Keypro SaaS Solution - End User License Agreement

Keypro SaaS Solution End User License Agreement (“Terms”)

1. Scope of the Terms

Keypro Oy’s (“Keypro”) distributor (“Distributor”) has entered an Agreement (defined in Section 2) with its end user (“End User”) on the provision to the End User of an access to the Keypro Solution (defined in Section 2) over a data network. The End User agrees that it has agreed to and is bound by these Terms. These Terms have been entered between Keypro and the End User.

2. Definitions

The following terms shall have the meanings assigned to them herein:

“Agreement” means an agreement, in which the Distributor and the End User agree on the provision to the End User of an access to the Keypro Solution, and possibly on provision of services related to the Keypro Solution by the Distributor.

“Documentation” means user manuals, release notes, installation notes, tutorials, training materials and other written or electronic documentation that Keypro or the Distributor provides to the End User or that can be accessed through the Keypro Solution.

“Intellectual Property Rights” means any and all intellectual property rights, such as patents, inventions (whether or not patentable), industrial designs, utility models, trademarks, logos, chip topography rights, database rights, trade secrets, domain names, trade dress, techniques, methods, processes, discoveries, copyrights (including without limitation right to amend and further develop as well assign one’s rights), rights in design, and rights in know-how, in each case whether registered or unregistered, whether registerable or not, and including applications for grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may now or at any time hereafter exist anywhere in the world.

“Keypro Solution” means software published by Keypro itemized in the Agreement. The Keypro Solution is defined in its Documentation (excluding marketing materials) as may be modified by Keypro at any time, and it includes the modifications, enhancements, corrections, updates and upgrades of the Keypro Solution, that are published by Keypro generally to the use of its and its distributors’ customers at any time. The Keypro Solution will be updated by the Distributor to the most up-to-date released version of the Keypro Solution maximum once a Year.

“Subcontracting Partner” means a third party, who uses the Keypro Solution on behalf of End User.

“Year” means the period of twelve (12) months from the grant of the license hereof to the End User and each consecutive period of twelve (12) months thereafter during the term of the license granted in these Terms

3. Grant of License

The End User may, during the term of the license granted in these Terms and during the payment of the related license fees to the Distributor, use the Keypro Solution in the End User’s own internal operations by using the designed functionalities of the Keypro Solution, in accordance with the Documentation (excluding marketing materials). The End User shall comply with the restrictions and limitations that apply to the licensed use of the Keypro Solution, such as the limitations in the length of a network to be documented with the aid of the Keypro Solution. The End User shall also comply with any technical limitations in the Keypro Solution that only allow certain way(s) to use the Keypro Solution. The number of the user names and passwords provided to the End User and the user rights of the users are agreed in the Agreement, and if no such number is agreed, one (1) administrator user name and password will be provided to the End User. During the term of the license to use the Keypro Solution, the End User may use the Documentation internally to support the licensed use of the Keypro Solution. The End User may make and maintain one (1) back-up copy of the Documentation for archival purposes. Subcontracting Partner(s) may use the Keypro Solution and the Documentation within the limits of the above said license, solely on End User’s behalf. There are no implied licenses.

Except as expressly permitted in these Terms, the End User may not:

a) rent, lease, license, loan, assign, resell or otherwise transfer the Keypro Solution or the Documentation or any copy thereof or to permit the Keypro Solution or the Documentation to be used, directly or indirectly, by any third party;
b) use the Keypro Solution to offer service bureau or time-sharing services to third parties;
c) disassemble, decompile or reverse engineer the Keypro Solution (even if this would be technically possible);
d) modify or create derivative works of the Keypro Solution (even if this would be technically possible) or the Documentation; or
e) use, reproduce or copy the Keypro Solution (even if this would be technically possible) or the Documentation.

The End User shall comply with the laws and regulations applicable to its use of the Keypro Solution and the Documentation.

In the Keypro Solution, the Distributor and Keypro may monitor the End User’s use of the Keypro Solution and the Documentation for the purposes of calculating the license and support fees and for verifying the End User’s compliance with these Terms and the Agreement.

The End User shall be the personal data controller regarding the personal data of its users and shall ensure it has gained the necessary consents from its users entitling the Distributor, Keypro and their subcontractors to store and process the personal data for the purposes of providing their services, providing, improving, updating and modifying the Keypro Solution, resolving of errors and defects and performing other tasks required subject to the Agreement.

4. Operation of the Keypro Solution

Keypro may suspend the operation of or access to the Keypro Solution:

a) for the purposes of installation, repair or maintenance work;
b) for the purposes of installation, change or maintenance of public networks, due to errors in software or repair of equipment or a security risk, or as required by law or a governmental order or if Keypro suspects misuse; or
c) the Distributor has informed Keypro that the End User has not fulfilled its payment duties under the Agreement related to the Keypro Solution.

The Distributor performs the support services for the Keypro Solution as agreed in the Agreement. In performance of the support services, the Distributor is not liable for errors in the Keypro Solution that are caused by: (a) misuse of the Keypro Solution such as faulty installation or use in violation of the usage instructions or the provisions of the Agreement or the Terms, performed by anyone else than Keypro or the Distributor; (b) modification or repair of the Keypro Solution by anyone else than Keypro or the Distributor; or (c) any product, service, materials or data not delivered by Keypro or the Distributor, such as maps of or licensed by the End User. Also, Keypro or the Distributor do not have any other liability for damages caused by the causes (a) – (c) described above. Also, in such circumstances, no agreed performance requirements with regard the Keypro Solution are valid. There shall not be any other warranties, either express or implied with regard the Keypro Solution. Keypro and the Distributor expressly disclaim any implied warranties for the Keypro Solution and the Documentation, including without limitation to, warranties of merchantability or fitness for a particular purpose. The Distributor may set also other prerequisites and conditions for its support services in the Agreement.

The End User shall at its expense acquire the equipment, connections, software and data security that are required for its use of the Keypro Solution, according to the requirements set by Keypro from time to time.

The End User’s users shall maintain usernames and passwords diligently and they may not be disclosed to third parties. The End User shall be responsible for the use by using its usernames and passwords.

5. Intellectual Property Rights and Confidentiality

Any and all Intellectual Property Rights in and to and relating to the Keypro Solution and the Documentation, and any modifications, translations, amendments and derivatives thereof (by whomever made) are and shall belong to Keypro and/or its licensors.

The structure of the Keypro Solution and the ideas, methodologies, techniques, expression and concepts contained in or expressed by the Keypro Solution and the results of any benchmark, comparisons or other tests of the Keypro Solution are Keypro’s confidential information, to the extent Keypro has not made them generally available to the public. The End User may not disclose them to third parties and the End User may use them solely for the purpose to use the Keypro Solution and the Documentation as licensed hereunder. The End User may, however, subject to a confidentiality provision not less strict than herein, disclose them to the Subcontracting Partner(s) to the extent required for the Subcontracting Partner(s) to perform their duties on End User’s behalf as set out in Section 3. The End User shall be liable for the acts and omissions of the Subcontracting Partner(s).

6. Liability

The Distributor or Keypro shall have no liability for any indirect, incidental, special or consequential damages such as for loss of profit, revenue or goodwill, business interruption or punitive damages, or for cost of cover purchase or loss of data or for damages payable to third parties, even if the Distributor and/or Keypro have been advised of the possibility of such damages.

In no event shall the Distributor’s and Keypro’s aggregate maximum liability (including but not limited to possible price returns or reductions due to the same causes of action) arising out of or related to the Keypro Solution and the Documentation or other issues governed or related to the Terms, for any causes of action during any Year, exceed the amount of the license fees paid by the End User to the Distributor during the said Year.

The limitations of liability in this Section shall apply to all causes of action or claims in the aggregate, including, without limitation, breach of contract, breach of warranty, negligence, strict liability or misrepresentation, and these limitations shall apply notwithstanding the failure of essential purpose of any remedy. The limitations of liability shall not apply to damages caused by gross negligence or intentional act.

For the avoidance of doubt, as Keypro is not the End User’s distributor, any claims that End User may have arising out of or related to the Keypro Solution, the Documentation or other issues governed or related to the Terms or the Agreement shall be brought against the Distributor and not against Keypro. The Distributor and the End User may agree in the Agreement on other limitations of liability applicable between them, but they may not agree to extend Keypro’s liability from what is set out in these Terms.

7. Termination

7.1 Termination of the Licenses

Without limiting any termination right in the Agreement: the Distributor and/or Keypro may terminate the End User’s licenses granted in these Terms with a written notice in case the End User commits a material breach of the Terms and fails to remedy the same within twenty (20) days after receipt of Keypro’s or the Distributor ’s written notice.

7.2 Events Upon Termination

Without limiting any events upon termination subject to the Agreement, upon termination of the End User’s licenses granted in these Terms:

a) the End User shall cease the use of the Keypro Solution and the Documentation, and
b) the End User shall at its expense return the Documentation to the Distributor, or as instructed by the Distributor, destroy the Documentation and confirm the destruction in written signed form.

8. Miscellaneuous

8.1 Force Majeure

The Distributor and Keypro shall be discharged from their obligations and liability in the case of factors due to an impediment beyond the affected party’s reasonable control. Such events of force majeure (“Force Majeure”) shall include (without being limited to) war, strikes and other labour disputes, acts of government, natural disasters, accidents, fire, failures of telecommunication, general shortages of energy, and failures in Internet and other networks outside the respective party’s control. A delay of a subcontractor shall be deemed as Force Majeure in case the delay of the subcontractor is also caused by Force Majeure.

8.2 Assignment and Subcontractors

In case the distribution agreement between Keypro and the Distributor is terminated, the Distributor may assign the Agreement to Keypro for Keypro to continue to provide access to the Keypro Solution to the End User. The Distributor shall have the right to subcontract its obligations to Keypro and Keypro to its subcontractors.

8.3 Survival

Upon any termination of the licenses granted hereunder, the provisions of the Terms relating to Intellectual Property Rights, confidentiality, limitation of liability and this Section “Miscellaneous” shall survive. Also, any other provisions which by their nature contemplate effectiveness beyond the termination of the licenses granted hereunder, shall survive the termination.

8.4 Governing Law and Disputes

These Terms shall be construed in accordance with the laws of Finland excluding its choice of law provisions and the UN Convention on Contracts for the International Sale of Goods. All disputes arising out of the Terms shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of arbitration shall be Helsinki, Finland.

The language of the arbitration shall be English. The arbitration award shall be final and binding on the parties of the arbitration. Notwithstanding the above, the Distributor and Keypro are entitled to seek equitable and/or injunctive relief to prevent or stop a violation of the terms and conditions in these Terms, in any court of law.