License and Services Agreement (LSA) for HSEqms
A. Agreement Definitions
“You” and “your” refers to the individual or entity that has executed this agreement (“agreement”) and ordered HSEqms programs and/or services from HSE-QMS B.V. (“HSEqms”) or an authorized distributor. The term “programs” refers to the software products owned or distributed by HSEqms which you have ordered, program documentation, and any program updates acquired through technical support. The term “services” refers to technical support, training, outsourcing, consulting or other services which you have ordered.
B. Applicability of Agreement
This agreement is valid for the order to which this agreement accompanies.
C. Rights Granted
Upon HSEqms’s acceptance of your order, you have the limited right to use the programs and receive any services you ordered solely for your internal business operations and subject to the terms of this agreement, including the definitions and rules set forth in the order and the program documentation. You may allow your agents and contractors to use the programs for this purpose and you are responsible for their compliance with this agreement in such use. If accepted, HSEqms will notify you and this notice will include a copy of your agreement. Program documentation is either shipped with the programs, or you may access the documentation online at http://www.hse-qms.com.
Services are provided based on HSEqms’s policies for the applicable services ordered, which are subject to change, and the specific policies applicable to you, and how to access them, will be specified on your order. Upon payment for services, you will have a perpetual, nonexclusive, non-assignable, royalty free license to use for your internal business operations anything developed by HSEqms and delivered to you under this agreement; however, certain deliverables may be subject to additional license terms provided in the ordering document.
The services provided under this agreement may be related to your license to use programs which you acquire under a separate order. The agreement referenced in that order shall govern your use of such programs. Any services acquired from HSEqms are bid separately from such program licenses, and you may acquire either services or such program licenses without acquiring the other.
D. Ownership and Restrictions
HSEqms retains all ownership and intellectual property rights to the programs and anything developed by HSEqms or in its programs and delivered to you under this agreement resulting from the services, unless otherwise stated in your order. You may make a sufficient number of copies of each program for your licensed use and one copy of each program media
You may not:
• remove or modify any program markings or any notice of HSEqms’s proprietary rights;
• make the programs or materials resulting from the services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the services you have acquired); cause or permit reverse engineering (unless required by law for interoperability), disassembly or decompilation of the programs; or disclose results of any program benchmark tests without HSEqms’s prior written consent.
HSEqms may bundle third party libraries in its programs. These may be distributed under open-source licenses such as LGPL (http://opensource.org/licenses/LGPL-3.0) that allow re-distribution as part of a Combined Work that is subject to a commercial proprietary license or may be subject to commercial proprietary licenses that are re-distributed by HSEqms in virtue of a license agreement with one of its technology partners.
The licensing conditions for these libraries will be bundled with the license that you will receive for the Programs that you have purchased from HSEqms. You must respect the conditions established by these licenses and may not commercialize or redistribute these libraries independently of the Programs (unless the library’s license allows you to do so), even if you have received a license from HSEqms that allows you to redistribute the Programs.
E. Warranties, Disclaimers and Exclusive Remedies
HSEqms warrants that a program licensed to you will operate in all material respects as described in the applicable program documentation for one year after delivery. You must notify HSEqms of any program warranty deficiency within one year after delivery. HSEqms also warrants that services ordered will be provided in a professional manner consistent with industry standards. You must notify HSEqms of any services warranty deficiencies within 90 days from performance of the services described in the ordering document.
HSEqms does not guarantee that the programs will perform error-free or uninterrupted or that HSEqms will correct all program errors. To the extent permitted by law, these warranties are exclusive and there are no other express or implied warranties or conditions, including warranties or conditions of merchantability and fitness for a particular purpose.
For any breach of the above warranties, your exclusive remedy, and HSEqms’s entire liability, shall be: (a) the correction of program errors that cause breach of the warranty, or if HSEqms cannot substantially correct such breach in a commercially reasonable manner, you may end your program license and recover the fees paid to HSEqms for the program license and any unused, prepaid technical support fees you have paid for the program license; or (b) the reperformance of the deficient services, or if HSEqms cannot substantially correct a breach in a commercially reasonable manner, you may end the relevant services and recover the fees paid to HSEqms for the deficient services.
F. Trial Programs
You may order trial programs, or HSEqms may include additional programs with your order which you may use for trial, nonproductionpurposes only. You may not use the trial programs to provide or attend third party training on the content and/or functionality of the programs. You have 30 days from the delivery date to evaluate these programs. If you decide to use any of these programs after the 30 day trial period, you must obtain a license for such programs from HSEqms or an authorized distributor. If you decide not to obtain a license for any program after the 30 day trial period, you will cease using and will delete any such programs from your computer systems. The Programs information will be stored for maximum 3 months after ending the trail period. Programs licensed for trial purposes are provided “as is” and HSEqms does not provide technical support or offer any warranties for these programs. It is possible to migrate the trial programs by obtaining a license for such programs from HSEqms or an authorized distributor.
If someone makes a claim against either you or HSEqms (“Recipient”), that any information, design, specification, instruction, software, data, or material (“Material”) furnished by either you or HSEqms (“Provider”), and used by the Recipient infringes its intellectual property rights, the Provider will indemnify the Recipient against the claim if the Recipient does the following:
• notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
• gives the Provider sole control of the defense and any settlement negotiations; and
• gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
If the Provider believes or it is determined that any of the Material may have violated someone else’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any fees the Recipient may have paid for it and any unused, prepaid technical support fees you have paid for the license.
If you are the Provider and such return materially affects HSEqms’s ability to meet its obligations under the relevant order, then HSEqms may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by the Provider. HSEqms will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by HSEqms. This section provides the parties’ exclusive remedy for any infringement claims or damages.
H. Technical Support
For purposes of the ordering document, technical support consists of Software Updates, Product Support and/or other annual technical support services you may have ordered. If ordered, annual technical support (including first year and all subsequent years) is provided under Imatia’s technical support policies in effect at the time the services are provided. The technical support policies, incorporated in this agreement, are subject to change at Imatia’s discretion; however, Imatia will not materially reduce the level of services provided for supported programs during the period for which fees for technical support have been paid. For technical support contact HSEqms at http://www.hse-qms.com via Contact Us.
Technical support is effective upon shipment, or if shipment is not required, upon the effective date of the ordering document. If your order was placed through the HSEqms Store, the effective date is the date your order was accepted by HSEqms.
Software Updates or Product Support acquired with your order may be renewed annually and, if you renew the Software Updates or Product Support for the same number of licenses for the same programs, for the first and second renewal years the fee for Software Updates or Product Support will not increase by more than 4 % over the prior year’s fees. If your order is fulfilled by a member of HSEqms’s partner program, the fee for Software Updates or Product Support for the first renewal year will be the price quoted to you by your partner; the fee for Software Updates or Product Support for the second renewal year will not increase by more 4 % over the prior year’s fees.
If you decide to purchase technical support for any license within a license set, you are required to purchase technical support at the same level for all licenses within that license set. You may desupport a subset of licenses in a license set only if you agree to terminate that subset of licenses. The technical support fees for the remaining licenses will be priced in accordance with the technical support policies in effect at the time of termination. HSEqms’s license set definition is available in the current technical support policies. If you decide not to purchase technical support, you may not update any unsupported program licenses with new versions of the program.
HSEqms reserves the right to desupport its programs or particular versions of its programs. You will be notified in advance when HSEqms determines that a program is to be desupported. Such desupport notices, which are posted at HSEqms’s customer support web site, contain desupport dates, information about availability of Extended Support and Extended Maintenance Support and information about migration paths for certain features. The desupport notices are subject to change; HSEqms will provide updated desupport notices on its customer support web site
I. End of Agreement
If either of us breaches a material term of this agreement and fails to correct the breach within 30 days of written specification of the breach, the other party may terminate this agreement. If HSEqms ends this agreement as specified in the preceding sentence or under the Indemnification section, you must pay within 30 days all amounts which have accrued prior to the end of this agreement, as well as all sums remaining unpaid for programs ordered and/or services received under this agreement plus related taxes and expenses. Except for nonpayment of fees, we each agree to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under this agreement, you may not use those programs and/or services ordered. You further agree that if you have used an HSEqms Finance contract to pay for the fees due under an order and you are in default under that contract, you may not use the programs and/or services ordered and HSEqms may end this agreement. Provisions that survive termination or expiration include those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
J. Fees and Taxes
All fees payable to HSEqms are due within 30 days from the invoice date. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that HSEqms must pay based on the programs and/or services you ordered, except for taxes based on HSEqms’s income. Also, you will reimburse HSEqms for reasonable expenses related to providing the services.
Fees for services listed in an ordering document are exclusive of taxes and expenses. You agree that you have not relied on the future availability of any programs or updates in entering into the payment obligations in your order.
By virtue of this agreement, the parties may have access to information that is confidential to one another (“confidential information”). Confidential information shall be limited to the terms and pricing under this agreement, and all information clearly identified as confidential.
A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to access it in furtherance of this agreement and who are required to protect it against unauthorized disclosure. Nothing shall prevent either party from disclosing the terms or pricing under this agreement or orders submitted under this agreement in any legal proceeding arising from or in connection with this agreement.
L. Entire Agreement
You agree that this agreement and the information which is incorporated into this agreement by written reference (including reference to information contained in a URL or referenced policy), together with the applicable order, are the complete agreement for the programs and/or services ordered by you, and that this agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such programs and/or services. If any term of this agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. It is expressly agreed that the terms of this agreement and any HSEqms ordering document shall supersede the terms in any purchase order or other non-HSEqms ordering document and no terms included in any such purchase order or other non-HSEqms ordering document shall apply to the programs and/or services ordered. This agreement and ordering documents may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the HSEqms Store by authorized representatives of you and of HSEqms. Any notice required under this agreement shall be provided to the other party in writing.
M. Limitation of Liability
Neither party shall be liable for any indirect, incidental, special, punitive, or consequential damages, or any loss of profits, revenue, data, or data use. HSEqms’s maximum liability for any damages arising out of or related to this agreement or your order, whether in contract or tort, or otherwise, shall be limited to the fees you paid HSEqms for the deficient program or services under this agreement as specified in your order. In no event shall HSEqms’s liability arising out of or related to this agreement exceed the total fees paid under your order.
Export laws and regulations of the European Union and The Netherlands as well as any other relevant local export laws and regulations apply to the programs. You agree that such export control laws govern your use of the programs (including technical data) and any services deliverables provided under this agreement, and you agree to comply with all such export laws and regulations. You agree that no data, information, program and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
This agreement is governed by the substantive and procedural laws of The Netherlands and you and HSEqms agree to submit to the exclusive jurisdiction of, and venue in, the courts in The Haque, The Netherlands in any dispute arising out of or relating to this agreement.
If you have a dispute with HSEqms or if you wish to provide a notice under the Indemnification section of this agreement, or if you become subject to insolvency or similar legal proceedings, you will promptly send written notice to: HSE-QMS B.V.,Rubensplanstoen 4, Hillegom, 2182LG, The Netherlands.
You may not assign this agreement or give or transfer the programs and/or any services or an interest in them to another individual or entity. If you grant a security interest in the programs and/or any services deliverables, the secured party has no right to use or transfer the programs and/or any services deliverables.
Except for actions for nonpayment or breach of HSEqms’s proprietary rights, no action, regardless of form, arising out of or relating to this agreement may be brought by either party more than two years after the cause of action has accrued.
Upon 45 days written notice, HSEqms may audit your use of the programs. You agree to cooperate with HSEqms’s audit and provide reasonable assistance and access to information. You agree to pay within 30 days of written notification any fees applicable to your use of the programs in excess of your license rights. If you do not pay, HSEqms can end your technical support, licenses and/or this agreement. You agree that HSEqms shall not be responsible for any of your costs incurred in cooperating with the audit.
P. Force Majeure
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for services provided.
Q. License Definitions and Rules
To fully understand your license grant, you need to review the definition for the licensing metric and term designation as well as the licensing rules which are incorporated in and made a part of this agreement.