Software Subscription Agreement


This agreement (“Agreement”) is a legal agreement between you, (“Subscriber”) and IOTech Systems Limited (“Licensor”), for use of Licensor’s commercial distribution of its Edge Xpert computer software products, any printed materials, online or electronic documentation and any upgrades or modifications thereto, collectively hereinafter referred to as the “Software”, and for provision by Licensor of support services for the Software “Services”, (as defined in Section 1 of the Services Schedule hereto). The Software is based on the LinuxTM Foundation’s EdgeX FoundryTM core software suite (“EdgeX FoundryTM”). The Software also contains certain proprietary software of Licensor and its third-party licensors, collectively (“IOTech Software”).  EdgeX Foundry is open source software (“OS Software”). Certain other 3rd party software included in the Software is also OS Software. By installing, copying, or otherwise using the Software, Subscriber agrees to be bound by the terms and conditions of this Agreement. The parties expressly agree that the terms and conditions of this Agreement shall prevail over any standard terms and conditions printed or referred to in any purchase contract, order or other written documentation issued by the Subscriber concerning the subject matter hereof. If Subscriber does not agree to the terms and conditions of this Agreement then do not install copy or use the Software.

 

1.      OS Software License

 

1.1           EdgeX Foundry software included in the Software is licensed under the Apache License, Version 2.0 (the "EdgeX Foundry License"); Subscriber may not use EdgeX Foundry software except in compliance with the EdgeX Foundry License. Subscriber may obtain a copy of the License at  http://www.apache.org/licenses/LICENSE-2.0


1.2          SUBSCRIBER ACKNOWLEDGES THAT THE OS SOFTWARE IS PROVIDED WITH NO WARRANTIES OF ANY KIND INCLUDING THE WARRANTIES OF DESIGN, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. IN NO EVENT WHATSOEVER AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, UNLESS REQUIRED BY APPLICABLE LAW (SUCH AS DELIBERATE AND GROSSLY NEGLIGENT ACTS), SHALL LICENSOR BE LIABLE TO SUBSCRIBER FOR ANY DAMAGES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, ARISING AS A RESULT OF USING THE OS SOFTWARE OR OUT OF THE USE OR INABILITY TO USE THE OS SOFTWARE (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


2.      Software License and Support Subscription Terms

 

The following terms and conditions of this Agreement apply to use of the Software by Subscriber and provision of Services to Subscriber under the Agreement in consideration for the Subscription Fees (as defined in Clause 3.1), (“Subscription”).  In the event such terms and conditions conflict with the OS Software License provisions provided in Clause 1 above, the terms of Clause 1 shall apply, but only in respect of the use of the OS Software.

 

2.1   Licensor hereby grants to Subscriber, subject to payment of the appropriate Subscription Fees (as defined in Clause 3), the non-exclusive non-transferable (without the right to sub-license) license to use the IOTech Software in object code form only, subject to the terms and conditions of this Agreement and to receive Services for the Software, from Licensor for an agreed Subscription period.

2.2   The particular Software licensed, Subscription period, type and number of licenses and any additional restrictions, not contained herein, concerning the Subscription, such as specified Subscriber site(s), designated computer hardware, and/or operating system, use in conjunction with particular other software, or the number of authorized users shall be in accordance with the particular transaction between us, as confirmed in Licensor’s order acknowledgement.

2.3   Unless otherwise agreed in writing, the following restrictions apply to use of the IOTech Software.

2.3.1        Developer License Subscription – a license permitting a defined number of users to use the IOTech Software for development purposes only, to develop and/or test Subscriber applications on a single self-contained computer hardware system (“Node”), and to receive Services purchased from Licensor for an agreed subscription period. The term "use" comprises designing, developing, testing, or maintaining software which invokes functionality of the IOTech Software. Subscription licencess are transferable between computer systems subject to IoTech written consent;

2.3.2        Deployment License Subscription: a per Node license permitting Subscriber to run IOTech Software connectivity services with Subscriber’s applications in a live operational environment and to receive Services purchased from Licensor for an agreed subscription period. Deployment License subscriptions can be sublicensed, distributed or resold as incorporated with Subscribers’ applications to Subscribers’ customers either directly or indirectly, subject (i) to the Subscriber’s Deployment License Subscription being in date; (ii) to a contract or license that binds Subscribers’ customers (and procures the binding of their customers) to substantially similar terms to this Clause 2 and (iii) otherwise contains substantially similar protections and licensing provisions in respect of the IoTech Software as this Agreement.

2.4   Subscriber acknowledges that the Software may not operate without a license key (“License Key”) and Subscriber agrees to provide Licensor with any necessary information requested by Licensor in order to generate and provide the License Key(s). Such information may include specific computer IP and / or Host ID addresses and / or other relevant information relating to the type and number of licenses purchased. Licensor reserves the right to withhold or delay the issue of any permanent License Key(s) in the event the Subscriber is in breach of this Agreement, until such breach has been remedied. Subscriber shall maintain records of the number and type of licenses purchased including appropriate details such as users allocated and computers on which Software is installed and shall provide a copy of such records to Licensor on request. 

2.5   Except as otherwise permitted in accordance with this Agreement, Subscriber shall use the IOTech Software solely for its own internal business purposes. Subscriber shall not provide or otherwise make available the IOTech Software in whole or in part to any third party and Subscriber shall not permit any third party to use the IOTech Software without the written consent of Licensor. Subscriber shall not, or permit any third party to, publish or disclose the results of any performance or benchmark tests relating to the IOTech Software without the written consent of Licensor.

2.6   Subject to compliance with all other terms of this Agreement by Subscriber, Licensor’s consent referred to in Clauses 2.5 and 13.1 is granted hereunder to make the IOTech Software available to third party contractors of Subscriber provided that such contractors must be bound by written agreement to compliance with the terms of this Agreement (save for Clauses 3 & 4). Subscriber shall ensure compliance by such third-party contractors to such terms.

2.7   Subscriber may make a reasonable number of copies of the IOTech Software for back-up, archival or disaster recovery purposes. Any copy must include Licensor’s copyright notice and is fully subject to the terms of this Agreement.  Subscriber shall not other than as permitted by the Agreement or Licensor’s written authorization or by law copy, reproduce, translate, adapt, de-compile, modify, reverse engineer, disassemble the IOTech Software or create derivative works of the IOTech Software. If Subscriber requires information relating to the IOTech Software necessary to achieve inter-operability with an independently created IOTech Software program, Subscriber shall make a written request to Licensor to make available such information. Subscriber shall not be entitled to make any copies of any hard copy documentation supplied by Licensor relating to the IOTech Software.

2.8   In the event that the IOTech Software contains or is accompanied by certain third-party software products such third-party software is subject to the respective third-party license terms as may be set forth within the third-party software. 

 

3.      Subscription Fees

                    

3.1               The subscription fees payable by Subscriber in consideration for Subscription (“Subscription Fees”) include IOTech Software license fees and fees for the agreed Services to be provided for the Software. Additional Services (as defined in Section 1 of the Services Schedule), are excluded, except as may otherwise be agreed in writing.

3.2               Licensor shall make an additional charge in accordance with its standard scale of charges from time to time in force for any Additional Services provided by Licensor, including travel time incurred in connection therewith, and associated travelling, accommodation and subsistence expenses. Additional Services will be invoiced following the month in which they are incurred. A minimum charge of 8 hours per day will apply to any Additional Services incurred at the Subscriber’s site(s).

3.3               Unless otherwise advised prior to acceptance of order by Licensor, Licensor shall grant Subscriber a credit facility and Subscriber shall pay Licensor the Subscription Fees due within 30 days of the date of Licensor’s invoice.

3.4               Unless otherwise agreed in writing between the parties the Subscription Fees are annual and are due and payable annually in advance.

3.5               The Subscription Fees are exclusive of all sales or value added taxes, customs duties or government levies (if any) which if applicable shall be reimbursed by Subscriber at cost to Licensor.

3.6               In the event payment is not made within 30 days of invoice, by the Subscriber, Licensor shall be entitled to charge Subscriber a late payment fee of 1% per month, of the overdue amount during the period of delayed payment (both before and after any judgment) without prejudice to Licensor’s right to receive payments on the due dates.

3.7               In the event of non‑payment by Subscriber of any sum due hereunder by the due date, Licensor may serve notice of such default upon Subscriber, and if Subscriber fails to pay in full all amounts owed hereunder within a period of 30 days of receipt of such notice, then Licensor may immediately terminate this Agreement in addition to any other rights Licensor may have in respect of such non‑payment. Licensor also reserves the right, without liability, to forthwith suspend the licenses granted under this Agreement, in the event any payment is overdue from Subscriber.

 

4     Delivery and Acceptance

 

        Further to acceptance of Subscriber’s order, Licensor shall deliver one copy of the Software in machine-readable object code form. Licensor shall use reasonable endeavors to deliver within two (2) working days of order acceptance but shall be under no liability in the event of failure to deliver within this time-scale, which is an estimate only. Unless otherwise agreed in writing delivery terms are FCA (as defined in IncoTerms 2000) Licensor’s premises.  In the event the Software has been evaluated by the Subscriber under the terms of an evaluation license, prior to subscription purchase, the Software shall be deemed accepted upon use of the Software under this Agreement.  If the Software has not been subject to such prior evaluation, Subscriber may reject the Software within 30 days of delivery if the Software does not materially comply with the Documentation (as defined in Section 1 of the Services Schedule) and return it to Licensor in exchange for a full refund.

 

5     Support and Maintenance

 

Licensor shall provide Services to Subscriber in consideration for payment of the Subscription Fees, applicable to all copies of the Software used by Subscriber.

 

6       Warranty and Liability

 

6.1    LICENSOR SPECIFICALLY DISCLAIMS ANY WARRANTY THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR THE RESULTS OF USE WILL MEET CUSTOMER’S REQUIREMENTS.

 

6.2    LICENSOR WARRANTS THAT UPON DELIVERY AND FOR A PERIOD OF 90 DAYS THEREAFTER “WARRANTY PERIOD”, THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION.

 

6.3    IF, WITHIN THE WARRANTY PERIOD, THE CUSTOMER NOTIFIES LICENSOR IN WRITING OF ANY DEFECT OR FAULT THAT IS A NON-COMPLIANCE WITH THE FOREGOING WARRANTY AND SUCH DEFECT OR FAULT DOES NOT ARISE OR RESULT FROM CUSTOMER, OR ANY THIRD PARTY ACTING ON CUSTOMER’S BEHALF, (A) MAINTAINING OR ALTERING, THE SOFTWARE; (B) USING THE SOFTWARE ON ANY COMPUTER SYSTEM(S) OTHER THAN THE SYSTEM FOR WHICH THE SOFTWARE IS LICENSED (“SYSTEM”) ; (C) THE  SOFTWARE OR SYSTEM HAVING NOT BEEN USED IN A PROPER MANNER BY COMPETENT TRAINED EMPLOYEES ONLY, OR BY PERSONS UNDER THEIR SUPERVISION AND IN ACCORDANCE WITH LICENSOR’S REASONABLE INSTRUCTIONS CONCERNING THE USAGE, CONTROL AND TESTING OF THE SOFTWARE, LICENSOR SHALL, AT THE LICENSOR’S OPTION, EITHER (A) CORRECT SUCH DEFECT OR FAULT OR (B) TERMINATE THIS AGREEMENT IMMEDIATELY BY NOTICE IN WRITING TO THE CUSTOMER AND REFUND THE APPLICABLE FEES PAID BY THE CUSTOMER.

 

6.4    IT IS A CONDITION OF THE WARRANTY PROVIDED HEREUNDER THAT THE CUSTOMER PROVIDES ALL INFORMATION NECESSARY TO ASSIST LICENSOR IN RESOLVING THE DEFECT OR FAULT, INCLUDING A DOCUMENTED EXAMPLE OF ANY DEFECT OF FAULT, OR SUFFICIENT INFORMATION TO ENABLE LICENSOR TO RE-CREATE THE DEFECT OR FAULT.

 

6.5    ANY CONDITION, REPRESENTATION OR WARRANTY WHICH MIGHT OTHERWISE BE IMPLIED OR INCORPORATED WITHIN THIS AGREEMENT BY REASON OF STATUTE OR COMMON LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABLE OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARE HEREBY EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.

 

6.6    LICENSOR WARRANTS THAT IT WILL PERFORM THE SERVICES WITH REASONABLE CARE AND SKILL.  IF LICENSOR IS SHOWN TO BE IN BREACH OF THE ABOVE WARRANTY IN RELATION TO PARTICULAR SERVICES THEN LICENSOR’S SOLE LIABILITY SHALL BE AT ITS OPTION TO AS SOON AS REASONABLY PRACTICABLE TAKE SUCH STEPS AS MAY BE REASONABLY NECESSARY TO RENDER THE RESULTS OF SUCH SERVICES AS THEY WOULD HAVE BEEN HAD LICENSOR SUPPLIED SUCH SERVICES IN ACCORDANCE WITH SUCH WARRANTY OR TO REFUND THE VALUE OF THE PARTICULAR SERVICES TO THE CUSTOMER. NO REPRESENTATION OR WARRANTY IS GIVEN BY LICENSOR THAT ALL FAULTS WILL BE FIXED, OR WILL BE FIXED WITHIN A SPECIFIED PERIOD OF TIME.

 

6.7    LICENSOR DOES NOT EXCLUDE OR LIMIT ITS LIABILITY IN NEGLIGENCE FOR DEATH OR PERSONAL INJURY, OR FOR FRAUD, OR OTHERWISE INSOFAR AS ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY LAW.

 

6.8    SAVE AS PROVIDED IN CLAUSE 6.7 ABOVE, LICENSOR SHALL NOT IN ANY CIRCUMSTANCES HAVE ANY LIABILITY FOR ANY LOSSES OR DAMAGES WHICH MAY BE SUFFERED BY THE CUSTOMER (OR ANY PERSON CLAIMING UNDER OR THROUGH THE CUSTOMER), WHETHER THE SAME ARE SUFFERED DIRECTLY OR INDIRECTLY OR ARE IMMEDIATE OR CONSEQUENTIAL, AND WHETHER THE SAME ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE HOWSOEVER, WHICH FALL WITHIN ANY OF THE FOLLOWING CATEGORIES: (I) SPECIAL DAMAGE, EVEN IF THE SUPPLIER WAS AWARE OF THE CIRCUMSTANCES IN WHICH SUCH DAMAGE COULD ARISE; (II) LOSS OF PROFITS; (III) LOSS OF ANTICIPATED SAVINGS; (IV) LOSS OF BUSINESS OR BUSINESS OPPORTUNITY; (V) LOSS OF GOODWILL; (VI) LOSS OF, OR DAMAGE TO (INCLUDING CORRUPTION OF) DATA.

 

6.9    SUBJECT TO CLAUSES 6.7 AND 6.8 ABOVE, THE TOTAL LIABILITY OF LICENSOR, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY AND ALL OTHERS), BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL IN NO CIRCUMSTANCES EXCEED A SUM EQUAL TO THE FEES PAYABLE BY THE CUSTOMER IN THE CONTRACT YEAR IN WHICH THE LIABILITY ARISES.

 

6.10   CUSTOMER HEREBY WAIVES ANY RIGHT TO ANY OTHER REMEDIES OR RELIEFS NOT SET OUT IN THIS AGREEMENT AND SUCH WAIVER SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT HOWEVER SUCH TERMINATION ARISES.

 

6.11  THE CUSTOMER ACKNOWLEDGES THAT:

 

6.11.1      THE LEVEL OF FEES HEREUNDER REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES, AND

6.11.2      IT IS IN A BETTER POSITION THAN LICENSOR TO ASSESS AND MANAGE ITS RISK IN RELATION TO USE OF THE SOFTWARE AND SERVICES.

 

6.12  ALL REFERENCES TO LICENSOR IN THIS CLAUSE 6 SHALL, FOR THE PURPOSES OF THIS CLAUSE ONLY, BE TREATED AS INCLUDING ALL EMPLOYEES, DIRECTORS, SUBCONTRACTORS AND SUPPLIERS OF LICENSOR AND ITS AFFILIATES, ALL OF WHOM SHALL HAVE THE BENEFIT OF THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS CLAUSE.

 

7       Intellectual Property Rights

 

7.1        The Software and all associated copyrights and other intellectual property rights are the property of the Licensor, its affiliated companies, or its licensors.  Subscriber acquires no title, right or interest in the Software other than the licenses granted herein.

7.2         All title, trademarks and copyrights in and pertaining to the Software (including but not limited to any images, photographs, animation, video, audio, music, text, and applets incorporated into the Software), and any copies of the Software are owned by Licensor, its affiliated companies, or licensors.  The Software is protected by copyright, other intellectual property rights, trademark laws and international treaty provisions. Subscriber must treat the Software like any other copyrighted material for archival purposes, and Subscriber may not copy the printed materials accompanying the Software.

7.3         Subscriber may not remove, modify or alter any Licensor copyright or trademark notice from any part or copies of the Software, including but not limited to any such notices contained in the physical and/or electronic media or documentation, in Licensor’s installation dialogue or 'about' boxes, in any of the run-time resources and/or in any web-presence or web-enabled notices, code or other embodiments originally contained in or dynamically or otherwise created by the Software.

7.4        If the Software is, or in Licensor’s opinion may become, the subject of a claim for infringement of the intellectual property rights of a third party, Licensor may at its option and as Subscriber’s sole remedy:

 

                     7.4.1           procure the right to continued use of the Software;

                     7.4.2           replace or modify the Software to make it non-infringing; or

                     7.4.3           repay to the Subscriber the license fee (less a fair value for prior use) and terminate this Agreement.

 

8       Term and Termination

 

8.1        The Subscription commences upon delivery of the Software to Subscriber or if a copy of the Software is already in possession of Subscriber under the terms of a prior evaluation license, upon issue of Licensor’s order acknowledgment (“Effective Date”) and shall continue for the term specified in the particular transaction between us, as confirmed in Licensor’s order acknowledgement, unless terminated sooner in accordance with this Agreement.

8.2        Either party may at any time by at least 2 months’ notice in writing to the other party expiring on the first or any subsequent anniversary of the Effective Date terminate this Agreement with effect from the date of expiry of such notice.

        8.3        Either party may at any time by notice in writing to the other party terminate this Agreement with effect from the date of service of such notice if:

                     8.3.1        the other party commits a material breach of this Agreement which is not remedied, or does not otherwise cease to be material, within 30 days after the non-breaching party has given written notice to the breaching party identifying the breach and requiring it to be remedied; or

                      8.3.2        the other party has ceased business, been adjudged bankrupt or insolvent under the laws of any jurisdiction, made an assignment for the benefit of creditors, or filed a petition of bankruptcy, reorganisation or other insolvency proceeding.

 

9      Consequences of Termination

 

9.1        Termination of this Agreement, for whatever cause, shall be without prejudice to the rights of either party accrued prior thereto, including without limitation any right to payment of any sum and any right to sue in respect of any antecedent breach of this Agreement, and termination shall not affect any provision of this Agreement which, in order to give full effect to its meaning, needs to survive such termination (and all such provisions shall survive such termination to the extent necessary to give full effect to their meanings). Within 14 days following the date of termination of this Agreement, Subscriber shall cease to use the Software and shall either destroy or return to Licensor all of the Software including copies together with Subscriber's written certification by a duly authorized officer that this clause has been complied with in full.

9.2        Termination of this Agreement shall be in addition to and not a waiver of any remedy available to Licensor arising from Subscriber's breach of this Agreement.

 

10    Force Majeure  

 

        Licensor shall not be liable for failure to perform its obligations under the Agreement if such failure results from circumstances beyond its reasonable control, including but not limited to; act of God, outbreak of hostilities, riot, civil disturbance, acts of terrorism, the act of any Government or Authority, fire, explosion, flood, fog or bad weather, power failure, failure of telecommunications lines, failure or breakdown of plant, machinery or vehicles, default of suppliers or sub-contractors, theft, malicious damage, strike, lockout or industrial action of any kind.

 

11    Non-Solicitation

 

        The Subscriber acknowledges that Licensor’s employees engaged in the provision of the Services are a key resource and an important factor in Licensor’s ability to provide the Services and fulfil its obligations hereunder. The Subscriber therefore agrees that it will not either during the course of this Agreement or for a period of 12 months after its completion or termination (for whatever reason) employ, engage the services of, offer employment to, or otherwise entice away from employment, any Licensor employee, or procure or assist any third party so to do.   

 

12    Statutory and Other Obligations

 

        If the cost to Licensor of the performance of this Agreement shall be increased by reason of the making after the Effective Date of any law, order, regulation, or bye-law that shall be applicable to the Agreement, the amount of such increase shall be added to the Subscription fees.   

 

13    Assignment

 

13.1       Subscriber shall not assign sub-license or otherwise transfer any of the rights or obligations under this Agreement without the prior written consent of Licensor.

        13.2      Licensor shall be entitled without the prior written consent of Subscriber to assign sub-contract or otherwise transfer its rights and obligations under this Agreement.

 

14    Reference

       

Subscriber permits Licensor to reference Subscriber as a user of the Software and display Subscriber’s logo in Licensor’s marketing documentation and communications, and on its worldwide web site.

            

15      Export Regulations

 

By downloading or using the Software, Subscriber represents and warrants that it is not located in under the control of or a national or resident of any country which is subject to an applicable embargo or other trade restriction imposed by the U.S. or other government. Subscriber shall not import, export, or re-export the Software to or from any country in contravention of any applicable import or export laws or regulations of the United States or other government.


16      High Risk Activities

 

The Software is not designed, produced or intended for fail-safe performance in applications used in hazardous environments in which the failure of the Software itself could lead directly to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, ("High Risk Activities").  Licensor specifically disclaims any express or implied warranty of fitness for High Risk Activities and Subscriber hereby indemnifies and holds harmless Licensor against claims of any nature arising from failure of the Software when used by it or its Subscribers for High Risk Activities.

 

17       Audit Rights

 

Licensor reserves the right, with reasonable notice and at reasonable times, not exceeding one time per year, to conduct an audit of Subscriber’s records to the extent only that is reasonably necessary to confirm Subscriber’s compliance with the terms of this Agreement.  Without prejudice to any other rights of Licensor, in the event such audit reveals a breach of this Agreement, Subscriber shall reimburse Licensor’s costs of conducting such audit.  

 

18      US Government End Users

 

The IoTech Software and documentation included therein are “commercial items” as that term is defined in 48 C.F.R. 2.101 (October 1995) consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 227.7202-1, 227.7202-3 and 227.7202-4 (June 1995).  If the Subscriber hereunder is the U.S. Government or any agency or department thereof, the Software is licensed hereunder (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.

 

19      General

 

19.1            This Agreement shall be governed by and construed in accordance with the laws of England and all disputes arising in connection with this Agreement shall be subject to the non-exclusive jurisdiction of the English courts and is enforceable by the original parties to it and by their successors in title and permitted assignees. No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.  The original of this Agreement has been written in English.  The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English.

19.2            Neither party shall be in breach of this Agreement if there is any total or partial failure of performance by it of its duties and obligations under this Agreement which is due to causes beyond its reasonable control provided that the party affected by such causes gives notice in writing to the other party at the commencement and cessation of these causes.

19.3            Any notice or other communication required or permitted under this Agreement shall be given in writing to the address of the recipient as notified from time to time and will be deemed to have been given or made when delivered personally; if properly addressed and posted by prepaid certified or registered mail within three business days of posting; if sent by facsimile upon being sent, if confirmed by post; or electronically upon receipt if acknowledged to have been received.

19.4            This Agreement contains the entire agreement between the Licensor and the Subscriber relating to the Subscription and subject to Clause 6.3, supersedes all prior oral or written understanding, arrangements, representations or agreements between them relating to the subject matter of this Agreement.  No amendment, variation or discharge of this Agreement is valid unless accepted in writing by both parties. The parties expressly agree that the terms and conditions of this Agreement shall prevail over any standard terms and conditions printed or referred to in any purchase order or other written documentation issued by the Subscriber.

19.5            The failure of either party to exercise or enforce any rights under this Agreement shall not amount to a waiver of those rights.

19.6            Subscriber represents and warrants that it is and shall remain during the term of this

        agreement in compliance with all applicable laws, regulations and codes, including but not

        limited to all export, data protection, privacy and anti-bribery laws and regulations.

19.7            Subscriber agrees that Licensor’s contact information including Licensor’s contact(s) email address, name and phone number and may be shared by Licensor to Licensor’s distributors and other channel partners for its lawful business purposes. 

19.8            The illegality or invalidity of any part of this Agreement shall not affect the legality or validity of the remainder of it.  Any provision of the Agreement held to be to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law shall be constructed by limiting or reducing it so as to be enforceable to the maximum extent compatible with the applicable law then prevailing.

 

 

 

SERVICES SCHEDULE

 

1     DEFINITIONS

 

The following definitions have the following meanings where used in this Schedule.

 

“Additional Services”             means any services provided by Licensor outside of the contracted scope of Services including any consultancy, training, customised programming assistance, additional services provided at the Subscriber’s site(s) or time incurred due to the Subscriber’s failure to comply with its obligations under this Agreement. Unless otherwise agreed in writing the terms and conditions of this Agreement shall apply to any such Additional Services provided.

 “Business Day”                     means 8 hours between 9:00 a.m. and 5:00 p.m. on a normal working day, Monday to Friday, excluding public holidays, in the United Kingdom, or if the Services are being performed at the Subscriber’s site, then at the site location.

“Documentation”                    means the latest version of any operating manuals, user instructions, specifications and technical literature in printed or electronic form supplied by Licensor to the Subscriber and / or published on Licensor’s website, for aiding the use and application of the Software.

 

"Enhancement"                      means any modification or addition to the Software that materially improves its features, utility, efficiency, function, capability or application.

 

"Error"                                         means a fault of logic, algorithm, or date that affects the Software when used in System operation and is a deviation from the Documentation.

 

“Error Correction”                       means a change made to the program code of the Software that corrects an Error and enables the Software to operate in accordance with the Documentation.

 

“Knowledge Base”                 means a database accessible via Licensor’s World Wide Web site containing articles and information regarding the Software, known problems, workarounds and frequently asked questions (“FAQ’s”).

“Maintenance Release”         means a release of the Software, the version number (in w.x.y format) of which in comparison to the previous release has not changed in the digits before the first decimal point, or in the digit after the first decimal point but has changed in the digit after the second decimal point. Maintenance Releases include available Error Corrections.

“Major Release”                     means a release of the Software, the version number of which (in w.0 format) in comparison to the previous release has changed in the digit before the decimal point. Major Releases include available Error Corrections and significant Enhancements.

“Minor Release”                     means a release of the Software, the version number of which (in w.x format) in comparison to the previous release has not changed in the digit before the decimal point but has changed in the digit after the decimal point. Minor Releases include available Error Corrections and some Enhancements.

Problem Report”                  means a report from the Subscriber to Licensor concerning an Error or request for Technical Assistance entered in the Web-based Support System.

“Services”                               means the technical support, maintenance, advice and assistance to be provided to the Subscriber under the terms of this Agreement, subject to payment of the applicable Subscription Fees.

“Software Release”                means a Major Release, Minor Release, Maintenance Release or Open Source Software Maintenance Release as defined herein. 

“Support Program”                 means the support program ordered by the Subscriber (Standard, Silver or Gold Support Program) and the associated service levels and response times as described in the Service Level Agreement contained in the Appendix hereto.

 “System”                                means the configuration of integrated hardware, firmware, operating system, compiler and third-party software in which the Subscriber is using the Software, as permitted under the licenses to use the Software, or as otherwise agreed in writing.

“Technical Account

Manager”                               means an account manager assigned by Licensor to act as a central point of contact for the Subscriber on support matters and who will be responsible for Licensor achieving its service commitments and complying with its obligations hereunder.

 

“Technical Assistance”          means advice on installation and configuration and basic usage advice.

“Update Centre”                     means an Internet address advised by Licensor from where the Subscriber can access and download Maintenance Releases.

 

“Web-based Support

System”                                  means an Internet based system that enables the Subscriber to enter Problem Reports, check Problem Report status, and obtain on-line information.

 

2   SCOPE OF SERVICES

2.1 The Services to be provided hereunder are specific to the number of users licensed to use the Software, and for which Services have been ordered and the applicable Subscription Fees have been received by Licensor. Support for any third-party products supplied with the Software is subject to any limitations in respect of third party support availability.

 

3    LICENSOR OBLIGATIONS

3.1 Licensor undertakes to provide the Subscriber access to the Web-based Support System, Knowledge Base, and the Update Centre, to provide Technical Assistance and to action Problem Reports in accordance with this Agreement and the Support Program.

3.2 For the duration of the Agreement Licensor undertakes to make available to the Subscriber, free of further charge, copies of Maintenance Releases, Minor Releases and Major Releases of the Software.     

3.3 All intellectual property rights in Software Releases and Documentation and information provided by Licensor hereunder shall remain vested in Licensor (or its affiliates) and its licensors and the use thereof shall be deemed to be licensed to the Subscriber upon the same terms and conditions as contained herein.

3.4 Licensor undertakes to use commercially reasonable efforts to correct reported Errors and incorporate the Error Corrections in the next available Software Release.  The foregoing Error correction service shall not include service in respect of: Errors resulting from any modifications of the Software made by any person other than Licensor; any Software Release that has been used by the Subscriber for more than one year if a more recent Software Release is generally available; incorrect use of the Software or operator error; any Error caused by or arising from faults in the System or any programs used in conjunction with the Software; slow operation or loading problems as a consequence of the effects of configuration or excessive loading of additional configuration or communications software; the Software having been operated on or with a different System to that defined under this Agreement or a System or part of a System not generally supported by Licensor; or any other change to the System which adversely impacts functionality, reliability or performance of the Software.

3.5 Licensor reserves the right to (a) make corrections or improvements to the Software and Documentation at any time without notice or (b) to discontinue Services for the Software or any component thereof, or any medium format, at any time upon at least 90 days written notice to be effective upon the next anniversary of the Effective Date.

 

4     SUBSCRIBER OBLIGATIONS

 

4.1 The Subscriber shall, if requested by Licensor, nominate a representative who will be the central point of contact for the purposes of this Agreement.

4.2 The Subscriber acknowledges that the effectiveness of the Services and adherence to any times for provision of the Services will in large part depend upon the willing co‑operation of the Subscriber with Licensor and the Subscriber hereby undertakes to co‑operate fully with Licensor in all matters pertaining to the Services. 

4.3 Without prejudice to the generality of Clause 4.2, the Subscriber shall:

4.3.1        enter Problem Reports in the Web-based Support System and provide the information required in the relevant fields; 

4.3.2        promptly and as fully as reasonably practicable respond to all communications of Licensor relating to the Services and not delay or hinder Licensor in the provision of the Services;

4.3.3        supply to Licensor such information as Licensor may reasonably require in order to supply the Services including test cases and documented examples of Errors if requested;

4.3.4        if on-site assistance is provided, permit Licensor such access as it reasonably requires (for the purposes of supplying the Services) and supply to Licensor (free of charge), any such facilities as Licensor may reasonably require at the site where the Software is installed;

4.3.5        not itself maintain or alter, or permit or allow any third party to maintain or alter the Software;

4.3.6        not use the Software on any computer system(s) other than the System for which the Software is licensed;

4.3.7        ensure that the Software and the System are used in a proper manner by competent trained employees only or by persons under their supervision and in accordance with Licensor’s reasonable instructions concerning the usage, control and testing of the Software;

4.3.8        keep full security copies of the Software and of the Subscriber's data and computer records in accordance with best computing practice;

4.3.9        co-operate fully with Licensor's personnel in the diagnosis of any Error;

4.3.10     be responsible for ensuring that the necessary operational and environmental conditions are maintained for the use of the Software and System;

4.3.11     ensure that it has a Subscriber representative in attendance at all times at its installation site(s) when Licensor staff or those of its sub-contractors are performing Services, either remotely whilst connected to the System or at the Subscriber’s site and this representative shall be responsible for safe operation of the System.

4.4            Any breach of Clause 4.3.5 or 4.3.6 shall be considered a material breach of the Agreement and shall, without prejudice to any other rights Licensor may have, at Licensor’s option void any obligation by Licensor to provide Services.

4.5            In the event that the Subscriber makes an Error Correction to the source code of the OS Software, Subscriber shall provide details of such Error Correction to Licensor and Licensor shall at its option include the Error Correction in its standard distribution of the OS Software and provide an updated Software Release to Subscriber. Subscriber shall be deemed to have assigned all of its intellectual property rights in any such Error Correction to Licensor on delivery to Licensor without the need for further formality. Licensor shall have no liability whatsoever to Subscriber in respect of any such Error Corrections delivered to Licensor and subsequently included in its standard distribution of the OS Software.  Licensor will feed back any such Error Corrections to the EdgeX Foundry community under the terms of the applicable contribution agreement.

            

 

 

APPENDIX

 

SERVICE LEVEL AGREEMENT

 

CONTACT DETAILS

The Subscriber shall be provided with applicable username and password information to enable access to the Web-based Support System, Knowledge Base and the Update Centre.

 

SERVICE LEVELS

Licensor will use its reasonable endeavours to provide the Services to the applicable service levels detailed in this Appendix, in addition to its basic obligations in the Agreement and Services Schedule.  

Problem Reporting

To create a Problem Report, the Subscriber must use the Web-based Support System in the first instance. Each Problem Report raised is assigned a severity level, directly related to the severity level of the problem operationally as described in the table below and input by the Subscriber at the time of entry. As additional data becomes available, it is possible that the severity level of a problem will be adjusted during problem diagnosis/clarification.  Licensor also reserves the right, after consultation with the Subscriber, to reassign a severity level using its reasonable professional judgement in the unlikely event that in Licensor’s opinion the Subscriber has mistakenly or unreasonably assigned an incorrect severity level.  

 

Severity Level Table:

Severity Level

Description

1 – Urgent

A problem that severely impacts use of the Software for production purposes. The situation halts business operations and no workaround exists.

2 – High

A problem in which the Software is still functioning, however use of it for operational purposes is severely affected.  No workaround exists.

3 – Medium

A problem that involves partial, non-critical loss of the Software for production purposes.  For production purposes there is medium-to-low impact on business operation. Business operations continue to function perhaps with the use of a workaround. For development purposes, the issue may be holding up a project from entering production.

4 – Low

A general usage question, reporting of a documentation error or a recommendation/request for a future product enhancement. For production purposes there is little impact on business operations. For development purposes there is medium-to-low impact on business operations which can continue with perhaps the use of a procedural workaround.

 

 

Standard Support Program:

 

Technical Account Manager

A Technical Account Manager will be appointed by Licensor to provide a service to the Subscriber that includes management of Problem Report status and regular reports and meetings.  With regard to Problem Reports that cannot be resolved within time thresholds set by the Technical Account Manager such Problem Reports will be prioritised and escalated so that the appropriate resources are allocated to their resolution.

 

Cover Times

Cover is provided during Business Days. 

 

Response Times

Licensor will acknowledge Problem Reports (via e-mail) and assign a qualified support engineer (or engineers), to commence work to identify and resolve Problem Reports, within the following target performance levels:

 

 

Severity Level

Standard

1 – Urgent

4 hours

2 – High

1 business day

3 – Medium

2 business days

4 – Low

4 business days

 

Response times are measured within the contracted cover time from receipt of the Problem Report. e.g. (i) For a Critical Problem Report received at 10 a.m. an engineer will be assigned by 2 p.m. on the same day. (ii) For a Serious Problem Report received at 2 p.m. an engineer will be assigned, by 2 p.m. on the next Business Day.

 

Problem Report Resolution

The assigned engineer (or engineers) will work on a Problem Report until the issue is resolved, as detailed in the following table:

 

 

Severity Level

Standard

1 – Urgent

During Business Days

2 – High

During Business Days

3 – Medium

Scheduled for next available maintenance slot

4 – Low

Scheduled for next available maintenance slot

 

Silver Support Program:

 

Technical Account Manager

A Technical Account Manager will be appointed by Licensor to provide a service to the Subscriber that includes management of Problem Report status and regular reports and meetings.  With regard to Problem Reports that cannot be resolved within time thresholds set by the Technical Account Manager such Problem Reports will be prioritised and escalated so that the appropriate resources are allocated to their resolution.

 

Cover Times

Cover is provided between the hours of 8:00 a.m. and 8:00 p.m. Monday to Friday, excluding public holidays in United Kingdom, to process Problem Reports received. 

 

Response Times

Licensor will assign a qualified support engineer (or engineers), to commence work to identify and resolve Problem Reports, within the following target performance levels:

 

Severity Level

Silver

1 – Urgent

4 hours

2 – High

1 business day

3 – Medium

2 business days

4 – Low

4 business days

 

Response times are measured within the contracted cover time from receipt of the Problem Report. e.g. (i) For a Critical Problem Report received at 3 p.m. an engineer will be assigned by 7p.m. on the same day. (ii) For a Serious Problem Report received at 2 p.m. an engineer will be assigned by 2 p.m. on the next Business Day.

 

Problem Report Resolution

The assigned engineer (or engineers) will work on a Problem Report until the issue is resolved, as detailed in the following table:

 

Severity Level

Silver

1 – Urgent

8 a.m. to 8 p.m. Mon-Fri excl. UK public holidays

2 – High

8 a.m. to 8 p.m. Mon-Fri excl. UK public holidays

3 – Medium

Scheduled for next available maintenance slot

4 – Low

Scheduled for next available maintenance slot

 

Gold Support Program:

 

Technical Account Manager

A Technical Account Manager will be appointed by Licensor to provide a service to the Subscriber that includes management of Problem Report status and regular reports and meetings. For Problem Reports that cannot be resolved within time thresholds set by the Technical Account Manager such Problem Reports will be prioritised and automatically escalated in accordance with predefined guidelines agreed with the Subscriber so that the appropriate resources are allocated to their resolution.

 

Cover Times

Cover is provided 24 hours per day, 365 days per year.

 

Response Times

Licensor will assign a qualified support engineer (or engineers), to commence work to identify and resolve Problem Reports, within the following target performance levels:

 

Severity Level

Gold

1 – Urgent

Immediate (1 hour)

2 – High

Immediate (2 hours)

3 – Medium

1 Business Day

4 – Low

2 Business Day

 

Response times are measured within the contracted cover time from receipt of the Problem Report. 

 

Problem Report Resolution

The assigned engineer (or engineers) will work on a Problem Report until the issue is resolved, as detailed in the following table:

 

Severity Level

Gold

1 – Urgent

24 hrs x 7 days  

2 – High

8 hrs x 7 days  

3 – Medium

During Business Days

4 – Low

Scheduled for next available slot

 

 

Escalation Process

Regardless of the Support Program contracted, for problems that cannot be resolved in a reasonable time schedule, Licensor will implement its priority-based problem escalation process that can be used by customers to increase the priority of an issue so that additional expert resources can be allocated to enable its resolution.