Software Licensing and Maintenance – GTC (General Terms and Conditions) Valid: May 2022
by Acuiti Labs, 872, Salisbury House, Finsbury, London EC2M 5QQ, United Kingdom, hereafter referred to as “Acuiti Labs” or the “Licnesor.” Acuiti Labs Pvt. Ltd, www.acuitilabs.com
These General Contract Terms shall regulate the terms for the granting of usage rights to the software products (software) specified in the Software Licensing Agreement and the related documentation (documentation) and the performance of services for software support and provision of software updates (Support Agreement). Any supplementary and/or contradictory purchase, order or other general terms and conditions of the Licensee (“Licensee” or “Client”) to this contract shall not apply, even if the Licensor fulfils the contract without expressly rejecting such terms. The same shall apply to the General Terms and Conditions of the Licensor.
2. DELIVERY AND SERVICE PERFORMANCE
The place of fulfilment shall be the registered office of the Licensee. The Licensor shall send storage media that contain the software and documentation to the Licensee or shall provide them for download via a network and shall notify the Licensee of this (electronic delivery). For the fulfilment of this contract, the Licensor may employ vicarious agents at any time.
3. CONDITIONS AND GUARANTEES
The software shall work according to the documentation if the software is used in a system configuration approved by Acuiti Labs after stating the documentation. Characteristics of the software which the Licensee may expect due to statements by partners of the Licensor or the Licensor itself, especially in advertisements or labelling of the software, shall only be part of the contractual characteristics of the software if expressly qualified by the Licensor as such or if they follow from the service description. The Licensor shall provide notification regarding the technical operating conditions of the software and any changes to them on its online information platforms. The Licensor shall provide the technical usage options and conditions of the software (e.g., referring to the database, operating system, hardware, and data carriers) to the Licensee on request. The right to use the software shall only refer to the installation and interaction with other software and hardware elements previously and expressly specified as suitable by the Licensor.
4. SOFTWARE UPDATES
Acuiti Labs shall provide new versions of the software to the customers in accordance with the respective contracts. The software installation updates on the Client’s mobile shall be performed in coordination with the Client and at the Client’s expense. The Client shall receive updates for their acquired licenses. The provision of updates to the Client shall also include information on their installation and new features. If new program versions require additional expenditures, such as installations, training or instructions to key users, Acuiti Labs shall invoice these separately and according to the expenditures. As soon as a new version of the software is made available, usage rights to previous versions shall expire.
5. RIGHTS RETENTION
The Client must respect Acuiti Labs’ copyright ownership. Acuiti Labs shall retain any rights to the app development and documentation as well as any intellectual property rights not expressly granted to the Licensee as part of an agreement. No rights to the software source code shall be granted to the Licensee. The Licensee must adhere to and attach any copyright notices and other labels on intellectual property rights that apply to the original app development and/or documentation for any copies of the software and/or documents created by the Licensee and any storage medium used by the Licensee for such purposes. Any goods supplied by Acuiti Labs shall remain the property of Acuiti Labs until they have been paid for in full. In case of breaches of contract, especially payment default, Acuiti Labs may demand the return of the goods. Acuiti Labs is entitled to the full and exclusive ownership of and the intellectual property rights to the work output produced by Acuiti Labs under this contract.
6. THIRD-PARTY SERVICES
The scope and conditions of and support for the products and services of third parties (especially hardware, additional software, add-ons, etc.), especially for the supply of hardware and additional software, shall, if they were accepted by the Licensee, follow the regulations of the respective suppliers or the agreements concluded between the Licensee and the respective service provider. The Licensor shall assume no liability and/or provide support for such third-party products and services.
7. LICENSEE SUPPORT AND COOPERATION OBLIGATIONS
Acuiti Labs shall provide efficient and conscientious solutions to/support for problems in accordance with the information available on each problem and the general knowledge and skills of its employees. Nonetheless, the Client shall note that several factors may be relevant in information technology. Therefore, no binding times for solving a problem or troubleshooting can be guaranteed. The Licensee shall take appropriate measures to prevent potential software errors, e.g., by saving data, preparing alternative solutions, performing fault diagnoses, or monitoring results regularly. Should problems occur, the Client shall first consult the documentation provided to him or the online help offered by the system or the manufacturer. Acuiti Labs shall provide support to the Client when reporting errors by offering suggestions for error removal, prevention, and avoidance. This shall require the completion and documentation of the following obligations which the Client must observe when submitting support cases:
• Error reports and support requests must be submitted via the media designated by Acuiti Labs (e.g., phone, HelpDesk email). Standard reaction times cannot be guaranteed for error reports not received via the contact centers specified by Acuiti Labs.
• Support cases must be written in English.
• Complete error description; this includes:
- Informative title for the support case;
- Technical information on the context of the support case (e.g., logfiles);
- Technical information on the system for which the support case occurred (system description, system type and name, installation number, product version and patch level of relevant products, SDK or additional solution, database and database server data, software server data, operating system, user interface or browser version, local and language settings, etc.);
- Extensive description of the problem, including any steps that preceded the problem or have already been taken;
- Description of the accompanying circumstances (recently performed upgrades, etc.).
• Ensuring a functional remote connection to Acuiti Labs
• Determination of available technical notices and referral of these notices in the support case submission.
• Support cases that describe more than one problem must be divided into several support cases.
• Addition of attachments that may be helpful for processing the support case.
The Client must provide and maintain permanent remote access in the form of an according telecommunications infrastructure, especially a direct Internet connection (at least ADSL), and grant any required authorization to Acuiti Labs, especially for error analysis during support case processing. This shall apply without limitation regarding the nationality of Acuiti Labs’ employees.
The Licensee shall authorize the Licensor to perform measurements of the Licensee’s systems to assess the Licensee’s use of the software/software. In addition, Acuiti Labs may contact the Client’s employees for surveys on the Client’s satisfaction with the software and/or for advisory, training or maintenance services.
If support services are performed at the Client’s office, the Client must enable access to the software to Acuiti Labs employees, representatives or commissioned parties and provide the required technical facilities, especially electricity, telephone, and data lines, to the necessary extent free of charge.
Support services shall generally be performed during the office hours specified in the Support Agreement.
If the Client requests hotline or support services outside of regular office hours, Acuiti Labs shall invoice the services performed according to expenditure.
The Client shall be responsible for the complete documentation of changes or adjustments not made by Acuiti Labs.
Should the Client’s system environment, installation, network environment, number of users, operating system or other system-related components change, Acuiti Labs must be notified of this in due time. Only with sufficient knowledge of the Client’s hardware and software environment can telephone support and optimized support services be provided.
The Client must notify Acuiti Labs about the hardware and software used for the softwares under this contract.
Changes to the pursued usage purpose for the softwares specified under this contract or programs or larger extensions to/changes of user accounts must also be reported.
8. SERVICE PERFORMANCE OBLIGATION RELEASE
Acuiti Labs shall be released from its obligations to provide services under the Support Agreement,
- if the Client fails to fulfil his cooperation obligations
- if a problem is not due to Acuiti Labs software or documentation.
- if support is required for a problem that was caused by software use contrary to the contract;
- if the Client altered the software without Acuiti Labs’ prior written permission.
The Licensee shall bear sole responsibility for any consequences and costs resulting from violations of the above-mentioned contractual obligations.
Support costs shall especially not include changes to, adjustments and expansions of and installation work for new software modules, softwares, and programs.
If the Client learns and changes Acuiti Labs’ developer passwords or developer accounts, Acuiti Labs may immediately suspend any services under the Support Agreement without granting reimbursement claims for compensation under the Support Agreement. If the manufacturer ends support for technologies used or program versions on which the softwares regulated by the software agreement are based, Acuiti Labs may only provide its support services with limitations or no longer be able to offer them at all. Acuiti Labs may offer to perform the migration of the software or reprogram the current version.
9. LICENSING FEES, SUPPORT SERVICE COMPENSATION, PAYMENT TERMS
The Licensee shall pay a licensing fee for use of the software in accordance with contractual regulations. In addition to the licensing fee, the Licensee shall pay recurring compensation for support services in accordance with the Support Agreement.
The following special regulations shall apply to the leased, i.e., temporary, use of the software: The usage license shall be provided temporarily in return for regular payments of a rent. This rent shall merely include the licensing fee per contract so that the fees under the Support Agreement must be paid in addition to the rent.
Any applicable legal sales taxes or VAT shall be borne by the Licensee.
Payment shall become due within 15 days of the invoice date. After the 16th day, default interest of 5% per annum shall be charged, including without warning. The Licensor reserves the right to prove that greater damages were caused by the Licensee.
The Licensor may, in regular intervals, have the Licensee’s documents and data processing devices relevant for the licensing fee reviewed by an independent auditor and computer expert subject to confidentiality obligations. Such reviews shall be performed at the Licensee’s offices during regular business hours. The costs for such reviews shall be borne by the Licensor unless the review discovers outstanding licensing fee payments of more than 5%. In the latter case, the Licensee shall bear the entire costs for the review.
The Licensor shall assure the Licensee that, in the system environment specified by the Licensor, the software will be for the most part display and perform the functions and services described in the documentation. However, the Licensee shall recognize that software errors cannot be completely excluded even with the greatest diligence, and that uninterrupted functionality of the software cannot be guaranteed.
The Licensee must inspect the software upon its receipt and report any obvious defects in writing without delay, no later than 30 calendar days after receipt of the software
. The Licensee must notify the Licensor in writing about any hidden defects within 10 business days of their discovery. Any defect reports must include detailed descriptions of the problem to allow the Licensor to reproduce the error.
In case of a defect report, the Licensor shall remedy the defect at its discretion, either by providing a new, defect-free version of the software to the Licensee or by rectifying the defect (subsequent rectification) within an appropriate the period. The Licensor may temporarily correct defects or errors through a correction file (patch) or bug fix and provide permanent error solution with the next software release, update, or upgrade.
If defect rectification fails definitively and if the failure is confirmed by both parties in writing, the Licensee may seek legal remedies.
The Licensor’s warranty obligations under this contract shall not apply if the software is used improperly, installed or maintained by persons other than the Licensor’s authorized representatives and employees, executed in a system configuration not approved by the Licensor in accordance with the documentation or subjected to conditions that do not correspond to the environmental or operating conditions required by the documentation, unless the Licensee can prove that these circumstances did not cause the error or that the Licensor agreed to such circumstances beforehand in writing. Furthermore, the warranty obligations shall also not apply to errors and defects because of previously unknown viruses, trojans, etc., new, or unknown hacking methods or installation defects or that consist of the software not featuring system functionalities desired by the Licensee or not in the form, speed, etc., desired by the Licensee if these functionalities are not expressly part of the software description.
If the inspection of claimed defects finds that no warranty claims existed, the Licensor may charge the entire costs of the inspection to the Licensee. However, if a warranty claim is found to exist, the Licensee may pass on any resulting costs to the Licensor. The costs shall be determined based on expenditure for an hourly rate of GBP 125.
11. LIABILITY LIMITATION
Beyond the regulations in Number 10 (Warranty), the Licensor shall only be liable for intent and gross negligence. Any other liability shall be excluded insofar as legally permissible. Liability shall especially be excluded for indirect or subsequent damages, lost profit, non-realized savings, operational disruptions, third-party claims and subsequent defect damages or damages due to loss of data. Regarding helpers and included third parties, the Licensor shall only be liable for their careful selection and instructions.
Acuiti Labs shall especially not be liable for damages due to the following circumstances:
- Incorrect entries or operations by users
- Improper operation of the hardware on which the software is installed.
- Executed program updates of other software on the workstations/servers that may lead to impairments and down times of the softwares regulated by this contract.
Nor shall the Licensor be liable for taxes and customs duties charged in relation to the delivery and use of the software, the installation, selection and use of and results achieved with the software, except for deviations from those described in the documentation.
12. THIRD-PARTY PROPERTY RIGHTS VIOLATIONS
The Licensor shall, at its discretion and at its own expense, defend itself against or settle any legal disputes against the Licensor for claimed violations of patents, copyrights, trademarks, trade secrets or other third-party intellectual property rights due to use of the software in accordance with the contract in United Kingdom. The Licensor shall compensate the Licensee for any costs and damages determined against the Licensee in a legally binding manner for such a legal dispute if,
- the violation is due to intentional or grossly negligent actions by the Licensor
- the Licensee notifies the Licensor about such claims in writing without delay
- the Licensor authorizes the Licensee to defend itself against or settle such claims
- the Licensee provides any relevant information and appropriate support to the Licensor.
The Licensor shall not be liable for costs and damages incurred by the Licensee through the defence against such claims if the respective actions were not authorized by the Licensor in writing beforehand. If violations of third-party rights by the software are claimed or are likely to occur according to the Licensor’s reasonable assessment, the Licensor may, at its reasonable discretion, either
- grant continued usage rights for the software to the Licensee without additional costs to the Licensor, or
- change the software such that third-party property rights will not be violated if the software continues to feature the essential functional characteristics described in the documentation, or
- fully compensate the Licensee for his damages.
The Licensor shall not be liable for violations of third-party property rights caused by:
- software edits not made or approved by the Licensor or
- use of the software or parts of it in connection with other products, processes or materials not provided, recommended, or authorized for use with the software by the Licensor, or
- the Licensee continuing to use a certain version of the software after having been informed about possible protective rights violations or after the Licensor provided an updated version to prevent the claimed violation or
- use of version of the software other than the latest release, update, or upgrade if the claimed violation would not also have occurred when using the previous software release, update or upgrade.
The Licensee shall compensate the Licensor for and indemnify the Licensor against any damages and costs incurred by the Licensor due to third-party protective rights violations caused by one of the above-stated circumstances or use of the software contrary to the contract.
13. CONFIDENTIALITY AND DATA PRIVACY
Every party shall treat confidential information and business secrets of the other party and its groups which they obtain through this contract confidentially. Confidential information shall include the software, its source code (irrespective of the fact that no usage rights for the source code shall be granted to the Licensee), the documentation and any other information labelled as confidential in writing by the disclosing party or, if such information is provided orally, described as confidential at the time of disclosure or within one month thereafter.
Confidential information shall not include information that:
- becomes generally known or publicly accessible without the involvement of the recipient party;
- was in possession of the recipient party prior to its receipt by the disclosing party without violating confidential obligations or was or made known to the recipient party without violating confidentiality obligations;
- was developed independently by the recipient party without drawing on confidential information;
- was justly disclosed to the recipient party by a third party not subject to confidentiality obligations when referring to such information;
- was provided to the recipient party with the prior written permission of the disclosing party,
- must be disclosed due to legal or administrative regulations if the disclosing party is notified of this requirement without delay and if the scope of such disclosure is limited as far as possible;
- if the information must be disclosed due to a court order if the disclosing party is notified of this without delay and no objection can be raised.
The contract partners shall only provide confidential information to their employees, groups, representatives or third parties if required for the fulfilment of their duties under this contract and if the recipients are subjected to corresponding confidentiality obligations.
The above-stated confidentiality requirements shall also apply beyond the termination or revocation of this contract.
Both parties shall adhere to statutory privacy protection regulations. Should the Licensor’s employees or representatives be granted access to the hardware or software of the Licensee (e.g., to remove errors or for support purposes), this shall not be done for the Licensor to process or use personal data, but merely for business purposes. Personal data shall only be transferred in exceptions and as an accompaniment to the fulfilment of the contractual duties by the Licensor.
14. CONTRACT TERMINATION
Each party shall have the right to terminate the contract ordinarily at the end of each month with a 3-month notice period, for the first time 36 months after the contract entered effect (ordinary termination). Terminations must be issued via registered letter.
Each party shall have the right to, at any time, terminate the contract extraordinarily for good cause effective immediately or for a future time to be specified by the terminating party.
Good cause shall be present if the other party violates an obligation under this contract,
- if the violation is not remedied within 10 calendar days following a warning by the other party (only for violations of service obligations that can be performed subsequently; for violations of other obligations, especially obligations of omission, immediate contract dissolution may be sought);
- through the launching of insolvency or probate proceedings for the assets of the other party;
- by failing to make licensing fee payments despite receiving notice;
- in case of essential changes to the control over the other party, especially including takeovers or significant influence by a third-party company.
All usage rights of the Licensee to the software shall expire upon the termination of the contract.
The termination and determination of the revocation of the contract shall only apply with effect for the future (ex nunc). Licensing fees already paid cannot be reclaimed.
After the termination of the contract or the determination of the contract’s non-existence, the Licensee must refrain from any further use of and must uninstall and delete any copies of the software and collect and destroy any documentation without delay and keep a log of all steps for the collection and deletion which must be submitted to the Licensor within 30 calendar days of the termination or revocation of the contract.
The Licensor shall have the right to have the execution of the de-installation and the deletion reviewed by an expert at its own expense.
Should the Licensee use the software after the termination of the contract or other default by the Licensee for the de-installation and deletion of the software and the return of the documentation after the termination of the contract, the Licensee shall be required to pay a contractual penalty of 3 times the ordinary licensing fee. The assertion of further damage compensation claims shall remain reserved.
15. Data protection and customer data
Consent for storing and processing customer data
Customer explicitly agrees that Acuiti Labs may store and process its data, customer name, contact person, address, telephone number and e-mail address to fulfil the contract and for group-internal customer relationship management (CRM) purposes and for sending information about events, newsletters, general information, and Christmas cards and forward this data to companies associated with Acuiti Labs.
Right of confirmation
Customer has the right, as granted by the European legislator, at any time, to obtain on request free of charge information regarding the personal data stored about them and to receive a copy of such information.
Right to rectification and right to erasure (right to be forgotten)
Customer has the right to demand the immediate correction of inaccurate personal data concerning them. Furthermore, customer has the right to request that incomplete personal data be completed, including by means of providing a supplementary declaration. This request can be placed via all communication channels as well as per e-mail to firstname.lastname@example.org
The customer has the right to require Acuiti Labs to immediately erase the personal data concerning them, provided that one of the following reasons is satisfied and the processing is not required:
• The personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed.
• The customer objects to the processing pursuant to Article 21 (1) of the GDPR and there are no overriding legitimate grounds for the processing, or the customer objects to the processing pursuant to Article 21 (2) of the GDPR.
• The personal data has been processed unlawfully.
• The personal data must be erased for compliance with a legal obligation in Union or Member State law to which Acuiti Labs is subject. The personal data has been collected in relation to the offer of information society.
16. CLAIMS ASSERTION
Any claims due or in relation to this contract, the providing of the software or the use of (or impossibility to use) the software by the Licensee may only be asserted against the Licensor.
Acuiti Labs may, in consideration of the stated confidentiality obligations, use the Client’s name and logo and information on provided services as a reference or for marketing purposes. This shall especially include the use of marketing brochures, Internet presences, project proposals, press and internal releases and internal and external presentations in the sense of listing the relevant Acuiti Labs Clients. Any additional use in technical articles or for expressing factual opinions shall require the Client’s prior permission.
18. WRITTEN FORM
Any contractual agreements and changes and supplements to them and any other agreements must be issued in writing and signed by both contract parties to be effective, provided that they are bilateral. The same shall apply to any waiver of this written form requirement.
19. PLACE OF JURISDICTION AND APPLICABLE LAW
The exclusive place of jurisdiction for any disputes shall be the registered office of the Licensor which is, United Kingdom.