End User License Agreement
This End User License Agreement (“EULA”) is entered into between you (You”) and us (“Avantra”), together the Parties, and shall come into force at such time as you purchase Software and/or Support Services and govern Your use of them. If you download, install or use the Software, you accept and agree to be bound by this EULA. If you are an individual acting on behalf of an entity, you represent and warrant that you have the authority to enter into this EULA on behalf of that entity. If you do not have such authority, you are solely responsible for your use of the Software. If you do not accept the terms of this EULA, then you are not permitted to install, access, download or otherwise use the Software
2. EULA Definitions
In this EULA, capitalized terms have the following meanings unless the context otherwise requires:
“Business Use” means use of the Software and/or the Support Services for Your business purposes only;
“Confidential Information” means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information;
“Effective Date” means the effective date specified in the Order;
“License Fees” means the license fees set forth in the Order that You will pay for the right to access the Software and Support Services in accordance with the terms of this EULA;
“Malicious Code” means, without limitation, any automatic restraint, viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs that interfere with the provision of the Software;
“Order” means an Avantra order for Software and Support Services (as applicable) signed by You and Avantra;
“Software” means the executable, object code version of the particular Avantra software and any related updates or releases specified in the Order;
“Support Hours” “Working Day” or “Office Hours” means 08:00 to 17:00, Monday to Friday excluding public holidays in the time zone defined in the Order;
“Support Services” means technical support for the Software of the type as specified the Order, which may be updated by Avantra from time to time;
“Support Services Fees” means the fees for the Support Services (if applicable) set forth in the Order;
“User(s)” means Your employees, consultants, contractors, agents and customers who use the Software for the Business Use in the territory specified in the Order; and
“Website” means www.avantra.com and any other domain names designated by Avantra from time to time.
3. Rights Granted
3.1 Subject to Your compliance with the terms of this EULA and the program documentation, Avantra hereby grants to You a non-exclusive, non-transferable, non sub licensable license to use the Software and the Support Services solely for Business Use for the number of licenses detailed in the Order. For the avoidance of doubt, such license includes the right for You to use the Software and Support Services for the provision of services to Your customers and You acknowledge and agree that You shall be held responsible and liable for the acts and/or omissions of Your customers as if they were Your own.
3.2 You acknowledge that the Software will not operate without a license key. You will not distribute or provide access to such key to a third party, unless that third party is a permitted third party in the Order. You agree that Avantra is not responsible for the unauthorized distribution or sharing of Your license keys.
4. Restrictions on Use
You may not:
- remove or modify any program markings or any notice of Avantra proprietary rights;
- make the programs or materials resulting from the Software 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 Software You has acquired);
- modify, adapt, alter, translate, or create derivative works from the Software or documentation;
- combine or merge the source code of the licensed Software with other software, including without limitation, open source software which would require us to disclose, license, distribute or otherwise make all or any part of such Software available to anyone, or grant others any rights to modify the Software;
- sublicense (other than to Your customers for the Business Use in accordance with clause 2.1), distribute, sell, lease, rent, loan, or otherwise transfer the Software or the program documentation to any third party;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the licensed Software except as permitted by law (You acknowledges that the program documentation provides You with necessary requirements to achieve any integration with software or systems used by You);
- use the Software to store or transmit infringing, obscene, libelous, Malicious Code or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights;
- use the Software to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- copy, modify, transmit, distribute, frame or mirror the Software in any form or media or by any means;
- interfere with, damage or disrupt the integrity or performance of the Software;
- attempt to gain or assist third parties to gain unauthorized access to the Software or the Support Services or their related systems or networks, or
- access the Software or the Support Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes
- Complement server licences with custom checks to monitor Avantra native monitored objects types like SAP Systems, SAP Instances, Databases, SAP Business Objects or Cloud Services. Avantra's licences for Servers only give access to Server specific features. Infringement of this restriction will lead to charges based on the then current prices for SAP System Object prices, for the period of time Servers' usage contravened this stipulation. These extra charges will be invoiced monthly until the licence infringement ceases.
5. Your Obligations and Acknowledgements
5.1 You shall permit Avantra to inspect and have access to any premises at or on which the Software is being kept or used and have access to any records kept in connection with this EULA, for the purpose of ensuring You are complying with the terms of this EULA, provided that Avantra shall provide reasonable notice of such inspection.
5.2 At Avantra’s request, You shall promptly furnish Avantra with written certification verifying that the Software is being used in accordance with this EULA, in the territory specified in the Order. You shall notify Avantra as soon as You become aware of any unauthorized use of the Software.
6. Software License Re-activation
6.1 The Software license will remain activated for an initial thirty (30) day period from installation ("Initial Activation Period"). After the Initial Activation Period the Software license will require either automatic or manual re-activation ("Re-activation").
6.2 The Software will attempt automatic Re-activation every twelve (12) hours. If the Software cannot access the internet and automatic Re-activation fails, You are required to perform manual Re-activation every thirty (30) days before the activation period expires (this timeframe may be amended subject to written agreement by Avantra) ("Expiry Period") to keep the license valid.
6.3 Re-activation of the Software license provides Avantra with the following information: (i) the version of the Software You are using; (ii) the lowest and highest version numbers of all installed and operational agents; (iii) the hostname, operating system name (e. g Windows or Linux), and MAC address of the computer running the Software; (iv) the number of active licensed objects and type of instances; and (v) the Xandria internal HW Key of the host running the Software.
6.4 Failure by You to either: (a) provide access to Avantra’s activation servers over the internet (i.e., to enable automatic Re-activation); or (b) to perform manual Re-activation prior to expiration of the Expiry Period, shall result in Your Software license being suspended until either: (a) access for automatic Reactivation has been enabled; or (b) manual Reactivation has taken place, as appropriate.
7.1 Avantra warrants that: (i) the Software licensed to You will operate in all material respects as described in the applicable program documentation, under normal use and circumstances for one year after delivery (“Software Warranty Period”); and (ii) it will use reasonable technical means to ensure that the Software does not contain any Malicious Code or other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software.
7.2 Avantra will, at its own expense and at its sole discretion and Your exclusive remedy for any breach of these warranties, do one of the following: (i) use commercially reasonable efforts to correct any reproducible error in the Software reported to Avantra by You in writing during the Software Warranty Period; (ii) replace the Software; or (iii) terminate the license immediately by notice in writing to You and refund any portion of the License Fees paid by You prior to the date of termination (less a reasonable sum in respect of Your use of the Software up to the termination date). Any such error correction or replacement provided to You will not extend the original Software Warranty Period.
7.3 The express warranties are in lieu of all other warranties, express, implied, or statutory regarding the Software, any related services (including the Support Services) and related documentation, and Avantra specifically disclaims all warranties of merchantability and fitness for a particular purpose.
7.4 The express warranties do not apply to damage resulting from misuse, abuse or computer or electrical malfunction, or if the Software has been installed, used or operated other than in accordance with instructions furnished by Avantra or the Software documentation. Avantra does not warrant that Your use of Software will be error-free, uninterrupted, virus-free, or secure. You acknowledge that it relies on no warranties other than the express warranties in this EULA.
8. Limitation of Liabilities
Avantra’s liability to You under this EULA, for all losses, costs, expenses and damages, whether arising in contract, by reason of negligence or otherwise, will not in the aggregate exceed a sum equal to the total License Fees received by Avantra from You in the 12 month period immediately preceding the event giving rise to such liability. In no event (to the extent not prohibited by law) will Avantra be liable for: (i) loss resulting from any defect or deficiency which Avantra remedies within a reasonable time; or (ii) any indirect, special, incidental or consequential costs, losses, damages or expenses; or (iii) loss of business, profits, revenue, goodwill or anticipated savings; or (iv) loss or corruption of data; or (v) any sums paid by You to a third party; or (vi) loss which could have been avoided by You following Avantra’s reasonable advice and instructions.
9. Support Services
9.1 Avantra shall provide the Support Services during the License Term subject to the payment by You of the License Fees and Support Service Fees (if applicable) as detailed in the Order. Support Services shall only be provided during Support Hours. Avantra does not guarantee that it will be able to resolve all questions or errors to the Software.
9.2 Support Services are contingent on Your compliance with the following additional obligations: (i) Your personnel shall be trained in use of the Support Services; (ii) You shall provide Avantra with sufficient documentation, data, details and assistance with respect to any reported errors; and (iii) You shall assist Avantra to diagnose and correct reported errors by providing: (a) all relevant documentation and records, including sample output and other diagnostic information; (b) interaction with personnel who have authority to implement remedial actions as instructed by Avantra; and (c) access to Your live production environment in which the Software is used to the extent required to provide the related Support Services. You acknowledge that failure to provide such assistance will affect Avantra’s ability to provide Support Services.
9.3 Avantra shall have no obligation to provide Support Services in connection with any error, questions or problems that arise from: (i) use of the Software in a manner other than described in this EULA; (ii) the negligence or intentional misconduct of any User; (iii) failure by You to implement reasonable recommendations in respect of or solutions to errors previously advised by Avantra; or (iv) issues caused by third party software or this party hardware.
9.4 Provision of Support Services as described in this clause 8 is Avantra’s sole obligation, and Your sole remedy, with respect to the support of the Software. Avantra shall have no other liability or obligation to You with respect to any errors or other real or perceived problems with the Software.
10. Intellectual Property Ownership and Indemnity
10.1 Avantra (and its licensors, where applicable) shall own all right, title and interest to the Software (including all intellectual property rights contained therein) and any other materials created or developed by Avantra pursuant to this EULA, including any and all enhancements, modifications, extensions and derivative works thereof. This EULA does not convey to You any rights of ownership in or related to the Software or to any other intellectual property rights owned or used by Avantra hereunder. The Avantra name and logo as the product name associated with the Software are trade marks of Syslink Xandria Ltd (and its licensors, where applicable), and no right or license is granted to use them.
10.2 Avantra shall indemnify You against any claim that the normal use of the Software in accordance with this EULA and the program documentation infringes the US copyright, patent or trademark rights of any third party provided that: (i) Avantra is given immediate and complete control of such claim; (ii) You does not prejudice Avantra’s defense of such claim nor make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of Avantra; (iii) You at Avantra’s expense give Avantra all reasonable assistance with such claim; (iv) such claim does not arise from an intentional tortious act or Your negligence or breach of this EULA; (v) such claim is not based upon the use of the Software in an application or environment for which the Software was not designed (vi) such claim does not arise from open source components or third party materials or combination, operation or use of the Software in or with any technology or service not provided by Avantra (vii) such claim does not arise as a result of modifications and/or improvements of the Software introduced or made by You.
10.3 Avantra shall at its option have the right to change all or any part of the Software or the Support Services in order to avoid any infringement.
10.4 You shall ensure You have all the rights and permissions necessary to use the Software in accordance with this EULA, including the appropriate licenses for the use of SAP software in conjunction with the Software.
10.5 This clause states the entire liability of Avantra to You in respect of the infringement of the copyright, patent or trade mark rights or intellectual property rights of any third party.
10.6 You will indemnify, defend and hold harmless Avantra and its affiliates and their respective officers, directors, employees, agents, subcontractors, successors and assigns from and against any and all losses, costs and expenses (including reasonable attorneys’ fees) related to any third party claim arising from or related to (i) facts that, if true, would constitute Your breach of any term of this EULA; (ii) Your infringement or alleged infringement of the intellectual property rights of any party; (iii) Your or Your Users’ gross negligence, recklessness or wilful misconduct; or (iv) Your or Your Users’ use of the Software or product documentation outside of the scope of the licenses granted herein.
11. Term and Termination
11.1 This EULA may be terminated by Avantra if You (a) fail to pay any Licence Fees when due, or (b) otherwise commit a breach of any term of this EULA which breach is irremediable or (if such breach is remediable) fail to remedy that breach after being notified in writing to do so
11.2 Upon termination or expiry of this EULA, all rights, licenses and authorizations granted to You hereunder will immediately terminate and You will: (i) immediately cease all use of and other activities with respect to the Software (and related documentation); (ii) within 5 business days deliver to Avantra, or at Avantra’s written request destroy, and permanently erase from all devices and systems You directly or indirectly controls, the Software, related documentation and Avantra’s Confidential Information; and (iii) certify to Avantra that it has complied with these requirements.
12. Confidentiality and Data Protection
12.1 Neither party shall disclose to any person or entity any information about the Software or other Confidential Information that is furnished to or otherwise becomes known to the other. Each party’s obligation to maintain the confidentiality of such information shall not apply to information which: (a) was known to the receiving party before receiving such information; (b) is in the public domain; or (c) is received by the receiving party from a third party who was legally entitled to make an unrestricted disclosure.
12.2 Each party agrees that it may only use any Confidential Information that it receives from the Disclosing Party for the purpose of performing its obligations or exercising its rights under this EULA (“Permitted Purpose”), and that it may only disclose such Confidential Information to its officers, employees, contractors and agents to the extent they need to know and use it for the Permitted Purpose. Each party shall ensure that its officers, employees, contractors and agents are bound by equivalent obligations in respect of the Confidential Information to those set out hereunder and shall use its best efforts to ensure that they abide by such obligations.
12.3 If either party is compelled by law, regulation or a court of competent jurisdiction to disclose any Confidential Information belonging to the other party, to the extent permitted by law, it will promptly notify the other party so it may seek a protective order or other appropriate remedy, and cooperate, at the other party’s expense, in seeking such order or other remedy. If disclosure is ultimately required, the party will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment and continue to treat such Confidential Information in accordance with its obligations under this clause.
12.4 You acknowledge and agree that Avantra shall monitor and collect usage data from customers for the purposes of developing and improving its Software and service offering. For the avoidance of doubt this shall be aggregate, anonymized data, not personal data and shall be classified as Confidential Information and treated as such in accordance with the terms of this EULA.
13. No Assignment
You will not assign or otherwise transfer this EULA, or any of your rights and obligations under this EULA, without our prior written consent. Any assignment or transfer in violation of this clause 12 will be void. Subject to the foregoing, this EULA will be binding upon, and inure to the benefit of, the parties and their respective permitted successors and assigns.
14. The Agreement
14.1 This EULA and all documents referred to in it, constitute the entire Agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings and communication, whether written or oral. In the event of a conflict between the terms of this Agreement and the terms of any purchase orders (or similar documents) issued by the Licensee (or any of their affiliates), the terms of this Agreement govern to the extent of the conflict.
14.2 Nothing in the Agreement shall constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in the Agreement. Neither party shall have, nor represent that it has any authority to make commitments on the other party’s behalf.
This EULA is governed by the substantive and procedural laws of Illinois, USA, and Licensee agrees to submit to the exclusive jurisdiction of, and venue in, the courts in Illinois, USA. The UN Convention on Contracts for the International Sale of Goods (C.I.S.G) is not applicable.
16. Export Controls
Export and use of the Software may be subject to export control laws and regulations, including prohibition. By installing, activating or using this Software, You confirm that You will not export or re-export the Software without all required foreign government licenses. You will defend, indemnify, and hold harmless Avantra from and against all fines, penalties, liabilities, damages, costs and expenses incurred as a result of any violation of such laws or regulations by You or any of Your agents or employees.