services by or on behalf of Customer or Affiliates or the results obtained therefrom; or (b) any negligence, misconduct, or breach of this Agreement by Customer or any person (including Authorized Users and Affiliates) for whom Customer is responsible pursuant to this Agreement or at law. UWB will: (a) give Customer prompt notice of the indemnified Claim or Proceeding; (b) grant control of the defence and settlement of the indemnified Claim or Proceeding to Customer (provided that a Claim or Proceeding will not be
settled without the prior written consent of UWB and its indemnified personnel and
representatives (if applicable), which consent will not be unreasonably withheld or delayed); and (c) reasonably co-operate with Customer regarding the defence and settlement of the indemnified Claim or Proceeding. Notwithstanding anything contained in this Agreement to the contrary, UWB and its indemnified personnel and representatives (if applicable) retain the right to participate in the defense of and settlement negotiations relating to any indemnified Claim or indemnified Proceeding with counsel of their own selection at their sole cost and expense.
6.6. Confidentiality: Customer acknowledges and agrees that UWB Software and Documentation and all related non-public information, including financial models, math algorithms, and product roadmap (collectively the “Confidential Information”) are the trade secrets and confidential, proprietary information of UWB and are owned solely by UWB and its licensors. The terms of this Agreement are also UWB’s Confidential Information. Customer will use the Confidential Information only in connection with Customer’s use of UWB Software in accordance with this Agreement. Both during and after the term of this Agreement, Customer will: (a) maintain the strict confidentiality of the Confidential Information using the same degree of care as Customer affords to its own confidential information of a similar nature which it desires not to be accessed, used, disclosed or disseminated, and in no event less than reasonable care, to prevent the unauthorized
access to or use or disclosure of the Confidential Information; (b) not disclose or make the
Confidential Information available to any other person in any manner or form without UWB’s express prior written consent, except for bona fide disclosures required by applicable law; and (c) ensure that all Affiliates, Authorized Users and other persons to whom Customer discloses the Confidential Information comply with the restrictions and requirements set forth in this paragraph 6.6. Upon expiration or termination of this Agreement, Customer will either deliver to UWB or permanently delete and destroy all paper and electronic documents and other records containing Confidential Information in Customer’s possession or control.
7. LIMITED WARRANTY AND DISCLAIMER
7.1. Limited Warranty: UWB warrants that each version or release of UWB Software as delivered or made available to Customer by UWB will operate and perform in substantial conformity with the applicable Documentation for a period of ninety (90) days from the date on which the version or release of UWB Software is first delivered or otherwise made available to Customer (the “Warranty Period”). If there is a breach by UWB of the foregoing warranty, Customer’s sole and exclusive remedies and UWB’s sole obligations to Customer are as follows, at UWB’s option: (a) UWB will modify or replace the defective version or release of UWB Software so that it operates and performs in substantial conformity with the applicable Documentation, unless the Documentation is in error; or (b) UWB will modify the Documentation (if the Documentation is in error) to accurately reflect the actual operation of UWB Software; or (c) UWB will terminate the License for the defective version or release of UWB Software and reimburse the applicable License fees paid by Customer for the defective version or release of UWB Software. Customer will receive the remedy selected by UWB without charge, except for any expenses Customer may incur. The foregoing warranty and remedies will be available to Customer only during the Warranty Period and only if a warranty claim notice is delivered to UWB during the Warranty Period, and will not apply: (a) if UWB Software has been modified; or (b) to any errors, damage or problems caused by failure to provide a suitable operating environment; any third party software; accident, abuse or misapplication; use of UWB Software in breach of this Agreement; or other matters beyond UWB’s reasonable control; or (c) to UWB Software that is subject to a Trial License.
7.2. DISCLAIMERS: THE WARRANTY SET FORTH IN PARAGRAPH 7.1 IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES. EXCEPT FOR THE WARRANTY SET FORTH IN PARAGRAPH 7.1,
UWB SOFTWARE AND SERVICES ARE PROVIDED “AS IS AND WITH ALL FAULTS”, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO DURABILITY; FITNESS FOR A PARTICULAR PURPOSE; MERCHANTABILITY; NON-INFRINGEMENT; PERFORMANCE; QUALITY; RESULTS; SUITABILITY; TIMELINESS; TITLE; OR WORKMANLIKE EFFORT; ALL OF WHICH ARE HEREBY DISCLAIMED BY UWB TO THE FULLEST EXTENT PERMITTED BY LAW. CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR THE SELECTION OF UWB SOFTWARE AND S ERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS. CUSTOMER INSTALLS AND USES UWB SOFTWARE AT CUSTOMER’S OWN RISK, AND IS SOLELY RESPONSIBLE AND LIABLE FOR ENSURING THE ACCURACY OF ALL INPUT DATA
8. LIABILITY EXCLUSIONS/LIMITATIONS
8.1. Exclusion/Limitation of Liability: Notwithstanding any provision of this Agreement and to the maximum extent permitted by applicable law:
a) Exclusions: In no event and under no circumstances will UWB Group be liable to Customer Group or any other person for any indirect, incidental, consequential, special, punitive or exemplary loss or damage, arising from, connected with, or relating to UWB Software, Documentation, Services, or Calculated Data or use of UWB Software, Documentation, Services, or Calculated Data, or this Agreement (including the termination of this Agreement) or otherwise, or any loss of data, information, business, markets, savings, income, profits, use, production, or goodwill, anticipated or otherwise (including by reason of any expenditures, investments, leases or commitments made in anticipation of the continuance or performance of this Agreement);
b) Limitations: in no event and under no circumstances will UWB Group’s total aggregate liability to Customer Group arising from, connected with or relating to UWB Software, Documentation, Services or Calculated Data, or use of UWB Software, Documentation, Services, or Calculated Data, or this Agreement (including the termination of this Agreement) or otherwise, exceed the fees (if any) actually paid by Customer to UWB for UWB Software or Services during the twelve (12) months prior to the date on which the liability arose;
c) Application: this paragraph 8.1 applies to liability under any theory of liability (including contract, tort, strict liability, or statute), regardless of any negligence or other fault or wrongdoing (including fundamental breach or gross negligence) by UWB Group or any person for whom UWB is responsible, and even if UWB has been advised of the possibility of the potential loss or damage being incurred; and possibility of the potential loss or damage being incurred;
d) Definitions: in this paragraph 8.1, “UWB Group” means UWB and its affiliates and their respective past, present and future suppliers, licensors, personnel and representatives, jointly and severally; and “Customer Group” means Customer and Affiliates and their respective past, present and future personnel and representatives (including Authorized Users), jointly and severally.
8.2. Fair Allocation of Liability: Customer acknowledges and agrees that this Agreement presents a fair allocation of risk and liability, and that sections 7 and 8 are an essential part of the bargain between the Parties, a controlling factor in setting the fees payable by Customer for UWB Software and Services, and an inducement to UWB to enter into this Agreement.
9. TERM AN TERMINATION
9.1. Term of Agreement: This Agreement is effective as of the Effective Date and will continue in full force and effect until terminated in accordance with this Agreement.
9.2. Termination: This Agreement will terminate immediately and automatically, without any notice to Customer, if: (a) all Licenses expire or are terminated; or (b) Customer becomes bankrupt or insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy is appointed in respect of all or substantially all of Customer’s business and undertaking. All Licenses will terminate immediately and automatically, without any notice to Customer, if this Agreement expires or is terminated for any reason. Notwithstanding any other provision of this Agreement, either Party may terminate this Agreement for cause effective immediately upon delivery of a termination notice to the other Party if the other Party breaches this Agreement and has not remedied the breach within thirty (30) days after receipt of a default notice from the non-breaching Party identifying the breach and stating the non-breaching Party’s intention to terminate this Agreement if the breach is not remedied within a thirty (30) day cure period, provided that the termination notice is delivered no later than fifteen (15) days after the end of the cure period.
9.3. Consequences of Termination/Expiration: If this Agreement expires or is terminated for any reason, the Parties will comply with all obligations resulting from the termination of the Licenses as set forth in this Agreement and each Party will remain responsible and liable for all obligations and liabilities arising prior to the expiration or termination of this Agreement. If a License expires or terminates for any reason, Customer will ensure that Customer and all End Users immediately cease using the UWB Software that is subject to the License and promptly remove all copies of UWB Software from the Authorized Devices and other devices on which they have been installed pursuant
to the License. Upon expiration or termination of this Agreement, Customer and Affiliates will immediately cease using UWB Software and Documentation, promptly remove all copies of UWB Software and Documentation from all Authorized Devices and other devices on which they have been installed, and promptly permanently delete and destroy all copies of UWB Software and Documentation, and all related UWB Confidential Information, in Customer’s or Affiliates’ possession or control. If a Data Publishing License expires or terminates for any reason, Customer will immediately cease publishing or distributing Calculated Data to persons other than Authorized Users. Upon request by UWB after the expiration or termination of this Agreement, Customer will permit UWB to confirm that all copies of UWB Software and Documentation have been properly removed, deleted and destroyed, and will promptly deliver to UWB a certificate of compliance signed by one of Customer’s senior officers certifying that Customer has fully and faithfully complied with its obligations under this paragraph 9.3.
9.4. Suspension of Services: UWB may in its discretion immediately suspend the provision of Services to Customer if Customer fails to pay any fees when due or otherwise breaches this Agreement; and the suspension will not be a breach of this Agreement by UWB, entitle Customer to a refund or suspension of fees, or give rise to any liability by UWB to Customer or any other person.
9.5. Survival: Notwithstanding any other provision of this Agreement, if this Agreement expires or is terminated for any reason, the following provisions of this Agreement, and all other provisions necessary to their interpretation or enforcement, will survive the expiration or termination of this Agreement and will remain in full force and effect and be binding upon the Parties as applicable: sections 4, 5, 8, and 10, and paragraphs 2.3(a), 2.4, 6.5, 6.6, 6.7, 7.2, 7.3, 9.3, and 9.5.
10. GENERAL
10.1. Publicity: UWB may list Customer in any published list or directory of UWB customers. Upon request by UWB, Customer will provide UWB with Customer’s trademark or logos for use in those lists, subject to a reasonable, royalty-free trademark license agreement.
10.2. Notices: UWB and its authorized resellers may deliver invoices, Keys, and other notices to Customer by email, facsimile, or delivery to the Customer’s address specified in Ordering Documents or on record in Customer’s file with UWB or its authorized resellers. Customer will give all notices to UWB under this Agreement in writing delivered by courier to UWB (Attention Legal Department) at UWB’s head office address specified on UWB’s website (gaft.kky.zcu.cz).
10.3. Governing Law and Disputes: This Agreement, the relationship of the Parties, and all related matters will be governed, construed and interpreted solely in accordance with the laws of the Czech Republic, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws and excluding the United Nations Convention on Contracts for the International Sale of Goods. If Customer wishes to bring legal proceedings against UWB regarding this Agreement, the relationship of the Parties, or any related matter, Customer will do so only before either (as determined by Customer in its discretion) the courts of the Czech Republic sitting in the City of Plzen, Czech Republic, and UWB irrevocably submits and attorns to the exclusive jurisdiction of this court over those matters. If UWB wishes to bring legal proceedings against Customer regarding this Agreement, the relationship of the Parties, or any related matters, UWB will do so only before (as determined by UWB in its discretion) the court of the Czech Republic sitting in the City of Pilsen, Czech Republic or the courts of the jurisdiction of Customer’s office specified in an Ordering Document, and Customer irrevocably submits and attorns to the exclusive jurisdiction of those courts over those matters. Each Party irrevocably waives all rights to trial by jury.
10.4. Assignment: This Agreement is binding upon and will ensure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign this Agreement without the prior written consent of the other Party, which consent may be withheld in the other Party’s discretion, except that UWB may in its discretion assign this Agreement or its rights, duties, obligations or interests in this Agreement in any merger, consolidation, or reorganization or any acquisition or sale of all or substantially all of its assets relating to UWB Software if the surviving or acquiring person agrees to be bound by this Agreement.
10.5. Force Majeure: Notwithstanding any other provision of this Agreement, and except for the payment of money, neither Party will be liable for any delay in performing or failure to perform any of its obligations under this Agreement to the extent performance is delayed or prevented due to any cause that is beyond that Party’s reasonable control. Any delay or failure of this kind will not be deemed to be a breach of this Agreement by the defaulting Party, and the time for the defaulting Party’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.
10.6. Miscellaneous: The Parties are non-exclusive, independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the Parties. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid or unenforceable for any reason, then the provision will be deemed to be severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in its essential purpose. No consent or waiver by a Party to or of any breach by the other Party of its obligations under this Agreement will be effective unless in writing and signed by both Parties. Except as expressly set forth in this Agreement, the Parties’ respective rights and remedies under this Agreement are cumulative and not exclusive of any other rights or remedies to which they may be entitled under this Agreement or at law or equity. The Parties have expressly requested and required that this Agreement and all related documents be written in the English language.
10.7. Interpretation: In this Agreement: (a) a reference to “this Agreement” refers to this Agreement as a whole (including all Ordering Documents), and not just to the particular provision in which those words appear; (b) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (c) “persons” includes individuals, corporations, partnerships, joint ventures, associations, trusts, unincorporated organizations, societies, and all other legal entities; (d) words importing the singular number only include the plural and vice versa; (e) “including” means including without limitation; (f) words importing a gender include both genders;
(g) reference to a day, week, month, quarter or year, means a calendar day, week, month, quarter or year, unless expressly stated otherwise; (h) “discretion” or “option” mean a Party’s sole, absolute and unfettered discretion or option, as applicable; and (i) reference to a law or statute includes all regulations and ordinances made thereunder and all amendments to, or replacements of, the law, statute, regulations and ordinances in force from time to time.
10.8. Prior Software Versions: If Customer acquired UWB Software as an upgrade to a prior version of UWB Software, then this Agreement replaces the software license agreement for that prior version, and Customer may use UWB Software and its prior versions only in accordance with this Agreement. This provision does not apply if Customer acquires only Trial Licenses under this Agreement.
10.9. Entire Agreement: This Agreement is the complete agreement between UWB and Customer with respect to the subject matter of this Agreement, and supersedes all previous communications, representations, negotiations, discussions, agreements, or understandings, whether oral or written, with respect to the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties other than as expressly set forth in this Agreement. This Agreement takes priority over any software license agreement or end user license agreement that is included with UWB Software.
This Agreement may not be modified, except by a written agreement signed by the Parties. PURCHASE ORDERS AND OTHER DOCUMENTS ISSUED BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT ARE FOR ADMINISTRATIVE CONVENIENCE ONLY, AND THE TERMS AND CONDITIONS CONTAINED IN THOSE DOCUMENTS ARE OF NO FORCE OR EFFECT AND DO NOT IN ANY WAY AMEND THE TERMS AND CONDITIONS OF THIS AGREEMENT.
