KANZI ONE SOFTWARE LICENSE TERMS¶
NOTICE TO THE USER: PLEASE READ THESE KANZI ONE SOFTWARE LICENSE TERMS CAREFULLY. BY DOWNLOADING, INSTALLING, STARTING OR OTHERWISE USING THE SOFTWARE YOU ACCEPT THESE TERMS AND THEREBY CONCLUDE THIS AGREEMENT. SHOULD YOU NOT ACCEPT THE TERMS, THEN DO NOT DOWNLOAD, INSTALL, START OR OTHERWISE USE THE SOFTWARE. INSTEAD, UNINSTALL THE SOFTWARE FROM YOUR COMPUTER AND DELETE THE DOWNLOADED INSTALLATIONS PACKAGE(S).
THESE KANZI ONE SOFTWARE LICENSE TERMS ("Terms") apply for the licensing of the Software, developed by Rightware Oy ("Rightware"), a corporation organized and existing under the laws of Finland, having its registered office in Porkkalankatu 3, 00180 Helsinki, Finland. The Software is licensed under the commercial denomination "KANZI ONE" and consists of a package of software features.
1 DEFINITIONS¶
For the purposes of these KANZI ONE SOFTWARE LICENSE TERMS, the terms used in this Agreement shall have the following meaning:
1.1 "Agreement" shall mean the license agreement, whether in written or electronic form, entered into between Rightware and the Licensee and having these Terms attached thereto or otherwise accepted (e.g. electronically upon downloading and installing the Software) by the Licensee. Any related prior or contemporaneous additional or conflicting wording or documentation specified in any correspondence, purchase order or other document issued by Licensee are deemed proposals only and are hereby rejected and superseded by the Agreement.
1.2 "Cluster Functionality" shall mean an automotive human-machine-interface feature that is used to display key driving parameters, such as speed and engine revolution per minute, visually to the driver of a vehicle.
1.3 "Confidential Information" shall mean and refer to any and all confidential or proprietary information, documents, software codes and other related materials which are, whether verbally, printed or in machine-readable form or otherwise, regardless of possible medium, (i) disclosed, delivered or otherwise made available to the receiving Party by the disclosing Party during the Term of the Agreement, and (ii) designated by the disclosing Party as "confidential" or "proprietary", clearly mentioned as "confidential", "secret" or "proprietary" or otherwise in discussions or otherwise given the circumstances and nature of the disclosure would be considered confidential by a reasonable person. "Confidential Information" shall also include the Agreement and contents of these Terms.
1.4 "Country Floating Development License" shall mean the type of license more specifically described in Section 2.1.2 (b).
1.5 "Documentation" shall mean any documentation, specifications, instructions and any other materials related to Software as provided to the Licensee by Rightware.
1.6 "Effective Date" shall mean the date when the Licensee has accepted a respective commercial offer of Rightware for a KANZI ONE Software License, or the date when the Licensee has downloaded the Software and thereby or therewith accepted these Terms.
1.7 "Embedded Applications" shall mean any and all software applications developed using the Software or parts thereof or contain Software or parts thereof and are embedded into embedded hardware and software systems for the purpose of creating different human-machine-interface functionalities, including but not limited to Functionalities, such as Cluster Functionality, IVI Functionality, HUD Functionality or Passenger View Functionalities.
1.8 "End Product" shall mean Licensee's product or product component that is a combination of hardware and Embedded Applications and manufactured in commercial volumes to be integrated into vehicles or other consumer products.
1.9 "Floating Development License" shall mean the type of license more specifically described in Section 2.1.2.
1.10 "Functionality or Functionalities" shall mean Cluster Functionality, and/or IVI Functionality, and/or HUD Functionality, and/or Passenger View Functionality.
1.11 "Global Floating Development License" shall mean the type of license more specifically described in Section 2.1.2.(a).
1.12 "HUD Functionality" shall mean an automotive human-machine-interface feature where key driving parameters are projected and/or rendered to a transparent display in direct field-of-view of the driver.
1.13 "Intellectual Property Rights" shall mean, on a worldwide basis, all existing tangible or intangible rights of Rightware in respect of the Software on the Effective Date and/or all tangible or intangible rights created or acquired by Rightware after the Effective Date, including in particular (i) rights associated with works of authorship including, without limitation, copyrights (including, but not limited to, ownership rights in all titles and software codes, concepts and any related documentation) as well as -copyright registrations, applications, renewals and extensions thereof, data base rights, and mask-works - whenever possible -, (ii) rights associated with trademarks, service marks, trade names and similar rights, including, without limitation, design rights, and rights in trade dress and packaging, (iii) trade secret rights, (iv) patents, designs, algorithms and patent registrations, applications, renewals and extensions thereof, (v) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise recognized by any applicable laws, treaties and conventions, (vi) all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter existing, made, or in force (including any rights in any of the foregoing), and (vii) any and all causes of action arising from or related to any of the foregoing.
1.14 "IVI Functionality" shall mean an automotive human-machine-interface feature that is used to display and control infotainment elements of the vehicle such as music, navigation and/or general settings of a Vehicle including but not limited to heating, ventilation and air condition control.
1.15 "Kanzi Engine" shall mean a proprietary software user interface and graphics engine developed and distributed by Rightware.
1.16 "Kanzi Feature Packs" shall mean any additional software features, functionalities and packages which Rightware may add from time to time to the Software at its sole discretion. Examples of Kanzi Feature Packs which may be included in the Software are Kanzi Autostereoscopy, Kanzi Connect, Kanzi Maps, Kanzi Particles and Kanzi VR. Further details of Kanzi Feature Packs are provided in the Documentation.
1.17 "Kanzi Framework" shall mean Kanzi Studio and Kanzi Engine.
1.18 "Kanzi Learning License" shall mean a license for Kanzi One granted for learning and competence development purposes as provided in Section 2.2.
1.19 "Kanzi Mozi License" shall mean a license for Kanzi One with technical limitations granted for personal and non-commercial learning and competence development purposes as provided in Section 2.3.
1.20 "Kanzi Platform Support" shall mean dynamically or statically linked software libraries that enable Licensee to run and execute Kanzi Engine or other Software components on a Platform.
1.21 "Kanzi Platform Support License" shall mean the license as specified in Section 2.5.
1.22 "Kanzi Platform Support License Fee" is specified in Section 3.3 below.
1.23 "Kanzi SDK" consists of specific application programming interfaces, interface definitions, generated code libraries and associated tools, which allow the Licensee to create software plug-ins or applications that depend on and work along with the Software.
1.24 "Kanzi Studio" shall mean proprietary content development software tool for Kanzi Engine.
1.25 "License Fee" shall mean a Software Development License Fee as specified in Sections 3.1 and 3.2. Only for the use of the Kanzi Platform Support License, a Perpetual License Fee may be agreed upon by the Parties in accordance with Sections 3.3 herein.
1.26 "Licensee" shall mean either an individual or, if licensed or otherwise acquired by or for an entity, an entity acquiring the license right for the Software and entering into the Agreement with Rightware.
1.27 "LTS Minor Version" shall mean a Minor Version determined by Rightware in its roadmap to receive for an extended period, defined by Rightware, support and maintenance services, and that is intended for production use.
1.28 "Maintenance Agreement" shall mean a separate support and maintenance agreement regarding the Maintenance Service offered by Rightware to the Licensee or, if no separate agreement has been entered into, the Support and Maintenance Agreement attached to these Terms as Appendix A.
1.29 "Maintenance Fee" shall mean the fees specified to be payable for the Maintenance Services.
1.30 "Maintenance Service" shall mean all support and maintenance services provided under the Support and Maintenance Agreement, Appendix A.
1.31 "Maintenance Update(s)" shall mean error corrections and bug fixes that Rightware may provide for Minor Versions from time to time. Maintenance Update(s) may contain some new features at Rightware's discretion. Maintenance Updates are indicated by a change to the second digit right of the first decimal point (e.g. v3.1.1 to v 3.1.2).
1.32 "Major Version" shall mean a new major version of the Software denoted by a change to the left of the first decimal point (e.g. v3.0 to v4.0).
1.33 "Minor Version" shall mean a minor version of the Software denoted by a change to the first digit right of the first decimal point (e.g. v3.1 to v3.2).
1.34 "Node Locked Development License" shall mean a Software Development License as specified in Section 2.1 (a).
1.35 "Party" or "Parties" shall refer to either the Licensee or Rightware if used in singular form and to both the Licensee and Rightware if used in plural form.
1.36 "Passenger View Functionality" shall mean an automotive human-machine-interface feature that is used to provide infotainment functions exclusively to one or more passengers of the Vehicle.
1.37 "Perpetual License" shall mean a License Fee model, whereby the Licensee shall be granted a Kanzi Platform Support License - subject to the payment of a Perpetual License Fee - for as long as the Agreement is valid and not terminated by Rightware because of a serious breach of the Agreement by Licensee.
1.38 "Perpetual License Fee" shall mean a one-time fee that is defined in Section 3.3 below.
1.39 "Platform" shall mean Licensee's embedded development environment that will have following defining parameters:
A specific System-on-chip (SOC) (such as NXP i.MX8 or Renesas R-Car-E3e),
A specific operating system (such as QNX 7.0 or Android 11),
A specific toolchain (such as Yocto Gnu C++ or QNX SDP),
A specific windowing system (such as QNX Screen or WSEGL).
1.40 "Platform Change" shall mean any change of any of the four parameters defining the Platform.
1.41 "Plug-In" shall mean any plug-ins, extensions, applications or other add-in components developed, made or realized by Licensee that rely on and/or use the Kanzi SDK according to these Terms.
1.42 "Price List" shall mean the prices, listed in a respective commercial offer made by Rightware as accepted by the Licensee, or otherwise agreed between the Parties.
1.43 "Production License" shall mean the type of license more specifically described in Section 2.3.
1.44 "Production License Fee" shall mean the Production License Fee as specified in Sections 3.4.
1.45 "Production Period" shall mean the period specified in Section 3.5 below.
1.46 "Sales" shall mean the sales or other transfer of Embedded Applications.
1.47 "Software" shall mean any or all of the following software programs and documentation licensed hereunder under the commercial denomination "KANZI ONE" on the Effective Date and containing the following features and components:
Kanzi Framework (consisting of Kanzi Studio and Kanzi Engine)
Kanzi SDK
Kanzi Documentation and Third Party Software, and
Kanzi Feature Packs (to the extent that they are made part of KANZI ONE at the sole discretion of Rightware).
1.48 "Software Development License" shall mean the type of license more specifically described in Section 2.1.
1.49 "Software Development License Fee" shall mean the fee more specifically described in Section 3.1.
1.50 "Subscription License" shall mean a subscription-based license model on the Software, wherein the Licensee shall be granted a license during the Subscription License Term and such license is subject to the payment of a Subscription License Fee.
1.51 "Subscription License Fee" is defined in Section 3.2 below.
1.52 "Subscription License Term" shall mean the term of the Subscription License set forth in the Agreement.
1.53 "Term of the Agreement" shall mean the duration of the Agreement as set out in a respective commercial offer of Rightware for a KANZI ONE Software License and accepted by the Licensee or agreed between the Parties.
1.54 "Third Party Software" shall mean third party software included in the Software and delivered to the Licensee and listed in the Documentation. Third Party Software that is included in the Software will be governed by and be subject to their respective licensing and other terms and conditions that will apply instead of the provisions of these Terms.
1.55 "Trial Use" shall mean the trial, demo and testing use specified in Section 2.6 herein.
1.56 "Trial Use License" shall mean a license as specified in Section 2.6.
1.57 "Vehicle" shall mean any vehicle containing one or more Functionalities with Embedded Applications.
2 GRANT OF LICENSE¶
Rightware will license the Software to be used commercially for the development of Embedded Applications as stated in these Terms.
2.1 Software Development License. Rightware grants to the Licensee, subject to the terms and conditions of these Terms and subject to payment of the Software Development License Fee set forth in Section 3.1, a limited, non-exclusive, non-sublicensable, worldwide, non-transferable, revocable right and license with respect to the Software and all Intellectual Property Rights, during the Term of the Agreement, depending on the agreed license type, to either:
(a) install the Kanzi Framework on the basis of a Node Locked Development License to one (1) computer and use it on the computer where it is installed. Kanzi Framework is only compatible with the supported computer environments, described in the Documentation. Other components of the Software including Kanzi SDK, Documentation and Kanzi Feature Packs may be installed and copied to other computers and used as described in the Documentation, if and to the extent permitted by the build-in technical license control mechanisms of the Software. Certain Kanzi Feature Packs will only work on one computer with one purchased license as described in the Documentation; or
(b) in case of a Floating Development License pursuant to Section 2.1.2 to have several installations of Software on multiple computers of Licensee's network.
2.1.1 Transfer of Node Locked Development License. Rightware may allow a limited number of Node Locked Development License transfers from one computer to another e.g. in cases of computer upgrades or breakdowns.
2.1.2 Floating Development License. When selecting a Floating Development License, Licensee is required to install a floating license server on the Licensee's network or alternatively use Rightware provided floating license server. The floating license server is a server which allows one or more (depending on the number of Floating Development Licenses bought) Software installations to function at the same time. The floating license server needs to be installed by the Licensee on a physical server and operated within the Licensee's internal network.
There are two types of a Floating Development License:
(a) Global Floating Development License. The Global Floating Development License is a multi-site Floating Development License that allows the Licensee to install the floating license server to be available for Software use from any location in the world globally; and
(b) Country Floating Development License. The Country Floating Development License allows the Licensee to install the floating license server to be available for Software use from any location in one agreed country. Accessing and reserving the Country Floating Development License from any other country is expressly prohibited.
2.1.3 Available Software Formats. The Software Development License specified above in this Section 2.1 will allow the Licensee to use and execute the Software in source code, object or executable form (as determined by Rightware in the Documentation) for the sole purpose of developing Embedded Applications.
2.2 Kanzi Learning License. Rightware may, at its sole discretion grant to Licensee the license specified in Section 2.1 as a limited, non-exclusive, non-sublicensable, non-transferable, revocable right and license restricted for use of learning and competence development purposes only. The Kanzi Learning License is not subject to the payment of a Licensee Fee. Licensee is not entitled to use the Kanzi Learning License for any other activity including but not limited to (i) building commercial demonstrators, (ii) offering any kind of commercial or non-commercial services to a third party, (iii) running the Software on any embedded platform not included and documented in the Kanzi One delivery, and (iv) developing commercial applications or participate in any way in any commercial development effort. Kanzi Learning License is limited to a time period specified by Rightware. It may be terminated by Rightware at its sole discretion at any time with immediate effect. Rightware may provide limited support for the use of Kanzi Learning License at its sole discretion, and it may stop such support at any point of time.
2.3 Kanzi Mozi License. Rightware may, at its sole discretion grant to Licensee the license specified in Section 2.1 as a limited, non-exclusive, non-sublicensable, non-transferable, revocable right and license restricted for personal and non-commercial use of learning and competence development purposes only. The Kanzi Mozi License is not subject to the payment of a Licensee Fee. Licensee is not entitled to use the Kanzi Mozi License for any other activity including but not limited to (i) building commercial demonstrators, (ii) offering any kind of commercial or non-commercial services to a third party, (iii) running the Software on any embedded platform not included and documented in the Kanzi One delivery, and (iv) developing commercial applications or participate in any way in any commercial development effort. Kanzi Mozi License is limited to a time period specified by Rightware. It may be terminated by Rightware at its sole discretion at any time with immediate effect. Rightware may provide limited support for the use of Kanzi Mozi License at its sole discretion, and it may stop such support at any point of time.
2.4 Production License. Rightware grants to the Licensee, subject to the terms and conditions of these Terms, a limited, non-exclusive, worldwide, non-transferable, revocable right and license with respect to the Software and the Intellectual Property Rights to use the Software during the Term of the Agreement and subject to payment of the Production License Fees set forth in Section 3.4 herein to manufacture, market, sell, ship and commercially distribute Embedded Applications and/or End Products for commercial purposes.
2.5 Kanzi Platform Support License. Rightware grants to the Licensee, subject to the terms and conditions of these Terms a limited, non-exclusive, worldwide, non-transferable, revocable right and license with respect to the Software and all Intellectual Property Rights to use the Software during the term of the Agreement and subject to payment of the Kanzi Platform Support License Fee set forth in Section 3.3 herein to run Kanzi Engine on one specific Licensee Platform. To obtain a Kanzi Platform Support License, the Licensee needs to separately request it and deliver to Rightware a development environment that fulfils the requirements specified by Rightware. Licensee is required to loan the development environment to Rightware free of charge so that Rightware is able to properly test and prepare the Kanzi Engine on the Platform. Rightware has the obligation to return the development environment when it is no longer required as requested by the Licensee. Kanzi Platform Support License delivery will include i) ported and tested Kanzi Engine libraries for the Licensee Platform; ii) release notes how to install and use the Kanzi Engine libraries on the Platform; and iii) Kanzi binary player application that runs on the Platform.
2.6 Trial Use License. Rightware may, at its sole discretion grant to Licensee a limited, non-exclusive, non-sublicensable, non-transferable, revocable right and license for a certain period of time determined by Rightware during which the Licensee is entitled to test the Software without paying a License Fee to Rightware. During the Trial Use, Licensee is not permitted to use the Software for any commercial purposes, unless specifically authorized by Rightware in writing. At the end of the period during which Trial Use is granted, the Licensee must stop using the Software or buy a license to continue using the Software. Rightware has the right to terminate or stop any Trial Use at any point of time at its sole discretion.
2.7 New License in case of Platform Change. Any Platform Change as defined in Section 1.39 will constitute a new development environment and will therefore require the Licensee to purchase a new Kanzi Platform Support License. Changes of the internal version number or revision of the same SOC, specific toolchain or windowing system of the Platform will not be regarded as a Platform Change in the sense of this Agreement. If and to the extent that a change of the version of an operating system of the Platform does not require Rightware to rebuild and test the Kanzi Platform Support, then that change of the version of an operating system shall also be deemed not to constitute a Platform Change and there is no need to buy a new license. However, if new version of an operating system requires Rightware to rebuild the platform support package, then this shall constitute a Platform Change and requires a new license.
2.8 Sublicensing. The Licensee shall be entitled to grant a limited right of use in respect of its Software Development License and/or Kanzi Platform Support License to a subcontractor of Licensee solely as far as this is necessary to enable such subcontractor to provide required services to Licensee. Any other use by Licensee's sublicensed subcontractor is strictly prohibited and Licensee is not entitled to grant any Production License to any of its subcontractors. Licensee is responsible for the limited use of the sublicenses as provided for in this Section and the compliance by its sublicensed subcontractors with the Terms of this Agreement. Licensee is obliged to pay to Rightware the applicable License Fees agreed upon between the Parties for any limited use of the Software Development License and/or Kanzi Platform Support License by a subcontractor. Rightware does not directly support any subcontractor to whom the limited right of use as provided for in this Section is granted.
2.9 Ownership of Intellectual Property Rights. Rightware and the licensors of Third Party Software, respectively, own and solely retain all rights, title and interest including but not limited to all Intellectual Property Rights to the Software and to the Kanzi Platform Support. All rights, titles and interest to the Software and to the Kanzi Platform Support shall at all times be the sole property of Rightware and its Third Party Licensors, respectively. Rightware will also retain all rights in and to the results of any possible work performed by Rightware under these Terms. Any use of the Software or Kanzi Platform Support in deviation to these Terms is expressly forbidden.
2.10 Compliance with the Terms of this Agreement. The licenses described in these Terms give the Licensee only a limited license to use the Software, which is subject to termination in accordance with Section 10. Any use of the Software in deviation to these Terms is expressly forbidden and may lead to a termination of the Agreement by Rightware according to Section 10.4. These rights and licenses are temporary and valid only for as long as the Agreement is in force.
2.11 Copies of the Software. Licensee shall only be entitled to make copies of the Software with the explicit prior written consent of Rightware. To the extent that copies of the Software are permitted by Rightware, any copy of the Software permitted hereupon shall be subject to the provisions of these Terms. Any reproductions of any portion of the Software by the Licensee shall always include all proprietary and statutory copyright notices of the original Software. The Licensee may not distribute or disclose the Software or portions thereof to third parties in deviation to the provisions of these Terms.
2.12 No Modifications of the Software. The Licensee shall neither cause nor permit any reverse engineering, disassembling, decompilation, translation, modification, adaptation of the Software, or extraction of any part of the Software, or otherwise attempt to learn the inner workings, source code, structure, algorithms, artwork or ideas underlying the Software. The Licensee is expressly prohibited from adapting, modifying, revising, improving, upgrading, enhancing and creating derivative works of the Software for any purpose including error correction or any other type of maintenance, except as expressly allowed in the Documentation. Furthermore, any Kanzi Studio project file, output file or specifical .kzb file may not be reverse engineered, exploited, compiled or used as an input or in conjunction with any external graphics or user interface rendering engine, tool or technology other than explicitly permitted in the Documentation.
2.13 Limited Use of Kanzi SDK. Subject to the terms and conditions of these Terms, Rightware grants to the Licensee a limited, non-exclusive, revocable, non-transferable license to access and use the Kanzi SDK to (i) develop, test, display and execute Plug-Ins to enhance and add features and functionalities of Software and (ii) distribute to third parties, or permit third parties to access Plug-In as defined in these Terms.
2.14 Plug-Ins. Subject to the terms of the Agreement, the Licensee is entitled to use and share with third parties who have a valid commercial (non-trial) license to Software from Rightware, any Plug-In developed with the Kanzi SDK that enhances the experience of Software users. The Licensee is, however, not entitled to commercially license or distribute the Plug-In, unless the Licensee has formally informed Rightware and obtained its prior written approval. The Licensee is solely responsible for any Plug-In that it develops and releases and it needs to clearly indicate to a potential licensor of the Plug-In that Licensee is responsible for the Plug-In and not Rightware.
Rightware reserves the right to modify the Kanzi SDK at any point of time, and to release subsequent versions. The Licensee may be required to use the most recent version of the Kanzi SDK in order to obtain functionality for associated Plug-Ins.
2.15 New Features of Rightware. The Licensee acknowledges and agrees that Rightware may create features, applications, content, and other products or services at any point of time that may be similar to Plug-Ins, and nothing in this Agreement will be construed as restricting or preventing Rightware from creating and fully exploiting such applications, content and other items, without any obligation to the Licensee. The Licensee covenants and agrees not to bring suit before any court or administrative agency or otherwise assert any claim against Rightware and/or any of its affiliates, suppliers or customers based on any of the Licensee's intellectual property rights in the Plug-Ins developed over the Kanzi SDK when they are used together with Kanzi Framework.
The Licensee agrees that it shall impose a corresponding obligation as stated above in this Section on any third party to whom Licensee may assign or transfer Licensee's intellectual property rights in Plug-Ins. This obligation is restricted to suits or other assertions based on such assigned or transferred intellectual property rights.
2.16 No Standalone Use of Kanzi Feature Packs. Any standalone use of Feature Packs (without software dependency and/or co-existence in/with Kanzi Framework) is explicitly forbidden.
2.17 No Sale of Rights. The Agreement shall not be deemed to result in the sale, transfer or any other conveyance of patents, trademarks, copyrights, or any other Intellectual Property Right of whatsoever nature held or used by Rightware to the Licensee.
3 FEES¶
3.1 Software Development License Fee. In consideration of the Software Development License granted to the Licensee under Section 2.1 the Licensee shall pay Rightware license fees set forth in the Agreement or as otherwise agreed. This Software Development License Fee is either a fee for the Subscription License as specified in Section 3.2, i.e. a Subscription License Fee or a one-time fee for the Perpetual License, i.e. a Perpetual License Fee, specified in Section 3.3.
3.2 Subscription License Fee. Subscription License Fee is a fee payable for the period of the Subscription License, which is determined by and payable according the commercial offer of Rightware as accepted by Licensee or otherwise agreed in the Agreement. Rightware hereby reserves a right to amend the Subscription License Fee from the beginning of the next Subscription License Term by communicating the new Subscription License Fee to the Licensee at the latest two (2) months before the beginning of the new Subscription License Term. If the Licensee wishes not to accept the new Subscription License Fee, the Licensee may terminate the Agreement the latest one (1) month before the next Subscription License Term begins. Should the Licensee not terminate the Subscription License despite of its non-acceptance of the new Subscription License Fee proposed by Rightware, Rightware shall then be entitled to terminate the Subscription License with immediate effect.
3.3 Perpetual License Fee. Perpetual License Fee is a one-time fee for the Kanzi Platform Support License, payable on the due date specified in the commercial offer of Rightware as accepted by Licensee.
3.4 Production License Fee(s). In consideration of the Production License granted to the Licensee under Section 2.4 the Licensee shall pay Production License Fee(s) to Rightware. The Production License Fee due to Rightware is calculated based on: (i) number of Functionalities that the customer creates with Embedded Applications per End Product, (ii) Software components used in Embedded Applications (e.g. Kanzi Engine or Kanzi Feature Pack libraries used in development), and (iii) End Product shipment volumes. Specific Production License pricing for different configurations is described in a separate commercial offer of Rightware or a Price List, provided by Rightware, as accepted by Licensee. The Production License Fee shall be agreed in writing between Rightware and Licensee. If no Production License Fee is agreed in writing between the Parties, no Production License pursuant to Section 2.4 is concluded.
3.5 Records. Licensee shall maintain complete and accurate records of the Sales of End Products. Beginning with the Effective Date, Licensee shall forward records of End Product Sales with corresponding Production Licensee Fee report and calculation to Rightware within thirty (30) days after the end of each fiscal quarter of the Licensee ("Production Period"). The Production License Fee shall be invoiced by Rightware according to said records of the Sales of End Product after the end of each fiscal quarter of the Licensee. The Licensee agrees that the Production License Fees are payable in Euros.
3.6 Due Date of Production License Fee(s). The due dates for the payment of the respective Production License Fee(s) are determined by the respective invoices issued by Rightware to Licensee. Overdue payments shall bear interest from the due date at the rate of the lower of one and a half percent (1.5%) per month or the maximum rate permissible under the applicable law. If the Licensee fails to provide the information regarding the aggregate Sales of End Product within the time provided in Section 3.5, the entire amount of all of the Production License Fees due shall bear a late payment interest beginning from the due date for submitting the Sales information by Licensee pursuant to Section 3.5 until payment of the correct and due amount of the Production License Fees.
3.7 Charges on License Fees. Subscription License Fees, Maintenance Fees, Production License Fees and any other License Fees, if any, as agreed by the Parties in the Agreement are net amounts. They are exclusive of any sales, use, excise, withholding, value added tax (VAT) or other tax or governmental charges imposed on the licensing or use of the Software, if applicable. Any such taxes and/or other charges will be added to the fees, if they are applicable. Except as provided herein, the Parties acknowledge and agree that otherwise each Party shall bear responsibility for its own tax liabilities created as a result of the Agreement.
4 REPORTS, MAJOR VERSIONS, MINOR VERSIONS AND MAINTENANCE UPDATES¶
4.1 Agreement to Software Monitoring. The Licensee explicitly agrees that Rightware receives on a periodical basis monitoring reports via the Software in an anonymized form as to (i) possible errors of the Software, (ii) usage reports regarding the extent of the use of the Software, and/or (iii) software availability, license and usage information to enable Rightware to properly manage the licenses granted and to improve the Software.
Furthermore, the Licensee of a Kanzi Learning License and/or a Kanzi Mozi License authorizes Rightware to check and monitor the projects created with the Kanzi Learning License and/or a Kanzi Mozi License. Such monitoring will be done by way of automatic uploads of the usage of the Software and the project information running on Licensee's computers connected to the Rightware servers via the Internet. Rightware may only use the information received by the monitoring of the usage of the Software and project information to check that the Licensee of the Kanzi Learning License and/or a Kanzi Mozi License complies with these Terms.
4.2 Modification of Software Versions, Maintenance. Rightware may from time to time at its sole discretion provide new Minor Versions and Maintenance Updates containing error corrections, bug fixes and possible new features to the Software. The Licensee with a valid Subscription License or a valid Maintenance Agreement is entitled to receive such Minor Versions and Maintenance Updates if and when they are made available by Rightware. Rightware will provide Maintenance Updates only to the most recent Minor Version (e.g. 3.1) at its sole discretion and shall have no obligation to provide any services to any previous version of the Software, unless the version of the Software licensed to Licensee is a LTS Minor Version. Rightware may, at is sole discretion, stop providing Maintenance Updates and Maintenance Services as specified in Section 2.1 of the Maintenance Agreement to LTS Minor Version after 5 years have passed from the date of delivery of the respective LTS Minor Version. Rightware shall, however, have no obligation to provide any services, bug fixes or error corrections to any other Maintenance Update than the most recent one (e.g. 3.2.2 shall receive no support if 3.2.4 is the latest Maintenance Update)
4.3 Maintenance Updates. A Licensee with a valid Software Development License shall be entitled to Maintenance Services as specified in Section 2.1 (i) and (ii) of the Maintenance Agreement.
4.4 Maintenance for Perpetual License. If the Maintenance Agreement concluded between Rightware and a Licensee holding a Perpetual License has expired, but such Licensee wishes to enter again into a Maintenance Agreement, such Licensee will have to pay the Maintenance Fee for the time period between the date of the expiry of the former Maintenance Agreement and the respective effective date of a new Maintenance Agreement.
4.5 Financial Terms of Major Version. Rightware may from time to time release a Major Version of the Software. A Major Version may be subject to separate license terms and license fees, as provided by Rightware at the time of the release.
4.6 LTS Minor Version Required. The Licensee shall always use one of the LTS Minor Versions if Licensee intends to use the Software for Embedded Applications or for an End Product.
5 AUDIT¶
5.1 Retention Period for Records. The Licensee who is obliged to pay Production License Fees to Rightware in accordance with Section 3.4 shall retain a separate and accurate record of the Sales of the End Product for a period of six (6) years after the date of the payment of the Production License Fees due for the respective Production Period in accordance with Sections 3.4 and 3.5.
5.2 Audit Procedure. Rightware's authorized representative shall have the right, as long as the Licensee is obliged to keep the records in question under Section 5.1, upon giving reasonable notice in writing, not more than once per calendar year (provided that a further audit may be undertaken in any year where such audit reveals any material errors) to have its appointed chartered accountant examine, during the Licensee's normal business hours, the records referred to in Section 5.1 above and verify that the respective license (the Subscription License, the Production License, the Global Floating Development License, the Country Floating Development License, the Kanzi Learning License, the Kanzi Mozi License, the Kanzi Platform Support License or the Trial Use License) is used in accordance with this Agreement. Any such examination shall be conducted in such manner as to not unduly interfere with the business of the Licensee and the Licensee shall use reasonable efforts to assist in the examination. If the examination reveals an underpayment to the Rightware of any amount properly due, then the Licensee shall immediately pay the difference between the amount paid by Licenses and the amount due plus interest on such sum from the time due until payment in accordance with interest on overdue payments described in Section 3.6 to Rightware and reimburse Rightware for any reasonable costs of carrying out the examination. If the examination reveals an error of greater than ten per cent (10%) in the calculation of Production License Fees for any Production Period, then the Licensee shall pay the amount properly due with twenty per cent (20%) annual penalty interest on the detected overdue amount and reimburse Rightware for any reasonable costs of carrying out the examination. If the examination reveals that (i) a Kanzi Learning License, a Kanzi Mozi License or a Trial Use License has been used for any commercial purposes contrary to Sections 2.2, 2.3 or Section 2.6, respectively, or (ii) a Floating Development License - be it a Global Floating Development License, be it a Country Floating Development License - has been used at more sites than the ones agreed by the Parties or otherwise in contradiction with Section 2.1.2, then the Licensee shall pay such amount that would have been payable for an equivalent Global Floating Development License for the whole duration of such License multiplied by five and reimburse Rightware for any reasonable costs of carrying out the examination. Additionally, Rightware is entitled to terminate this Agreement immediately without notice. The unauthorized use may be subject to criminal sanctions according to applicable laws.
6 CONFIDENTIALITY¶
6.1 Exchange of Confidential Information. The Parties may provide each other with Confidential Information.
6.2 Secrecy Obligations. Each Party agrees that with respect to Confidential Information of the other Party it shall: (i) not use any Confidential Information for any purpose other than as expressly set forth in these Terms; (ii) other than explicitly stated in these Terms, not copy, reproduce, store, adapt, incorporate, change, modify, further develop or convey, any portion of the Confidential Information; (iii) not directly or indirectly disclose, furnish, provide, publish, disseminate or make available, except in the course of the valid license, any Confidential Information provided by the disclosing Party, which has not been publicly disclosed, in particular but without limitation, by preventing any unauthorized copying and use of the Confidential Information by its employees or any other third parties; (iv) disclose such Confidential Information only to those employees and contractors on a "need-to-know" basis, whose duties require the knowledge of a certain part of the Confidential Information to consider and effectuate the purpose of the Agreement. The Party receiving Confidential Information hereby undertakes that each of such employees and/or contractors has agreed to and is bound by confidentiality obligations as protective as those contained in these Terms before any disclosure of Confidential Information to them; (v) ensure that each medium containing the Confidential Information made available to any employee or contractor is clearly marked "Confidential" to notify that the information contained therein is confidential and proprietary to the disclosing Party and (vi) take all necessary precautions and take actions to prevent Confidential Information from being disclosed to a third party.
6.3 Exemptions. The restrictions set in Section 6.2 shall not apply to any portion of the Confidential Information which: (i) was previously known to the receiving Party without any breach of obligations of confidentiality; (ii) is obtained after the Effective Date hereof from a third party who is lawfully in possession of such information and not in violation of any contractual or legal obligation to the disclosing Party with respect to such information; (iii) is or becomes part of the public domain through no fault of the receiving Party; (iv) is independently, without any breach of the Agreement, ascertainable or developed by the receiving Party or its employees; (v) is required to be disclosed due to administrative or judicial action provided that the receiving Party immediately after receiving notice of such action notifies the disclosing Party of such action to give the disclosing Party the opportunity to seek any other legal remedies to maintain such Confidential Information in confidence; or (vi) is approved for release by prior written authorization of the disclosing Party.
6.4 Degree of Secrecy Obligation. The receiving Party agrees to use the same degree of care and maintain alike secure environment that it uses to protect its own unreleased products, prototypes, know-how and other confidential information of alike nature from unauthorized disclosure, but in no event less than a reasonable degree of care.
6.5 Publications and References. The Parties agree that, notwithstanding the secrecy obligations regarding Confidential Information as provided herein, Rightware shall be entitled, after the conclusion of a Software Development License between the Parties pursuant to Section 2.1, to add Licensee's name and its logo to Rightware's web page and presentations and refer to the Licensee publicly as its customer. Furthermore, after the conclusion of a Production License with the Licensee, Rightware will have the right to issue a public announcement regarding Licensee's use of Kanzi One, Licensee's name, its logo as well as the name, vehicle brand where the End Product will be installed or integrated, and to use such information in Rightware's marketing material and website. Any marketing information of Rightware which would go beyond the before stated information requires the prior written consent of Licensee.
6.6 Survival of Secrecy Obligation. The Parties agree that the obligations of this Section 6 shall survive any expiration, termination or rescission of the Agreement and shall remain in force for a period of three (3) years after the end or the termination of the Agreement pursuant to Section 10.
7 INTELLECTUAL PROPERTY RIGHTS¶
7.1 Acknowledgement of Intellectual Property Rights. The Parties acknowledge and agree that Rightware (and its licensors, if any) is (are) the sole owners of and retain all rights, title and interest including but not limited to all Intellectual Property Rights in and to the Software and/or Kanzi Platform Support, and any and all Intellectual Property Rights arising from them, and that the Intellectual Property Rights in and to the Software and/or Kanzi Platform Support, as well as new versions, upgrades, updates, modifications, enhancements or copies thereof and all related Documentation and any and all Intellectual Property Rights arising from them shall be and remain the sole property of Rightware or its licensors. Rightware will also retain all rights in and to the results of any possible work performed by Rightware under the Agreement.
7.2 No Sale of Intellectual Property Rights. The Agreement, any delivery or disclosure hereunder shall not be deemed to result in the sale, transfer or any other conveyance of, or create or grant any right or license under any Intellectual Property Rights of whatsoever nature held or used by Rightware to Licensee, except as specifically otherwise stated in the Agreement.
No provision contained in the Agreement shall be deemed to grant Licensee any right, title or interest otherwise as expressly set forth in the Agreement.
7.3 No Registrations. The Licensee shall not register any trademarks, tradenames or any confusingly similar marks, and shall not challenge, directly or indirectly, any Intellectual Property Rights related to the Software and/or Kanzi Platform Support, or any trademarks, tradenames or other marks, labels or logos of Rightware.
7.4 Notification. The Licensee shall promptly notify Rightware if the Licensee becomes aware of any unauthorized use of the Software and/or Kanzi Platform Support by any third party.
8 LIMITED WARRANTY¶
8.1 Extent of Warranty. Rightware warrants that for a period of ninety (90) days from the date of its first delivery, the Software and Kanzi Platform Support substantially conform to the Documentation. Except for the foregoing, the Software and Kanzi Platform Support are provided AS IS. The Licensee's exclusive remedy and the entire liability of Rightware under this limited warranty will be, at Rightware's option, sending a repaired or replacement version of the Software and/or the Kanzi Platform Support - whichever is affected by a non-conformity - to Licensee to be installed by the Licensee at Licensee's cost, or refund of the Software and/or the Kanzi Platform Support if reported (or, upon request, returned) to Rightware. In no event does Rightware warrant that the Software and/or the Kanzi Platform Support are error free or that the Licensee will be able to operate the Software and/or the Kanzi Platform Support without problems or interruptions.
8.2 No Warranty. This warranty does not apply if either the Software or the Kanzi Platform Support (a) have been altered, except by Rightware, (b) have not been installed, operated, repaired, or maintained in accordance with instructions supplied by Rightware, or (c) are or have been subjected to abnormal physical or electrical stress, misuse, negligence, or accident.
8.3 No Warranty. The warranty pursuant to Section 8.1 shall also not be applicable in case of a Kanzi Learning License, a Kanzi Mozi License or a Trial Use License.
8.4 DISCLAIMER. EXCEPT AS SPECIFIED IN THIS LIMITED WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
9 INDEMNIFICATION AND LIMITATION OF LIABILITY¶
9.1 Indemnification by Licensee. The Licensee acknowledges that Rightware has no control over the Licensee's use or exploitation of the Software and/or the Kanzi Platform Support. Licensee therefore agrees to indemnify, defend and hold Rightware, its officers, directors and employees harmless from any claims, demands, losses, damages, costs, expenses (including reasonable attorney's fees) and liabilities of whatsoever nature by any third party arising from such use or exploitation.
9.2 Indemnification by Rightware. Rightware agrees to indemnify, defend and hold the Licensee, its officers, directors and employees harmless from any claims, demands, losses, damages, costs, expenses (including reasonable attorney's fees) against the Licensee, arising out of any claim by a third party whose rights have been infringed to the extent it is based on the ground that the Software and/or the Kanzi Platform Support (excluding Third Party Software) infringe any copyright, trade secret, patent, or trademark right of such third party provided that the Licensee promptly notifies Rightware in writing of such claims and permits Rightware to defend or settle the claims on behalf of the Licensee and provides to Rightware, at its request and at the Rightware's expense, all necessary information and assistance available and the necessary authorization. Rightware shall pay the damages awarded in court proceedings or agreed to be paid to the third party claiming such damages, if the Licensee has acted in accordance with the foregoing.
9.3 Remedies. If in the reasonable opinion of Rightware the Software and/or the Kanzi Platform Support infringe third party intellectual property rights or if such infringement has been confirmed in court proceedings, Rightware shall and may at its own expense and discretion either (a) obtain the necessary rights to continue the use of the Software and/or the Kanzi Platform Support for the Licensee; (b) send to Licensee replacement or modified Software and/or Kanzi Platform Support that does not violate such third party rights. Modified or replacement Software and/or Kanzi Platform Support will be installed by the Licensee at the Licensee's cost. If none of the above-mentioned alternatives is available to Rightware on reasonable terms, the Licensee shall, at the request of Rightware, stop using the Software and/or Kanzi Platform Support and return it, and Rightware shall refund the price paid by the Licensee for the Software and/or Kanzi Platform Support.
9.4 No Remedies in case of Software Use not in Conformity with the Agreement. Rightware shall, however, not be liable if the claim results from (a) the use of the Software and/or the Kanzi Platform Support in a modified form or in combination with software or materials not furnished by Rightware; (b) any content, information, or data provided by the Licensee or third parties; (c) alteration of the Software and/or the Kanzi Platform Support by the Licensee or any third party not authorized by Rightware, or (d) from the fact that such claim of a third party could have been avoided by the use of a newer version or update of the Software and/or the Kanzi Platform Support and such newer version or update of the Software and/or the Kanzi Platform Support had been or is offered for use to the Licensee by Rightware.
9.5 Limited Liability. Rightware's liability for an infringement of intellectual property rights of a third party resulting from the permitted use of the Software and/or the Kanzi Platform Support by the Licensee shall be limited to this Section 9.
9.6 NO LIABILITY FOR INDIRECT OR SIMILAR DAMAGES. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, AND EXCEPT FOR BREACHES OF SECTION 2 OR BREACHES OF RIGHTWARE'S INTELLECTUAL PROPERTY RIGHTS, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, INCLUDING SUCH DAMAGES ARISING FROM TORT, BREACH OF CONTRACT OR BREACH OF WARRANTY, INCLUDING DAMAGES FOR INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.7 LIMITATION OF RIGHTWARE'S LIABILITY. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, 'IN NO EVENT SHALL RIGHTWARE'S 'LIABILITY TO LICENSEE FOR ANY CLAIM ARISING OUT OF THESE TERMS EXCEED THE AMOUNT OF FEES PAID BY THE LICENSEE TO RIGHTWARE DURING THE SIX (6) MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO SUCH CLAIM.
10 TERM AND TERMINATION¶
10.1 Subscription License. The Section 10.1 shall apply only if the Parties have agreed on a Subscription License. The Agreement shall enter into force on the Effective Date and shall remain in force for the Subscription License Term set forth in the respective commercial offer of Rightware and Licensee's acceptance thereof. If the Subscription License and thus the Agreement is not terminated by a Party at the latest two (2) months prior to the expiration of a Subscription License Term, the Subscription License will automatically be renewed by the same Subscription License Term as the expired one. Either Party may also terminate the Agreement in accordance with Section 10.3 below.
10.2 Perpetual License. Section 10.2 shall only apply if the Parties have agreed on a Perpetual License. In such a case, the Agreement shall enter into force on the Effective Date and shall remain in force until terminated in accordance with Section 10.4 below.
10.3 Term of the Agreement. The Agreement is in force for the Term of the Agreement and ends automatically without the need of a termination notice at the end of the Term of the Agreement unless these Terms provide otherwise.
10.4 Extraordinary Termination. Either Party may terminate the Agreement with immediate effect by a notice in writing in the event that (i) the other Party has materially breached any of its obligations under the Agreement, unless such breach is cured within a fourteen (14) day period following a written notice to the Party in breach of the Agreement, specifying the breach and time for curing it, or (ii) the other Party is or becomes the subject of bankruptcy or insolvency proceedings or has an administrator, receiver or liquidator of its assets appointed or otherwise ceases payments. The Licensee has also the right to stop the use of the Software and/or the Kanzi Platform Support at any point of time, without any specific or implied reason. However, the Licensee is not entitled to any refund of fees already paid or to withhold any fees due to Rightware even if it discontinues the use of the Software and/or the Kanzi Platform Support as specified above.
10.5 Consequences of the End or a Termination of the Agreement. At the end of the Term of the Agreement and/or upon termination of the Agreement, the Licensee shall on the date of the end of the Term of the Agreement or the termination: (i) cease to use the Software and the Kanzi Platform Support, (ii) upon instructions and option of Rightware either return or destroy all authorized copies of the Software and the Kanzi Platform Support, Documentation and Rightware's Confidential Information together with all reproduction and modifications thereof, and (iii) give Rightware a written guarantee stating that the Licensee has complied with all of its obligations under this Section. This Section 10 shall survive the end of the Term of the Agreement and any expiration or termination of the Agreement. Notwithstanding the aforesaid and despite of the termination of the Agreement, the Licensee shall have the right to sell off or otherwise distribute those Embedded Applications or End Products which were produced by Licensee during the Term of the Agreement, provided that the Licensee continues to pay the Production License Fees in accordance with the Agreement.
10.6 Surviving Provisions. Notwithstanding anything to the contrary contained herein, the Sections: 1, 3, 4, 5, 6, 7, 9, 10, 11 and 12 will survive any end of the Term of the Agreement, as well as any termination or expiration of the Agreement.
11 MISCELLANEOUS¶
11.1 No Waiver. A delay by either Party in enforcing the provisions of the Agreement shall not prejudice or restrict its rights nor shall any waiver of rights operate as a waiver of any subsequent breach.
11.2 Severability. If a provision of the Agreement or the application of any such provision would be invalid, void or unenforceable and/or should be held by a Court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement shall remain in full force and effect to the maximum extent permissible by the applicable law. The Parties undertake to replace the invalid or unenforceable provision which comes the closest to the intention and economic purpose of the Parties envisaged with the invalid or unenforceable provision.
The same shall apply if the Agreement contains a gap.
11.3 Assignment. Neither Party may assign its rights or obligations under the Agreement or the entire Agreement to a third party without the written consent of the other Party; the same applies if a Party intends to assign this Agreement to another company of the same corporate group to which the Party belongs.
11.4 Written Form Requirement. Any modification, changes or amendments to the Agreement, including this provision must be made in writing and documented.
11.5 Entire Agreement. The Agreement, including the respective commercial offer of Rightware relating thereto and Licensee's approval thereof, is the Parties' entire agreement on this subject and merges and supersedes all related prior and contemporaneous communications and agreements.
11.6 Change of Terms. These Terms may be modified from time to time by Rightware by informing the Licensee of the same in writing. The changed Terms shall become binding on the Licensee, unless the Licensee informs Rightware in writing within thirty (30) days from Rightware's notice that it does not accept such changes.
12 APPLICABLE LAW; ARBITRATION¶
12.1 Applicable Law. The Agreement is construed, made, executed and delivered in Helsinki, Finland and any controversy arising hereunder or relation to these Terms and the Agreement shall be governed by and construed in accordance with the laws of Finland. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement and is strictly excluded in all proceedings.
12.2 Arbitration. Any and all disputes arising under or in connection with these Terms or the Agreement, its negotiations, performance, breach, existence or validity shall be finally settled by arbitration in Helsinki, Finland, to the exclusion of any ordinary courts in accordance with the Arbitration Rules of the Finland Chamber of Commerce in English language.
Appendix A Support and Maintenance Agreement¶
WHEREAS, the Licensee has been granted a license for the Software and/or the Kanzi Platform Support from Rightware under the Terms and the Agreement;
WHEREAS, the Licensee with a valid Software Development License is entitled to receive Support and Maintenance Services specified in 2.1 (i) and (ii) of this Support and Maintenance Agreement ("Maintenance Agreement") and may also acquire additional support and maintenance services from Rightware in accordance with the terms and conditions of this Maintenance Agreement. Furthermore, the Licensee with Kanzi Platform Support Maintenance in force, is entitled to receive the Support and Maintenance Services specified in 2.1 (iii) of the Maintenance Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions set forth herein, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
1 DEFINITIONS¶
Capitalized terms used in this Maintenance Agreement shall have the meaning given to them in the Terms, respectively the Agreement, (hereafter only referred to as "Terms"), unless such terms are not defined in the Terms or are differently defined herein.
1.1 "Design Services" shall mean mutually agreed design and optimization services either priced according to a separate statement-of-work document or at the hourly rate defined in the Price List as provided in Section 1.42 of the Terms.
1.2 "Engineering Services" shall mean mutually agreed engineering services either priced according to a separate statement-of-work document or at the hourly rate defined in the Price List as provided in Section 1.42 of the Terms.
1.3 "Kanzi Platform Support Maintenance" shall mean the Support and Maintenance Services as specified in Section 2.1 (iii) hereof.
1.4 "Kanzi Platform Support Maintenance Fee" shall mean the fee that Licensee shall pay to Rightware per each Kanzi Platform Support License for which Licensee wishes to receive maintenance services pursuant to Section 2.1 (iii).
1.5 "Training Services" shall mean the professional training performed by Rightware on the usage of the Software and/or the Kanzi Platform Support, upon the request of the Licensee and priced as specified in the Price List.
2 SERVICES¶
Under this Maintenance Agreement, and subject to payment of the fees set forth in the Price List or in a respective commercial offer of Rightware, as agreed upon by the Licensee, Rightware shall provide the Licensee with the following Services:
2.1 Support and Maintenance Services. According to the provisions of this Maintenance Agreement Rightware shall during the term of this Maintenance Agreement provide the Licensee with the following support and maintenance services ("Support and Maintenance Services"):
(i) timely email and phone advice and assistance during Finnish business hours on the use of the Software; and/or
(ii) providing the Licensee with a copy of any Minor Versions and Maintenance Updates, if and when these become generally available. For the sake of clarity: Any new Major Version(s) is/are subject to a new License Fee and terms to be agreed between the Parties; and/or
(iii) providing to the Licensee, upon Licensee's specific request, the delivery of the latest Minor Version and/or Maintenance Update(s) for the Platform for which the Licensee has a valid Kanzi Platform Support License. Licensee may have to send its development environment to Rightware for this purpose as outlined above in Section 2.5 of the Agreement.
In order for Rightware to provide and prior to performing any of the above listed Support and Maintenance Services, the Licensee has
to register on Rightware's online support-portal with a valid email-address owned or controlled by the Licensee (N.B., work-email), and
to explicitly accept that Rightware (i) communicates with Licensee via the registered e-mail address and (ii) sends notifications to Licensee's registered email-address, related to issues of importance regarding the Support and Maintenance Services.
2.2 Period of Kanzi Platform Support Maintenance. Kanzi Platform Support Maintenance period is one year from the date of the purchase of the services provided hereunder. If the Kanzi Platform Support Maintenance has expired but the Licensee holding a Perpetual License wishes to enter again into a Maintenance Agreement, such Licensee will have to pay the Maintenance Fee for the time period between the date of the expiry of the former Maintenance Agreement and the respective Effective Date of a new Maintenance Agreement.
2.3 Design Services. Rightware will provide design services to the Licensee upon a separate request. The Design Services include among others graphic and user interface design, special design and Kanzi Studio implementation optimizations, design concept creation, design asset creation, design consultation and visual design creation services. Design services are subject to fees agreed for such service between the Parties.
2.4 Training Services. Rightware will provide Training Services to the Licensee upon a separate request. Rightware's Training Services include among others both hands-on and theoretical training for the employees of the Licensee. The agenda and contents for each training will be separately agreed upon and the topics may include the general use of the Software and the Kanzi Platform Support, graphics programming with the Software and the Kanzi Platform Support and application development with the Software and the Kanzi Platform Support. Training Services are subject to fees agreed for such service between the Parties.
2.5 Engineering Services. Rightware will provide engineering services to the Licensee upon a separate request. Rightware's Engineering Services include among others software design and development, special Software and Kanzi Platform Support optimizations, Software and Kanzi Platform Support extra features deliveries and general software consultation. Engineering Services are subject to fees agreed for such service between the Parties.
3 FEES¶
3.1 Kanzi Platform Support Maintenance Fee. Kanzi Platform Support Maintenance Fee is an annual fee that is defined in the Price List for providing the services defined in Section 2.1 (iii) of this Maintenance Agreement.
3.2 Fees for Design, Engineering and Training Services. The fees for Design, Engineering and Training Services will have to be paid by Licensee in accordance with the commercial offer of Rightware as accepted by Licensee or the corresponding mutually agreed statement of work document.
3.3 Modification of Kanzi Platform Support Maintenance Fee. Kanzi Platform Support Maintenance Fee set forth in the Price List is subject to change. Rightware has the right to modify any price in the Price List before the beginning of a Term as specified in Section 4.1 hereof by communicating the new prices to the Licensee in writing at least 30 days before the beginning of a new Term. If the Licensee does not want to accept the new prices, the Licensee shall have the right to terminate the services defined in Section 2.1 (iii) of the Maintenance Agreement before the beginning of the new Term. If the Licensee does not terminate the services defined in Section 2.1 (iii) of the Maintenance Agreement as provided in this provision before the beginning of the new Term despite of its non-acceptance of the new prices proposed by Rightware, Rightware shall then have the right to terminate the services defined in Section 2.1 (iii) of the Maintenance Agreement with immediate effect.
4 TERM¶
4.1 Term. The Maintenance Agreement shall enter in force on the Effective Date and stays valid and binding for the same duration as the Agreement, provided, however, that in case of a Licensee holding a Perpetual License, Section 4.2 hereof shall apply, if such Licensee stops paying the Kanzi Platform Support Maintenance Fee.
4.2 Termination. If and when the Agreement ends, becomes ineffective or is terminated by either Party, this Maintenance Agreement shall also cease to exist without the necessity of a separate termination notice to terminate the Maintenance Agreement. If a Licensee holding a Perpetual License stops paying the Kanzi Platform Support Maintenance Fee, the Support and Maintenance Services pursuant to Section 2.1 (iii) of the Maintenance Agreement will terminate at the end of the fully paid service period.
5 OTHER TERMS¶
5.1 Unless otherwise explicitly provided herein the Terms shall also govern the Maintenance Agreement.
Version 1_17_03_2023