Last Updated: May 23, 2018
This Dezide SOFTWARE LICENSE AND SERVICES AGREEMENT (the “Agreement”) is between you and Dezide ApS Registered in Denmark (Company Number DK26373476), with its principal place of business at Gasværksvej 5, DK-9000 Aalborg, Denmark (“Dezide”), to permit Customer to use Dezide Products and receive services. When executed by both parties, one or more Quotes, Order Forms, Quotations, Purchase Orders, or Proposals (“Quote”) shall evidence the Product licenses granted and the services to be provided. If you are agreeing to this agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this agreement. Dezide may modify this Agreement from time to time, subject to the terms in the Section 8 (Changes to this Agreement) below.
Table of Contents
1.1 “Commencement Date” shall mean the date on which the Products are shipped by Dezide to Customer, or if no delivery is necessary, such as the purchase of licenses for additional Users, servers or transactions, the Commencement Date shall be the effective date on the applicable Quote.
1.2 “Customer Support” shall mean Product support provided under Dezide’s policies in effect on the date such support is ordered or renewed – see Exhibit B.
1.3 “Documentation” shall mean the printed or online written reference material furnished to Customer in conjunction with the Product, including, without limitation, instructions, run rules, guidelines and end user guides.
1.4 “SaaS Services” shall mean access, maintenance and related services to the Products on the Dezide System hosted by Dezide and charged using SaaS / rental-based fees. See Exhibit C.
1.5 “Limited Production Products” shall be Products not specified on the Price List or that are specified by Dezide as Limited Production or “Alpha” or “Beta.”
1.6 “Malicious Code” shall mean viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs.
1.7 “Quote” shall mean Dezide’s then-current standard form or Customer’s approved system generated or other electronic document for ordering Product licenses and services attached or added to this Agreement from time to time. Each Quote shall be consecutively numbered and shall reference the Dezide Agreement number above and the Effective Date.
1.8 “Price List” shall mean Dezide’s standard commercial fee schedule in effect when and where a Product license or service is ordered and utilized by Customer.
1.9 “Product(s)” shall mean collectively, the (i) computer software in object code form, owned or distributed by Dezide to which Customer is granted a license pursuant to this Agreement; (ii) media on which such software is provided, if any; (iii) user guides and manuals for use of the software (“Documentation”), (iv) and updates thereto (generally available Product maintenance releases, such as error fixes and/or enhancements, provided by Dezide in connection with Customer Support, not including any new products, features, or enhancements in which Dezide generally charges a separate fee), all as licensed and paid, for the relevant time period.
1.10 “Session” Session shall mean the interaction of a user or external system or equipment with the Dezide software. The Session begins when the User, system or equipment first interacts with the Dezide software. A Session may either be authenticated or unauthenticated.
1.11 “Statement of Work (“SOW”)” shall mean a mutually agreed statement of professional services to be furnished by Dezide to Customer. See Exhibit A.
1.12 “Supported Product License” shall mean a Product licensed by Customer for which Customer has ordered and paid Customer Support for the relevant time period.
1.13 “System” shall mean Customer’s or Dezide’s computer hardware and operating system, if designated on the relevant Quote.
1.14 “User” shall mean an individual authorized by Customer to use the Product.
1.15 “Work Product” means all product, data, reports, designs, plans, source code, object code, program modules, documentation and other information developed, created, or furnished by Dezide to Customer in the course of providing support, implementation, consulting, training or other professional services.
1.16 “Hosted Services” means access, maintenance and related services to the Products on the Dezide System hosted by Dezide and with hosting services charged separately, see Exhibit C.
Customer may not assign this Agreement or transfer any Product license to a third party without the prior written consent of Dezide, and any such attempt shall be void. Notwithstanding the foregoing, if this Agreement covers licenses that are limited in usage by seats, sessions, territory, or other means that require the payment of additional fees to Dezide for expanded usage, then Customer may assign this Agreement in its entirety (including all Quotes), without consent of Dezide, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a Dezide direct competitor, upon notice to Dezide. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties, their successors, and permitted assigns.
On Dezide’s written request, not more than once annually, Customer shall furnish Dezide with a signed certification (a) verifying the Products licensed are being used pursuant to the terms of this Agreement and applicable Quote; and (b) listing the locations, number of Users, and types of the Customer’s Systems on which the Products are run.
Dezide has the right to verify that Customer uses the Products licensed pursuant to the terms of this Agreement and applicable Quote. To verify this, Dezide shall either have remote access to the server installation of the Dezide Products, or the Customer should make available an SMTP server for use by the Dezide server system to automatically send out license usage information to Dezide in e-mails. If Customer prevents Dezide from carrying out License Control, this is viewed as a breach of contract.
In addition, Dezide may, at its expense and upon reasonable notice, inspect any Customer facility where Products are used and audit Customer records, to confirm Customer’s compliance with this Agreement. Any such audit shall be conducted during regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business. If an audit reveals Customer has underpaid fees to Dezide, Customer shall be invoiced for such underpaid fees based on the Price List in effect at the time the audit is completed; if the underpaid fees exceed 5% of the license fees paid, then Customer shall also pay Dezide’s reasonable costs of conducting the audit.
If Customer has purchased and paid for SaaS Services for the Products as indicated in the Quote, Dezide will provide SaaS Services for such Products subject to Dezide’s SaaS Services Attachment, Exhibit C, as applicable, and in accordance with the specifications in the Documentation.
Customer Support services ordered by Customer will be subject to Dezide’s Customer Support policies (Exhibit B) and fees in effect on the date Customer Support is ordered or renewed. Customer Support policies may be changed at Dezide’s discretion; however, policy changes will not result in a material reduction in the level of services for supported Products during the period for which fees for Customer Support have been paid. Reinstatement of lapsed Customer Support is subject to Customer’s payment of Dezide’s Customer Support reinstatement fees in effect on the date Customer Support is re-ordered. Customer may obtain Customer Support for pre-production releases of Products and Limited Production Products on a time and materials basis. Dezide may select qualified subcontractors to perform Customer Support, or assign performance of Customer Support to any of Dezide subsidiaries or affiliates.
Dezide will provide deployment, consulting and training services agreed to by the parties under the terms attached to this Agreement as Exhibit A and specified in a SOW (using a Dezide Quote template), signed by both parties, and incorporated herein by this reference. All consulting services shall be billed on a time and materials basis unless the parties expressly agree otherwise in the SOW. Any consulting or training services acquired from Dezide shall be ordered separately from the Product licenses and Customer may acquire either Product licenses or consulting services without acquiring the other. Should Dezide agree to provide consulting services, the payment of the Product license and Customer Support fees under this Agreement shall not be contingent under any circumstances upon the performance of any such consulting services including installation and implementation services.
If not otherwise specified on the Quote, each Product license granted shall remain in effect perpetually, unless terminated as provided in Section 4.2 or 4.3 or otherwise as provided herein.
Customer may terminate its license to any Product at any time. Customer may terminate Customer Support and any consulting or training services at any time with thirty (30) days prior notice to Dezide. In no event shall any termination under this Section relieve Customer of the obligations specified in Section 4.4.
Dezide may terminate this Agreement or any Product license upon written notice if Customer breaches this Agreement and fails to correct the breach within 30 days following written notice specifying the breach.
Termination of this Agreement or any license shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement (or any Agreement Amendment, Quote, SOW or other related agreement). Termination of Support Services still obligates Customer to pay the fees for such Support Services until the expiration of the term contracted. Termination of consulting or training services still obligates Customer to pay fees for services already rendered prior to the effective termination date. In the event of Customer’s insolvency or bankruptcy, Customer will notify Dezide in accordance with Section 7.5, and cooperate to protect Dezide’s interests in the Products, including executing any documents reasonably required to protect Dezide’s interests. Within 15 days of any termination of this Agreement, Customer shall pay to Dezide all unpaid fees accrued prior to termination. The parties’ rights and obligations under Sections 2.1.C, 2.1.D, 2.1.E, 2.2, 2.3 (audit provisions until two years after effective termination date) and Articles IV, V, VI (until fully paid) and VII shall survive termination of this Agreement.
If a license granted under this Agreement terminates for any reason, Customer shall (a) cease using the applicable Products, and (b) certify to Dezide within 30 days after expiration or termination that Customer has destroyed or returned to Dezide the Products and all copies. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials.
Dezide, at its own expense, shall (i) defend, or at its option, settle any suit brought against the Customer by a third party on the basis of infringement of any valid intellectual property rights by the Products or Work Product (excluding any suit deriving from any Customer provided item); and (ii) pay any final judgment entered against the Customer on such issue or any settlement thereof, provided that: (i) Customer notifies Dezide promptly of each suit; (ii) Dezide is given sole control of the defense and/or settlement; and the (iii) Customer fully co-operates and provides all reasonable assistance to Dezide in the defense or settlement.
If all or any part of the Products or Work Product becomes, or in the opinion of Dezide may become, the subject of a suit of infringement, Dezide at its own expense and sole discretion may: (i) procure for the Customer the right to continue to use the Products or Work Product or the affected part thereof; or (ii) replace the Products or Work Product or affected part with other suitable non-infringing service(s); or (iii) modify the Products or Work Product or affected part to make the same non-infringing; or if none of these options is commercially practical, Dezide may terminate the Agreement.
Dezide shall have no obligations under this clause 5.1 to the extent that a claim is based on: (i) the combination, operation or use of the Products or Work Product with other services or software not provided by Dezide, if such infringement would have been avoided in the absence of such combination, operation or use; or (ii) use of the Products or Work Product in any manner inconsistent with this Agreement; or (iii) the negligence or willful misconduct of the Customer.
Customer shall indemnify and hold Dezide and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from (i) any claimed infringement or violation by Customer of any Intellectual Property Rights with respect to Customer’s use of the Products or Work Product outside the scope of this Agreement; (ii) any access to or use of the Products or Work Product by a third party, and (iii) use by Dezide of any Customer provided item.
Subject to the clause above each party (‘the first party’) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (‘the second party’) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the second party by any person arising out of or as a consequence of an unlawful or negligent act or omission of the first party, its officers, servants or agents in any way connected with this Agreement whether arising from any failure by the first party to comply with the terms of this Agreement or otherwise.
The indemnity contained in the clause above extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such suit.
This Section 5.1 states each party’s entire liability and the other party’s exclusive remedy for infringement or any intellectual property warranty.
Dezide does not warrant Limited Production Products. Limited Production Products and pre-production releases of Products are distributed “AS IS.”
If applicable, Dezide shall take all commercially reasonable and industry-standard efforts to protect the confidentiality of data obtained in connection with SaaS Services, however Dezide cannot and does not guarantee the privacy, security, authenticity and non-corruption of any information transmitted through, or stored in any system connected to the Internet; and Dezide hereby advises Customer not to submit sensitive or confidential data when using SaaS Services. Dezide shall not be responsible for any delays, errors, failures to perform, or disruptions in the use of the Products under the Hosted Services or otherwise caused by or resulting from any act, omission or condition beyond Dezide’s reasonable control. The foregoing shall not reduce Customer’s Product warranty under Section 5.2A above.
For any breach of the warranties contained in Section 5.2 above during the Warranty Period or Services Warranty Period, Customer’s exclusive remedy, and Dezide’s entire liability, shall be:
Invoices shall be payable within 30 days of the invoice date. All payments under this Agreement shall be in DKK (Danish Kroner), EUR (euro) or USD (US dollar) based on what is stated in the invoice.
License fees are invoiced upon contract signature. Consultancy fees are invoiced monthly based on number of days/hours. Travel expenses are invoiced on a monthly basis. SaaS fees are invoiced on a monthly, quarterly or annual basis. Rules regarding consultancy fees, travel expenses and payment schedule are defined in Dezide’s current Price List.
Support fees shall be payable annually in advance, net 30 days from the renewal date. Renewal notices shall be sent to Customers. All other applicable fees shall be payable 30 days from the invoice date.
The receipt or request for payment of invoiced amounts shall not prejudice any of Dezide’s rights with respect to Customer’s failure to pay on the due date. Any amounts payable by Customer which remain unpaid 31 days after the due date shall be subject to late penalty fees equal to 1.5 % per month from the due date until such amount is paid. Customer shall pay all such interest and reasonable costs of collection, including but not limited to, reasonable attorney’s fees and court costs. Products shall be delivered to Customer F.O.B. Dezide’s point of shipment. Customer agrees to pay applicable media and shipping charges. Customer shall issue a purchase order, or alternative document acceptable to Dezide, on or before the Commencement Date of the applicable Quote.
If Customer places contingencies or Agreement modifications when issuing a purchase order (whether Dezide’s or Customer’s form), then only contingencies agreed upon in written advance by Dezide shall be enforceable, and only if such contingencies are referenced in the purchase order.
Dezide fees are exclusive of, and Customer is responsible for, duties and taxes (other than Dezide taxes on income). Customer shall defend, indemnify and hold Dezide harmless from any and all claims and tax liability associated with any requirement to collect or pay any such taxes based on the licenses or services granted, including reasonable out-of- pocket expenses in defending such claim.
By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information shall be limited to the Products, the terms and pricing under this Agreement, the Hosted Data, if applicable, and all information clearly identified (whether orally or in writing) as confidential.
A party’s Confidential Information shall not include information that: (a) is or becomes part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party.
The parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and for a period of two years after termination of this Agreement. Thereafter, the parties’ obligations survive and continue with respect to any Confidential Information that is a trade secret under applicable law. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
Customer agrees that the Products as well as results of any Product benchmark or similar testing measure to any third party are Confidential Information of Dezide.
Dezide may list Customer as a customer and use Customer’s logo on Dezide’s website, on publicly available customer lists, and in media releases.
Customer acknowledges that Dezide may desire to use its name in press releases, product brochures and financial reports indicating that Customer is a customer of Dezide, and Customer agrees that Dezide may use its name in such a manner.
Dezide would like to use the Customers name and other details about the Dezide project as part of Dezides ongoing marketing activities and Customer agrees to evaluate each activity on a case by case basis and determine if the activity is okay to publish. Nothing will be published without the prior approval of the Customer.
This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of Denmark, without regard to the conflicts of law principles or to the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transaction Act or any state modified adoption thereof and shall be deemed to be executed in Aalborg, Denmark.
All notices required to be sent hereunder shall be in writing and deemed given when addressed to the Customer or Dezide’s contract details listed in the relevant Quote upon (a) personal delivery, (b) the second business day after mailing when mailed by registered or certified, return-receipt, first class mail or traceable overnight mail by reputable private carrier, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by confirmed email if by scanned attached document with authorized physical signatures (provided that facsimile and email shall not be sufficient for termination or indemnification claim notices). The parties agree that facsimile and email transmissions are treated as original documents, and have the full effect of any original version.
This clause 7.6 sets out the entire financial liability of Dezide (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer in respect of:
Except as expressly and specifically provided in this agreement:
Nothing in this agreement excludes the liability of Dezide:
Dezide shall not be liable whether in tort including for negligence or breach of statutory duty, contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and Dezide’s total aggregate liability in contract, tort including negligence or breach of statutory duty, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total fees paid during the 12 months immediately preceding the date on which the claim arose.
Nothing in this Agreement excludes the liability of the parties for breach of their obligations under the indemnity and confidentiality clauses of this Agreement and infringement of Dezide’s intellectual property.
In no event shall Customer raise any claim under this Agreement more than one year after: (i) discovery of the circumstances giving rise to such claim; or (ii) effective date of the termination of this Agreement whichever is later.
Dezide shall not be liable for Your Content, material or other third party material, including links to third-party websites and activities provided by users. Such content and activities are neither attributable to Dezide nor do they represent Dezide’s opinion.
In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
Customer agrees to comply with all relevant international and Danish export laws and regulations (including “deemed export” and “deemed re-export” regulations) (“Export Laws”) to assure the Products (including technical data), any services deliverables provided under this Agreement, and any direct product thereof are not (1) exported, directly or indirectly, in violation of Export Laws; or (2) intended to be used for any purposes prohibited by Export Laws, including, without limitation, nuclear, chemical, development of missile technology, or biological weapons proliferation.
Dezide is an independent contractor; nothing in the Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
Except with respect to obligation to pay fees when due hereunder, neither party shall be deemed in default of this Agreement to the extent that any delay or failure in performance of its obligation results, without its fault or negligence, from any cause beyond its reasonable control, provided said party gives reasonably prompt notice of the force majeure condition and uses reasonable efforts to rectify said condition.
This Agreement, including all Quotes and Dezide Statements of Work, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement.
In the event of any conflicting or inconsistent terms as between any Quote and this Agreement, the terms and conditions of the Quote shall control. Terms and conditions in Customer’s purchase order are null and void.
IN WITNESS WHEREOF, authorized representatives of parties have executed this Agreement. This Agreement may be executed simultaneously in two or more counterparts or by facsimile, each one of which shall be deemed an original, and all of which shall constitute one and the same instrument.
We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
TERMS AND CONDITIONS FOR CONSULTING AND TRAINING SERVICES
TERMS AND CONDITIONS FOR SOFTWARE MAINTENANCE AND SUPPORT SERVICES
Upon payment of the annual maintenance and support service fee, Dezide ApS (“Dezide”) will provide the following maintenance and support services (collectively the “Support Services”) as outlined herein in connection with the licensed Product specified above (the “Software”). Your receipt and use of any Updates (as defined below) to the Software is subject to the terms and conditions of this Agreement.
Assistance from Dezide in connection with the installation of updates is charged at standard consultancy rates.
Support coverage applies only to the unaltered software and applications. Dezide is not responsible for providing support for any modifications or enhancements made to the Software or applications by the end user or a third party. Support benefits only apply to the most current version of the software and one prior release.
Support coverage is defined as:
For all support requests that Dezide cannot accept as belonging to type (A) to (E) an offer will be sent to the Customer based on standard consultancy rates.
Dezide’s maintenance and support fee is composed of two elements, (1) maintenance: 75%, and (2) support: 25%.
As part of hotline support, Dezide will respond to queries from Customer relating to problems and errors.
Hotline Support is pre-paid as part of the annual maintenance fee but will be limited to a number of hours, N, that is calculated as follows:
N = SupportFee / (DezideHourlyFee x 1.25)
where “SupportFee” is the annual support fee and “DezideHourlyFee” is Dezide’s standard hourly consultancy fee as defined in Dezide’s current Price List.
If all of the included hours are spent within a single year, additional needed hours are invoiced according to the standard hourly consultancy fee on a monthly basis.
Customer is responsible for the payment of applicable sales and/or use taxes. The Maintenance and Support Fees are modified on an annual basis. Dezide has the right to adjust the Fees with 4% per year in addition to the increase in the Danish Consumer Index without this giving the Customer the right to terminate Maintenance and Support.
SAAS AND HOSTED SERVICES
SaaS Services are paid on a monthly, quarterly or annual basis. Fees for SaaS Services are based on the current Price List.
For SaaS Services, Software Maintenance and Support Services are included in the SaaS Services Fees.
Payment for Hosted Services covers Dezide’s expenses for hosting the Software. Hosted Services are paid on a quarterly or annual basis. Fees for Hosted Services are based on the current Price List.
For Hosted Services, Software Maintenance and Support Services are not included in the Hosted Services Fees.
Dezide will, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
An Initial Subscription Term shall be defined in the accompanying Quote. The subscription term is automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
Additional Service Level Agreements (SLA’s) can be defined between Customer and Dezide but may require extra charges to be paid.
Dezide shall follow its standard archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Dezide to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Dezide. Dezide shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Dezide to perform services related to Customer Data maintenance and back-up).
If Dezide processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and Dezide shall be a data processor and in any such case: