Keypro Standalone Solution - End User License Agreement

Keypro Standalone Solution End User License Agreement ("Terms")

1. Scope of the Terms

Keypro Oy’s (“Keypro”) distributor (“Distributor”) has entered into an Agreement (defined in Section 2) with its end user (“End User”) on the supply of the Keypro Solution (defined in Section 2) to the End User. The End User agrees that it has agreed to and is bound by these Terms. These Terms have been entered into 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 supply of the Keypro Solution to the End User, 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 are stored on the Keypro Solution media or files.

“Environment” means the hardware and software environment, where the Keypro Solution may be used, specified in the Documentation, the Agreement or otherwise by Keypro.

“Error” shall mean an error in the Keypro Solution, which can be reproduced and which causes the Keypro Solution not to function materially as set out in the Documentation.

“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), and it includes the modifications, enhancements, corrections and Releases of the Keypro Solution, that are supplied to the End User at any time.

“Release” means any new version or release of the Keypro Solution with a changed version or release number(s), letter(s) or other symbol(s) that identify versioning of the Keypro Solution, published by Keypro, that may include e.g. (i) changes to the Keypro Solution that remove Errors from or add fixes to the Keypro Solution, (ii) enhancements to the functionalities of the Keypro Solution or (iii) new minor or major functionality to the Keypro Solution.

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

“Third Party Program(s)” means software proprietary to third parties, such as database software, that is delivered to the End User by the Distributor or Keypro, in connection with the supply or use of the Keypro Solution.

“Warranty Period” means a period of thirty (30) days from the date of delivery of the first Keypro Solution copy to the 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

Subject to the End User’s compliance with these Terms and payment of the applicable license fee, the End User may install the Keypro Solution in the applicable Environment and 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. If not otherwise agreed in the Agreement, the End User may install and use the Keypro Solution on one server computer at a time. The Keypro Solution will be supplied to the End User in object code format only. 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. 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 Keypro Solution and 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;
d) modify or create derivative works of the Keypro Solution or the Documentation; or
e) use, reproduce or copy the Keypro Solution or the Documentation.

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

The Keypro Solution may include features that transmit automatically information to the Distributor and/or Keypro on the End User’s past and current 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 Keypro Solution may also include features that prevent the use of the Keypro Solution, in case of unauthorized use. If the said information for any reason is not transmitted to and received by the Distributor and/or Keypro the End User shall permit the Distributor or Keypro (as selected by the Distributor and Keypro) to audit the End User’s past and current use of the Keypro Solution for the purposes of calculating the license and support fees and for verifying the End User’s compliance with these Terms and the Agreement. For the purposes of such audit, the End User shall allow access to any representative or advisor of the Distributor or Keypro to the databases, hardware and software where such information can be obtained. Such audit may be conducted at maximum once every six (6) months. The audited information shall exclude any third party confidential information that does not include any above said information. The non-public information about the End User’s business and affairs gained during any such audit shall be the End User’s confidential information, which may be used by Keypro and the Distributor solely to enforce the terms and conditions of the 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.

The use of the Third-Party Programs is governed by their respective license terms.

4. Warranty and Support for the Keypro Solution

The Distributor will use commercially reasonable efforts to correct the Errors notified by the End User to the Distributor prior to the expiration of the Warranty Period, and the Distributor will either provide to the End User a copy of a corrected version of the Keypro Solution or, alternatively, a file including the correction or instructions for the End User to bypass the Error or correct it. The Distributor will perform the warranty corrections remotely or in other manner the Distributor deems appropriate. This warranty shall not apply if the Error is 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;
c) any product, service, materials or data not delivered by Keypro or the Distributor, such as maps of or licensed by the End User;
d) the Third-Party Programs;
e) use of the Keypro Solution by number of concurrent users exceeding the licensed or approved number of concurrent users;
f) use of the Keypro Solution in other than the Environment.

Also, Keypro or the Distributor do not have any other liability for damages and the Distributor does not have any support obligation for the Keypro Solution (if such support obligation is agreed in the Agreement) caused by the causes (a) – (f) described above. Unless otherwise agreed in the Agreement, the agreed support is provided for two (2) latest Releases. 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 the Distributor to remotely perform the warranty repairs and support services for the Keypro Solution, according to the requirements set by the Distributor from time to time.

The warranties (if any) for the Third-Party Programs are governed by their respective terms. In case the terms do not include any warranty terms and if the End User has not purchased support service for the Third-Party Programs, the Third-Party Programs are provided “AS IS”, without warranty or support service of any kind. In warranty and support issues relating to the Third Party Programs the End User shall contact the third-party manufacturer of the Third-Party Programs.

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 Third-Party Programs are owned by their respective licensors as itemized in their respective terms and proprietary notices.

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 copies of the Keypro Solution and the Documentation to the Distributor, or as instructed by the Distributor, destroy the copies of the Keypro Solution the Documentation and confirm the destruction in written signed form.

8. Miscellaneous

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 labor 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 support services for 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.