GENERAL TERMS-AGREEMENT OF THE SOFTWARE AS A SERVICE-AGREEMENT (the "GT Agreement") is attached as a schedule to this certain SaaS Agreement (the "SaaS Agreement", and, together with the GT Agreement, the "Agreements") dated among
- FOEX GmbH , an Austrian limited liability company, with its seat in Perchtoldsdorf, and its business address Aspettenstraße 48, 2380 Perchtoldsdorf, Austria, registered with the Regional Court of Wiener Neustadt (Landesgericht Wiener Neustadt) under FN 380949w ("FOEX"); and
ART. I - DEFINITIONS
§1.1 Capitalized terms used herein have the meaning assigned thereto in Schedule § 1.1 or assigned to them in the SaaS Agreement.
ART. II - SOFTWARE AS A SERVICE
§2.1 License Grant
(a)FOEX hereby grants to Client and Client hereby accepts a non-exclusive, non-perpetual, terminable, and non-transferable right, except as provided for in § 12.3, to permit a number of its developers (“Authorized Users") equal to the Number of Subscriptions purchased by Client in accordance with the SaaS Agreement to access and use the Software in the Territory for its internal use, in accordance with the terms of the Agreements and pursuant to the identified Metrics, during the term of the Agreements, as set forth in more detail in Schedule § 2.1(a). Client's rights under the Agreements will automatically terminate upon expiration of or termination of the Agreements.
(b)Client agrees that its subscriptions hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by FOEX regarding future functionality of features of the Software.
(c) With respect to Authorized Users, Client undertakes that
i. The maximum number of developers of Client that it allows to access and use the Software and the Documentation shall not exceed the Number of Subscriptions; provided that Client shall enable FOEX to audit compliance with this § 2.1(c)i at any time upon FOEX's request;
ii. In case FOEX provided to Client a password for an Authorized User for use of the Software and Documentation, it will keep, and cause each Authorized User to keep, such password secure; and
iii. Authorized Users shall not be permitted to share any designated subscriptions for their use of the Software and Documentation with other Authorized Users, unless subscriptions are being reassigned from an Authorized User to another Authorized User.
§2.2 Additional Purchases
(a) Client may, from time to time during any Payment Period, purchase additional Subscriptions by written notice to FOEX. Upon receipt of such notice, FOEX shall promptly confirm in the then-current Number of Subscriptions by providing a new version of the SaaS Agreement per email and on the Website, that becomes a part of the Agreements.
(b) Client may use the additional Subscriptions to access and use the Software according to § 2.1(a) after the receipt of a confirmation of FOEX.
§2.3 Object Code. The computer programs comprising the Software will be supplied in the form of a software download only. This download contains the necessary installation routines to setup the software on a target system.
ART. III - FEES AND EXPENSES
§3.1 Payment Terms. In exchange for FOEX's provision of the Software as a Service in accordance with Schedule § 2.1(a), Client shall pay the SaaS Fee plus VAT, if applicable, in advance on the first day of the first calendar month following the date hereof, and shall thereafter become due upon completion of each Payment Period.
§3.2 FOEX may change the SaaS Fee from time to time (the "New Fees") and provide Client the latest version on FOEX's Website. FOEX shall notify Client of the New Fees per email. The New Fees become part of the Agreements after the expiration of the then current Term.
§3.3 Unauthorized Use of Software. If any fault or problem is found under investigation to be due to unauthorized use of the Software, Client shall pay FOEX all reasonable costs and expenses incurred by FOEX in consequence of such investigation, calculated on a time and materials basis at FOEX's then prevailing rates.
ART. IV - SOFTWARE SUPPORT AND MAINTENANCE
§4.1 Basic Support. Subject to § 4.2, FOEX shall provide to Client the maintenance and support services in the Forum, as it pertains to the Software. FOEX shall use reasonable efforts to diligently answer any Client questions in the Forum, but Client shall have no right to rely on any advice obtained in this way (the “Basic Support”).
§4.2 Additional Support and Maintenance Services.
(a) Notwithstanding § 4.1, Client shall be entitled to purchase Maintenance Credits according to the terms and conditions set forth on the Website.
(b)Client may use the Maintenance Credits as set forth in Schedule § 4.2(b).
(c)FOEX may change the prices of the Additional Support and Maintenance Services (the "New Prices") from time to time and provide Client the latest version on FOEX's Website. FOEX shall notify Client of the New Prices per email. The New Prices become part of the Agreements after the expiration of the then current Term.
§4.3 Exclusions. The Software Support and Maintenance Service according to this ART. IV shall not include the diagnosis and rectification of any fault resulting from:
(a) Modification of the Software without FOEX's approval;
(b) Accident, neglect, misuse, failure of electrical power, air conditioning, static electricity, humidity control, transportation, or causes other than ordinary use; or
(c) The Software being serviced or maintained by other than FOEX personnel without the prior written consent of FOEX.
ART. V - PROPRIETARY RIGHTS
§5.1 Ownership. Client acknowledges and agrees that the Agreements grants Client no title or right of ownership in or to the Software, or any component thereof, or to any associated materials including, but not limited to any Documentation, or intellectual property. Client shall not, at any time, take or cause any action, which would be inconsistent with or tend to impair the rights of FOEX or any of its licensors. FOEX acknowledges and agrees that the Agreements grants FOEX no title or right of ownership in or to Client's data, documentation or intellectual property.
§5.2 Copyright and Trademark. Client will not acquire any title, copyright or other proprietary rights to or interest in the Software, or any portion thereof. All works of authorship shall be the exclusive property of FOEX and/or Third Parties, as the case may be. FOEX shall have and retain sole ownership of any and all FOEX trademarks, including the goodwill pertaining thereto. Client shall not remove or alter any of FOEX's proprietary or copyright notices, trademarks or logos.
ART. VI - CLIENT'S RESPONSIBILITIES
§6.1 Certain Obligations . Client shall
(a)use the Software as authorized, in accordance with FOEX's operating instructions and the Documentation, with suitable operating supplies;
(b)ensure that the Software is only used in a proper manner by trained developers;
(c)co-operate to a reasonable extent with FOEX's personnel in the diagnosis, investigation and correction of any fault in the Software;
(d)to the best of its ability, make available to FOEX, free of charge, all information, facilities and services reasonably required by FOEX to enable it to perform the Software Support and Maintenance Service;
(e)provide, at no charge to FOEX, adequate access to Client's staff, the Software and other resources as reasonably required to perform remedial maintenance service. Client shall obtain and provide FOEX access to, and use of, any machines, attachments, features or other equipment which, in the opinion of FOEX, are necessary to enable the performance of the services; and
(f)notify FOEX promptly to all Software faults and/or failures via email or other means designated by FOEX.
§6.2 Certain Prohibitions . Client shall not
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties,
i. and except to the extent expressly permitted under the Agreements, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means, other than copying or framing on Client's own intranets or otherwise for its own internal business purposes; or
ii. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all of any part of the Software;
(b) access all or any part of the Software and Documentation in order to build a product or service that competes with the Software and/or Documentation or to copy any features, functions or graphics or the Software;
(c) except as provided for in § 12.3, license, sell, resell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the Software and/or Documentation available to any third party except the Authorized Users;
(d) attempt to obtain, or assist third parties in obtaining, access to the Software or Documentation, other than as provided under ART. II
(e) use the Software to store, transmit or process infringing, libelous, or otherwise unlawful or tortious material, or to store, transmit or process material in violation of third party-rights;
(f) use the Software to store or transmit Virus(es);
(g) interfere with or disrupt the integrity or performance of the Software or third party-data contained therein; or
(h) attempt to gain unauthorized access to the Software or its related systems or networks.
§6.3 Limitation On Reverse Engineering, Decompilation, And Disassembly. Client may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation.
§6.4 Unauthorized Access. Client shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Software or Documentation and notify FOEX promptly of any such unauthorized access or use.
ART. VII - TERM AND TERMINATION
§7.1 Term. the Agreements shall commence upon execution hereof and shall continue for 12 months (the "Initial Term"). Upon expiration of the Initial Term or any Renewal Term (as defined below), the Agreements shall automatically renew for another term of 12 months (a "Renewal Term" and, together with the Initial Term, a "Term"), unless terminated in accordance with § 7.2(a)
(a) Either Party may terminate the Agreements by providing written notice to the other Party of not less than three months prior to the end of the then current Term (such date, the "Due Date"). For avoidance of doubt, termination shall be effective at the expiration of the then current Term.
(b) If Client receives a notification of New Fees or New Prices between the Due Date and the end of the then current Term, Client may, at Client's option, terminate the Agreements after reception of the notification of New Fees or New Prices by providing written notice to FOEX until the last day of the following month.
(c) In addition to such other rights and remedies as may be available in law or in equity, should either Party commit a material breach of its obligations hereunder, the other party may, at its option, terminate the Agreements upon 60 days' written notice of desire to terminate, which notice shall identify and describe the basis for such termination. If, prior to expiration of such period, the defaulting party cures such default, termination shall not take place.
IN EACH CASE OF § 7.2(a) to § 7.2(c), THE DATE SUCH TERMINATION BECOMES EFFECTIVE, THE "TERMINATION DATE".
§7.3 Survival. Any rights and obligations which by their nature extend beyond the term of the Agreements, whether the Agreements is terminated after the Initial Term or any Renewal Term, shall survive and continue after any expiration or termination and shall bind the Parties and their legal representatives, successors, heirs and assigns, where assignment is expressly permitted.
§7.4 Use after Termination. Upon termination of the Agreements for any reason, Client may use the Software as received until the Termination Date.
ART. VIII - CONFIDENTIALITY
§8.1 Trade Secrets of FOEX. The Software and Documentation together with all other data and materials supplied by FOEX to Client in machine-readable form or otherwise pursuant to the Agreements are the property and confidential and proprietary trade secrets of FOEX and/or Third Parties and remain so even after delivery to Client.
§8.2 Confidentiality Obligation. FOEX and Client shall advise all their employees, developers, agents or contractors that they are bound by the confidentiality terms of the Agreements. Further, each Party agrees that during the performance of the Agreements it may receive information relating to the other Party that is not generally known or that is of a proprietary nature (“Confidential Information”). Each Party agrees not to use or disclose any Confidential Information except for the purpose of meeting its obligations under the Agreements, and will not use Confidential Information for any other purpose whatsoever. Confidential Information shall not include any information that is
(a) generally known or available to the public;
(b) already known at the time of receiving the Confidential Information through no wrongful act of the other Party;
(c) furnished by a third party with the right to do so; or
(d) independently developed.
In the event that either Party is required to disclose Confidential Information relating to the other Party to a court or government agency, it shall, prior to disclosure, and as soon as practicable, notify the other Party and allow it an adequate opportunity to object to the disclosure order or take other action to preserve the confidentiality of the information.
§8.3 Damages as Remedy. Client acknowledges that FOEX's offering is unique and valuable and has been developed or otherwise acquired by FOEX at great expense, and that any unauthorized disclosure or use of Software or any component thereof, would cause FOEX irreparable injury and loss, for which damages would be an inadequate remedy.
§8.4 No Encumbrances. Client agrees to keep all property of FOEX, tangible and intangible, free and clear of all claims, liens and encumbrances.
ART. IX - INDEMNITY
§9.1 Each Party agrees to defend, indemnify and hold harmless the other Party from and against any losses, damages, liabilities and expenses resulting from any claims made by any third party which arise from or are in any way related to such indemnifying party's breach of their respective obligations, actions and/or omissions hereunder.
ART. X - LIMITED WARRANTIES
§10.1 Authorization. Each Party represents and warrants that it has the right, power and authority to enter into the Agreements and to perform all of its obligations hereunder.
§10.2 Performance of Services. FOEX represents and warrants that services performed under the Agreements will be performed in a good and workmanlike manner, using generally accepted industry standards, by trained and skilled personnel and will substantially conform to the specifications; provided, however, that FOEX shall not be liable for violation of any applicable law, rule or regulation or any third party claim associated with client content provided to FOEX by Client.
§10.3 No Violations. To the knowledge of FOEX, the Software does not violate any applicable law, rule or regulation or any third party, including any patent, trademark, trade name, copyright, trade secret or other intellectual property right. FOEX shall defend Client in connection with a claim that the use of the Software by Client as permitted under the Agreements constitutes a patent or copyright infringement and shall indemnify and hold Client harmless against any damages finally awarded, after all appeals and excluding any damages not attributable to FOEX, in connection with any such claim, but only to the extent that.
(a) the action relates to a patent or copyright enforceable in the Territory;
(b) the action relates solely to the Software; and
(c) the Software has not been altered or modified by or on behalf of Client.
§10.4 Enjoinder. In the event that Client's use of the Software is enjoined, FOEX shall, at its expense do one of the following:
(a) procure for Client the right to continue using the Software;
(b) substitute suitable Software; or
(c) modify the Software so that it becomes non-infringing.
If any of the foregoing options are not commercially practicable, FOEX may elect to provide a pro-rata refund to Client of any pre-paid SaaS Fees. FOEX shall have no liability or obligation to defend or indemnify Client with respect to any infringement of a third party intellectual property right, or claim thereof, based upon the combination, operation or use of any item of equipment or software supplied hereunder with equipment or software not supplied by FOEX, or in a manner for which Client was not authorized, or for any claim based upon alteration or modification, without FOEX's written approval, of any Software supplied pursuant to the Agreements.
§10.5 THE WARRANTIES MADE IN THE AGREEMENTS ARE THE ONLY WARRANTIES MADE BY FOEX WITH RESPECT TO PRODUCTS AND SERVICES PROVIDED HEREUNDER. CLIENT AGREES THAT THE EXPRESS OBLIGATIONS AND WARRANTIES MADE BY FOEX IN THE AGREEMENTS ARE IN LIEU OF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, TO THE EXCLUSION OF ANY OTHER WARRANTY, CONDITION, TERM, UNDERTAKING OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, RELATING TO ANYTHING SUPPLIED OR SERVICES PROVIDED UNDER OR IN CONNECTION WITH THE AGREEMENTS INCLUDING, WITHOUT LIMITATION, AS TO THE CONDITION, QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR THE PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FOEX DOES NOT WARRANT THE FUNCTIONING OF ANYTHING SUPPLIED OR SERVICES PERFORMED HEREUNDER WITH SOFTWARE NOT SUPPLIED BY FOEX, OR THAT THE OPERATION OF ANYTHING SUPPLIED OR SERVICES PERFORMED HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE.
§10.6 CLIENT AGREES THAT IF CLIENT HAS RECEIVED ANY WARRANTIES WITH REGARD TO ANYTHING SUPPLIED OR SERVICES PERFORMED HEREUNDER, THEN THOSE WARRANTIES ARE PROVIDED SOLELY BY FOEX AND DO NOT ORIGINATE FROM, AND ARE NOT BINDING ON, ANY THIRD PARTIES, EXCEPT AS OTHERWISE SPECIFIED IN ANY END-USER LICENSE AGREEMENT PROVIDED BY A THIRD PARTY. FURTHERMORE, ANY SUPPORT TO BE PROVIDED PURSUANT TO THE AGREEMENTS SHALL BE PROVIDED EXCLUSIVELY BY FOEX, UNLESS OTHERWISE SPECIFICALLY AGREED TO BY FOEX IN WRITING.
ART. XI - LIMITATION OF LIABILITY
§11.1 EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER IN RESPECT OF ALL CLAIMS, WHETHER IN CONTRACT, DELICT OR TORT, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CLIENT WITHIN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT THAT IS THE SUBJECT OF THE CLAIM. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO THE FOLLOWING:
(a) THE PARTY'S OBLIGATIONS RELATING TO INDEMNIFICATION, CONFIDENTIALITY AND INTELLECTUAL PROPERTY;
(b) CLIENT'S PAYMENT OBLIGATIONS;
(c)DAMAGES ARISING FROM A PARTY'S GROSS NEGLIGENCE OR WILFUL MISCONDUCT; AND
(d) DAMAGES ARISING FROM PERSONAL INJURY OR DEATH.
§11.2 NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS, DAMAGE, COST OR EXPENSES OF ANY KIND WHATEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, DELICT, INCLUDING NEGLIGENCE, OR OTHERWISE, LOSS OF PRODUCTION, LOSS OF OR CORRUPTION OF DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME, LOSS OF GOODWILL, LOSS OF ANTICIPATED PROFITS OR ANTICIPATED SAVINGS, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THEIR POSSIBILITY. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. FOR THE PURPOSES OF THIS ARTICLE, LOSS INCLUDES A PARTIAL LOSS OR REDUCTION IN VALUE AS WELL AS A COMPLETE OR TOTAL LOSS.
§11.3 NOTWITHSTANDING ANY OTHER PROVISIONS OF THE AGREEMENTS, FOEX'S LIABILITY FOR DEATH, PERSONAL INJURY OR PHYSICAL DAMAGE TO PROPERTY CAUSED BY ITS NEGLIGENCE OR THAT OF ITS SERVANTS OR AGENTS SHALL BE LIMITED TO EUR 100,000 IN RESPECT OF EACH SUCH EVENT.
§11.4 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO THIRD PARTY WHOSE PRODUCTS OR SERVICES ARE PROVIDED HEREUNDER BY FOEX SHALL HAVE ANY LIABILITY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OF ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.