In this Agreement, the words "you," "your," and "Customer" mean the person or entity named on the signature page of this Agreement as the Customer, and includes any authorized subcontractor, agent or consultant acting on its behalf. The words "we," "us," "our," and each mean SGE. The term "Customer's Server" means your server. The term "Documentation" means product user guides, installation guides, manuals and release notes. The term "Named User" means the user or users of the Software (each being employees of the Customer), as designated in an Order (and as amended from time to time by the mutual written agreement of the parties). The term "Order" means SGE's standard form for ordering Software product licences. The term "SGE Server" means our server. The term "Software" means SGE's proprietary "Aladdin" maintenance management software obtained by the Customer from SGE as denoted on an Order or and/or as further described in the related Documentation (including Software Updates). The term "Software Update" means any update, patch, new release and/or new version of the Software. The term "affiliates" as used herein means all companies now or hereafter controlling, controlled by, or under common control with either you or us (as the context requires). As used herein, "control" "controlled" or "controlling" means, with regard to any entity, the equitable ownership, directly or indirectly, of more than 50% (or the maximum permitted by local law, if less) of the voting stock (or other ownership interest ordinarily having voting rights, if not a corporation).
2. GRANT; USE
(a) Subject to the terms of this Agreement and the provisions set out in the relevant Order, SGE grants the Customer a non-exclusive licence to use the Software in object code form solely for your internal business purposes. You are responsible for the acts and omission of your affiliates, subcontractors, agents and consultants with respect to their use of the Software and this Agreement, and all such acts or omissions shall be deemed acts or omissions on your part. This Agreement does not entitle you to services such as installation, implementation, training or education, which are available to you under terms of a separate agreement between us, the details of which (if any) may be set out in an Order.
(b) You and your affiliates may only use the Software in accordance with the applicable licence types designated in an Order, which are more fully described as follows:
(i) Monthly Licence: this licence allows certain Named Users to access and use the Software (hosted on SGE's Server), so long as the monthly fees outlined in an Order are being paid to SGE (after which time the Customer's right to use the Software will terminate).
(ii) Perpetual SGE Server Licence: this licence allows certain Named Users to use the Software through a cloud-based application which is hosted on SGE's Server (subject at all times to any permission levels applicable to such Named Users, as advised by the Customer in an Order). The one-time fee associated with the Perpetual SGE Server License grants the Customer, following complete payment of the associated fee, a royalty-free license to use the Software in perpetuity.
(iii) Perpetual Licence: this licence allows certain Named Users to use the Software hosted on the Customer's Server, following installation by SGE on the Customer's Server (subject at all times to any permission levels applicable to such Named Users, as advised by the Customer in an Order). The one-time fee associated with the Perpetual Customer Server License grants the Customer, following complete payment of the associated fee, a royalty-free license to use the Software in perpetuity.
3. OWNERSHIP; REVERSE ENGINEERING; RESTRICTIONS
(a) This Software is licensed, not sold, to you. SGE and its licensors retain all title and ownership to the Software. SGE and its licensors reserve all rights in the patents, copyrights, trade secrets and other intellectual property in the Software.
(b) You may copy the Documentation solely to facilitate your use of the Software in accordance with, and subject to, the terms and conditions of this Agreement.
(c) You understand that the Software, Documentation and the terms and pricing under this Agreement as well as any other confidential proprietary information provided to you by or for us in connection with this Agreement constitute valuable properties and trade secrets of SGE, which are proprietary and confidential. You agree to maintain the confidentiality of such information and to protect the information as a trade secret by preventing any unauthorised copying, use or disclosure of such information.
(d) You may not remove, alter or destroy any proprietary, trademark or copyright notices placed upon or contained within the Software or Documentation. You acquire no rights of any kind in or to any trademark, trade name, logo or product designation under which the Software was or is marketed and you may not make any use of the same for any reason.
(e) You agree not to reverse engineer, modify, decrypt, extract, disassemble, copy, or decompile the Software, or permit anyone else to do so.
(f) You will promptly notify us upon becoming aware of any unauthorised use of any Software or the Documentation.
(g) We confirm that at all times you will maintain ownership of your data that is processed with the aid of the Software, which you may download at any time.
4. CHARGES AND PAYMENT
You agree to pay SGE the fees specified in each Order in the manner provided in the Order. You will pay any applicable VAT, sales, use, excise and other similar taxes payable as a result of this Agreement. To the extent that any government levy or charge is required to be deducted by you in respect of any sums due from you to us prior to payment, the sums due to us will be grossed up such that we will receive the same amount as if no such deduction was required.
5. LIMITED WARRANTY
(a) We warrant that the Software will substantially conform to and operate according to our then current Documentation under normal use, and that the media will be free from defects in design, material or workmanship. We further warrant to you that the Software shall contain no contaminants, including any codes or instructions that may be used to access, modify, delete, damage or disable your computer systems beyond the legitimate use of licence keys that limit the deployment of the Software licensed by you.
(b) The foregoing warranty is limited to a period of 1 year from the Effective Date. As our sole liability to you in the case of a breach of the foregoing warranty, and thereafter, and for so long as you are obtaining maintenance and support from us, to provide maintenance, modifications or fixes with respect to any error, non-conformity or defect in the Software so that the Software can be used substantially in accordance with the specifications set forth in the Documentation. We do not warrant that the functions contained in the Software will meet your requirements or that the Software will operate uninterrupted or error free.
(c) SGE will take steps in line with prudent industry practice to protect your data from hackers but will incur no liability whatsoever in the event your data is hacked, provided we have taken steps appropriate to comply with prudent industry practice.
(d) Except for the express warranty in Section 5(a), the Software is provided "as is" and to the fullest extent permitted by applicable law, SGE excludes all other express and implied terms, conditions, warranties or representations regarding the Software arising by law or otherwise, including without limitation any implied terms of satisfactory quality, reasonable skill and care and fitness for a particular purpose.
At our expenses we will defend, indemnify and hold you harmless against any third party claim that the Software infringes a patent, trademark, copyright or other intellectual property right in accordance with this Agreement which is owned by such third party. We will pay all reasonable costs, damages and attorney's fees that a court finally awards in favour of such third party as a result of such claim, provided at all times that you have given us prompt written notice of the claim, cooperate fully with us in its defence, and give us sole authority to control the case and any related settlement negotiations. We will not be responsible for any settlement made without our written consent. Our obligations under this Section 6 do not apply to the extent that a claim is based on or caused by (1) any alteration or modification of the Software including without limitation any alteration or modification developed by us in accordance with written instructions, specifications, requirements, designs, methodologies or algorithms provided by you or developed jointly by you and us; (2) the combination, operation, or use of the Software with software or equipment which was not recommended or provided by us solely to the extent that the claim would not have arisen but for such combination, operation or use; (3) any misuse or unlicensed use of the Software or any use of the Software in a manner not contemplated by the Documentation or authorized by us; (4) the use of a superseded or an altered version of the Software if infringement would have been avoided by use of the latest unaltered version of the Software made available to you at no charge following notice to you that your version of the Software may be infringing and of your need to use the latest unaltered version of the Software.
7. LIMITATION OF LIABILITY
(a) The parties agree that, to the fullest extent permissible under law, in no event shall a party, and in the case of SGE, its suppliers, be liable to the other for:
(i) any indirect loss;
(ii) any incidental, consequential, indirect, special or punitive damages or losses;
(iii) any direct or indirect loss of profits; or
(iv) any lost savings, loss of use or loss of date
arising out of or related to this Agreement or with respect to the installation, use or operation of the Software, whether in contract, tort, negligence (save in respect of fraud, or death or personal injury resulting from negligence) or other form of action even if the party has been apprised of the possibility of such damages.
(b) The parties hereto specifically agree that except for amounts properly payable to SGE hereunder, the total liability of either party to the other for damages under this agreement will not exceed 100% of the sum of (i) all licence fees actually paid by you to SGE hereunder for the Software and (ii) where applicable, all maintenance and support fees paid by you to SGE for the then current annual maintenance and support period. Notwithstanding the foregoing, SGE's total liability to you for damages relating to any third party owner Software product we resell to you will not exceed the licence fees paid to us for such product.
(c) The limitations described in this Section 7 shall not apply with respect to a breach of the obligations under Sections 3 (Ownership; Reverse engineering; Restrictions) and shall not limit SGE's obligations under Section 6 (Indemnification).
You may not license, sublicense, assign, sell, rent, lease, or otherwise transfer the Software or this Agreement without our prior written consent. Notwithstanding the foregoing, you may, without our consent, (a) assign this Agreement to an affiliate, provided you remain liable for such entity's performance; and (b) assign all, but not part, of the Software and this Agreement to another entity pursuant to a merger, consolidation or acquisition of all or substantially all of your assets; provided that in each case you notify us of the assignment in writing and the assignee agrees to be bound by this Agreement.
9. TERM AND TERMINATION
Each licence granted to you under this Agreement will begin on the day you commence use of the Software, and will continue until this Agreement is terminated with respect to that licence. Either party may terminate this Agreement, in addition to any other remedies it may have, if the other party is in default of a material obligation under this Agreement and fails to cure such default within 30 days following its receipt of written notice of the default. Within 7 days following termination of this Agreement, whether terminated by you or us, you will destroy all copies of the Software, together with all Documentation, modifications, and enhancements thereto, or else return all copies to us.
10. GOVERNING LAW AND DISPUTES; LANGUAGE
This Agreement shall be governed and construed in accordance with the laws of England, exclusive of its conflicts of law provisions and the parties hereby submit to the exclusive jurisdiction of the Courts of the Dubai International Financial Centre. The parties hereto expressly waive the application of the United Nations Convention on Contracts for the International Sale of Goods to the terms of this Agreement.
(a) Any failure by either party to enforce at any time or for any period of time the provisions of this Agreement shall not be construed as a waiver of such provision, or of the right to enforce that provision.
(b) The Customer agrees that any material breach of this Agreement may cause SGE irreparable harm, and that SGE may seek injunctive relief in the event of a material breach by the Customer.
(c) If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law, then such provision (or part thereof) shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the remainder of this Agreement shall not be affected.
(d) This Agreement may not be modified unless the modification is in a writing and signed by both parties.
(e) This constitutes the entire agreement between us with respect to the Software. This Agreement will be binding on and will inure to the benefit of the heirs, executors, administrators, successors and assignees of the parties hereto.
(f) Any notice or other communication required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given on the day of service if served personally or sent by prepaid first class post, courier, e-mail or by fax to the party to whom it is being given at the address, e-mail address or fax number at the address set forth above or in the initial Order, or at such other addresses as may be specified by either party to the other party in writing from time to time.
(g) On our written request, no more frequently than annually, you shall provide us with a signed certification verifying that the Software is being used pursuant to the terms of this Agreement and the relevant Order. You agree to grant us reasonable access to all relevant locations and provide reasonable co-operation, upon prior notice during normal business hours, to allow us to audit the use of the Software.
12. SOFTWARE MAINTENANCE AND SUPPORT
Upon execution of this Agreement, you shall pay to us the (i) the installation fees; and (ii) the annual maintenance and support fees specified in the Order. Payment of the maintenance and support fees entitles you to receive the maintenance and support described in SGE’s proposal to the Customer referenced 2015122901.
13. SOFTWARE INTEGRATION
(a) Any request by the Customer for SGE to integrate the Software with certain third party software products will be subject to additional charges as advised by SGE.
(b) The Customer acknowledges that any integration of the Software with other software involves a degree of risk that the Customer's data may be lost as a result of such integration and that any such integration requested by the Customer and undertaken by SGE on the Customer's behalf shall be carried out entirely at the Customer's risk and SGE shall bear no liability whatsoever for any loss of data or any other damages that result from such integration.
14. PRIVACY ACT; RIGHTS OF THIRD PARTIES
(a) By signing this Agreement you consent to our passing certain Customer-related details (e.g., name, title, contact telephone and fax numbers, e- mail address) to our affiliates.
(b) No term of this Agreement is enforceable by any person who is not a party to it.