KANZI SOFTWARE LICENSE TERMS¶
NOTICE TO THE USER: PLEASE READ THESE KANZI SOFTWARE LICENSE TERMS CAREFULLY. BY DOWNLOADING, INSTALLING, STARTING OR OTHERWISE USING THE SOFTWARE YOU ACCEPT THESE TERMS. 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 SOFTWARE LICENSE TERMS (“Terms”) apply for the licensing of the Kanzi Software developed by Rightware Oy (“Rightware”), a corporation organized and existing under the laws of Finland, having its registered office in Itämerenkatu 1, 00180 Helsinki, Finland.
1 DEFINITIONS¶
For the purposes of these Terms:
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 additional or conflicting terms specified in any correspondence, purchase order or other document issued by Licensee are deemed proposals only and are hereby rejected and invalid.
1.2 “Confidential Information” shall mean and refer to any and all other confidential or proprietary information, documents, software code and other related materials thereby, whether verbal, printed or in machine-readable form or otherwise, regardless of possible medium, disclosed, delivered or otherwise made available to the receiving Party by the disclosing Party during the term of the Agreement, and 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, however it can be disclosed to third parties with prior consent from the other Party.
1.3 “Effective Date” shall mean the date set forth in the Agreement, or the date when the Licensee has downloaded the Software and accepted these Terms.
1.4 “Embedded Applications” shall mean any and all software applications developed using Software that contain Kanzi Runtime and/or Kanzi Connect and are embedded into devices or systems.
1.5 “Device” shall mean an embedded system, containing one display that is used to render Embedded Applications. Systems that contain two or more displays count correspondingly as two or more Devices unless they are used for the same function i.e. they form a single instrument cluster or a single infotainment/center console or a head up display.
1.6 “Documentation” shall mean any documentation, specifications, instructions and any other materials related to Software as provided to the Licensee by Rightware.
1.7 “Dongle” shall mean a physical USB port key delivered by Rightware to be connected and plugged in to the respective computer where Kanzi Studio is being used with Dongle License.
1.8 “Intellectual Property Rights” shall mean, on a worldwide basis, all now known and hereafter known or acquired tangible or intangible (i) rights associated with works of authorship including, without limitation, copyrights (including, but not limited to, ownership rights in all titles and software code, concepts and any related documentation) and (where said registrations, renewals and/or extensions exist) copyright registrations, applications, renewals and extensions thereof, database rights, and mask-works, (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.
1.9 “Kanzi Connect” consists of specific application programming interfaces, interface definitions, generated code libraries and associated tools, which allows the Licensee to create connected applications in embedded environments that facilitate quick and simple data sharing and management between different user interface clients.
1.10 “Kanzi Connect Production License” shall mean production license for the Kanzi Connect as provided in Section 2.6.
1.11 “Kanzi Runtime” shall mean a proprietary software user interface and graphics engine developed and distributed by Rightware.
1.12 “Kanzi Learning License” shall mean license granted for learning and competence development purposes as provided in Section 2.2.
1.13 “Kanzi Platform Support License Fee” is defined in Section 3.5 below.
1.14 “Kanzi SDK” consists of specific application programming interfaces, interface definitions, generated code libraries and associated tools, which allows the Licensee to create software plug-ins or applications that work along with Kanzi Runtime and Kanzi Studio to read, write or update certain content from Kanzi UI libraries (databases).
1.15 “Kanzi Studio” shall mean proprietary content development software tool for Kanzi Runtime.
1.16 “Kanzi UI” shall mean Kanzi Studio and Kanzi Runtime.
1.17 “License Fee” shall mean either Perpetual License Fee or Subscription License Fee and Kanzi Platform Support License Fee in accordance with Sections 3.3 to 3.6 herein.
1.18 “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.
1.19 “LTS Minor Version” shall mean a Minor Version nominated by Rightware in its roadmap to receive extended period support and maintenance services and that is intended for production use.
1.20 “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.
1.21 “Maintenance Fee” shall mean the fees specified to be payable for the Maintenance Services.
1.22 “Maintenance Update(s)” shall mean error corrections and bug fixes that Rightware may provide for Minor Versions from time to time. Maintenance Update 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 v3.1.2).
1.23 “Maintenance Service” shall mean all support and maintenance services provided under the Maintenance Agreement.
1.24 “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).
1.25 “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).
1.26 “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.
1.27 “Perpetual License” shall mean a perpetual license model, wherein the Licensee shall be granted a license for the term of the Agreement and such license is subject to one-time Perpetual License Fee.
1.28 “Perpetual License Fee” is defined in Section 3.2 below.
1.29 “Plug-In” shall mean plug-ins, extensions, applications or other add-in components that rely on and/or use the Kanzi SDK according to these Terms.
1.30 “Price List” shall mean the prices and terms listed in a price list attached to an Agreement or otherwise agreed between the Parties.
1.31 “Product” shall mean any product with connected user interface(s) containing Kanzi Connect and at least one Device, intended for use in a consumer end product.
1.32 “Rightware Plug-In” shall mean the Plug-Ins developed and licensed by Rightware.
1.33 “Rightware Plug-in License” shall mean the license of the Rightware Plug-in as provided in Section 2.5 herein.
1.34 “Royalty Fee” shall mean the royalty fees in accordance with Section 3.7 and 3.8 herein.
1.35 “Royalty Period” is defined in Section 3.9 below.
1.36 “Sales” shall mean the sales or other transfer of Embedded Applications.
1.37 “Software” shall mean any or all of the following software programs and documentation as context may require: Kanzi UI, Kanzi Connect and Kanzi SDK and related Documentation and Third Party Software. Software shall also include other software where these terms have been attached to or otherwise agreed to be used.
1.38 “Subscription License” shall mean a subscription based license model on the Software, wherein the Licensee shall be granted a license during the Subscription License Terms and such license is subject to monthly Subscription License Fee.
1.39 “Subscription License Fee” is defined in Section 3.3 below.
1.40 “Subscription License Term” shall mean the term of the Subscription License set forth in the Agreement.
1.41 “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.
1.42 “Trial Use” shall mean the trial, demo and testing use specified in Section 3.1 herein.
2 GRANT OF LICENSE¶
Rightware will license the Software to be used commercially for development of Embedded Applications as stated in these Terms.
2.1 Development License. Rightware grants to the Licensee, subject to the terms and conditions of these Terms and subject to payment of the License Fee set forth in Sections 3.2 - 3.5, under all of Rightware’s Intellectual Property Rights, a limited, non-exclusive, non-sublicensable, worldwide, non-transferable, revocable right and license during the term of the Agreement, depending on the agreed license type, to either: (a) install the Software to one (1) computer and use it on the computer where it is installed (“Node Locked License”); or (b) in case of Kanzi floating license to have several installations of Software in multiple computers on the Licensee’s network (“Floating License”); or (c) in case of dongle license have several installations of Kanzi Studio in multiple Licensee computers globally (“Dongle License”).
2.1.1 Node Locked Development License. Rightware may allow limited number of Node Locked Development License transfer from one computer to another e.g. in cases of computer upgrades or break downs.
2.1.2 Dongle Development License. When selecting Dongle Development License the Licensee is required to have a Dongle connected and plugged in to the respective computer when Kanzi Studio is being used. Rightware ships the Licensee one Dongle per each Dongle Development License bought by the Licensee. The Licensee is responsible for the safe keeping and all risk of loss and damage of the Dongle(s). Lost Dongles are not replaced or refunded by Rightware but the Licensee is required to purchase a new Dongle Development License to get a new Dongle. Multiple employees of the Licensee may use the same Dongle and the Dongle can be used in different geographic locations. The Licensee is not entitled to sell or otherwise hand over any Dongle to anybody outside the Licensee’s organization.
2.1.3 Floating Development License. When selecting a Floating Development License the Licensee is required to install a floating license server on the Licensee’s network or alternatively use Rightware provided floating license server. This server allows one or more (depending on the number of Floating Development Licenses bought) Software installations to function at the same time. The Kanzi floating license server needs to be installed by the Licensee on a physical server and operated within the Licensee’s internal network.
There are three Kanzi Floating Development License types:
A global multi-site Floating Development License that allows the Licensee to install the Kanzi floating license server to be available for Software use from any of the Licensee’s site globally; and
A country multi-site Floating Development License that allows the Licensee to install the Kanzi floating license server to be available for Software use from any of the Licensee’s site in one agreed country. Accessing and reserving the Floating Development License from any other location is expressly prohibited; and
A local single-site Floating Development License allows the Licensee to install and configure the Kanzi floating license server to be available for Software use from only one specified Licensee’s site. Accessing and reserving the Floating Development License from any other location is expressly prohibited.
2.1.4 The licenses specified above in this Section 2.1 allow the Licensee to use and execute the Software in object or executable form in the sole purpose of developing Embedded Applications for the platforms supported by the Software and to integrate Kanzi Runtime in the Embedded Applications for commercial purposes.
2.2 Rightware may, at its sole discretion grant to the Licensee the license specified in Section 2.1 as a limited license restricted for use in learning and competence development purposes only (“Kanzi Learning License”). The 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) run Kanzi Product on any embedded platform not included and documented in the Kanzi Product delivery; and (iv) developing commercial applications or participate in any way in any commercial development effort. Kanzi Learning License may be limited to a time period specified by Rightware and it may be terminated by Rightware at its sole discretion immediately. Rightware may provide limited support for the use of Kanzi Learning License at its discretion, but Rightware has no obligation to do so and it may stop such support at any point of time.
2.3 Production License. Rightware grants to the Licensee, subject to the terms and conditions of these Terms under all of Rightware’s Intellectual Property Rights, a limited, non-exclusive, worldwide, non-transferable, revocable right and license during the term of the Agreement and subject to payment of the Royalty Fees set forth in Section 3.6 herein to sell, ship and commercially distribute or otherwise offer the Kanzi Runtime included in the Embedded Applications for commercial purposes (“Production License”).
2.4 Kanzi Platform Support License. Rightware grants to the Licensee, subject to the terms and conditions of these Terms under all of Rightware’s Intellectual Property Rights, a limited, non-exclusive, worldwide, non-transferable, revocable right and license during the term of the Agreement and subject to payment of the Kanzi Platform Support License Fee set forth in Section 3.6 herein to run Kanzi Runtime on one specific customer embedded platform (“Kanzi Platform Support License”). To obtain a Kanzi Platform Support License, the Licensee needs to separately request it and deliver to Rightware a development environment that fulfills 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 Kanzi Runtime 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 Runtime libraries for the customer target platform; ii) release notes how to install and use the Kanzi Runtime libraries on the platform; and iii) Kanzi binary player application that runs on the platform.
2.5 Rightware Plug-In License grants to the Licensee, subject to the terms and conditions of these Terms and subject to payment of the Rightware Plug-in license fee described in the Price List, under all of Rightware’s Intellectual Property Rights, a limited, non-exclusive, non-sublicensable, worldwide, non-transferable, revocable right and license during the term of the Agreement, to install the Rightware Plug-In into any Licensee computer that has a valid Kanzi Studio License and use it as specified in Sections 2.5.1 and 2.5.2 below.
2.5.1 Rightware Plug-in Demo License entitles the Licensee to use the Rightware Plug-in for development, evaluation and demonstration use, but the Licensee is not entitled to use it for production purposes. Rightware Plug-in Demo License is not tied to a specific computer but the Licensee can work with the license on any Licensee’s computer that has a valid Kanzi Studio License.
2.5.2 Rightware Plug-in Production License entitles the Licensee to use the Rightware Plug-in for production use subject to paying the associated license fee described in the Price List for the respective production project. This means that the Licensee is entitled to go into production with products that use the Rightware Plug-in. Plug-in Production License is tied to one specific production project and using the license in consecutive production projects requires paying the associated license fee described in the Price List for each new production project.
2.6 Kanzi Connect Production License. Rightware grants to the Licensee, subject to the terms and conditions of these Terms under all of Rightware’s Intellectual Property Rights, a limited, non-exclusive, worldwide, non-transferable, revocable right and license during the term of the Agreement and subject to payment of the Kanzi Connect royalty fees set forth in Section 3.7 to use Kanzi Connect in developing products with connected user interface(s) for production use (“Kanzi Connect Production License”).
2.7 The Licensee is entitled to loan its Node Locked Development Licenses, Rightware Plug-in Licenses, Dongle Development Licenses and Kanzi Platform Support License to its subcontractors solely to enable them to provide services to the Licensee. The Licensee can also loan its Node Locked Development Licenses, Dongle Development Licenses and Kanzi Platform Support License to its customers to whom it provides services directly related to the Software. Any other use by Licensee’s subcontractors or customers (“Loan Partners”) is strictly prohibited and Licensee is not entitled to loan any Production License to them but the Loan Partners need to acquire their Production Licenses from Rightware directly. Licensee is responsible for the Loan Partners’ use of the Licenses and compliance with this Agreement. Licensee is obliged to pay normal License Fees for any loan use by the Loan Partners. Loaning Kanzi Platform Support License or Rightware Plug-in License requires new Platform Support License Fee or Rightware Plug-in License Fee to be paid for every Loan Partner. Rightware does not support such Loan Partners directly and any support by Rightware is only available for requests originating from the e-mail addresses belonging to the Licensee’s domain name.
2.8 Rightware and the licensors of Third Party Software own and solely retain all rights, titles and interest including but not limited to all Intellectual Property Rights to the Software and Rightware Plug-Ins. All rights, titles and interest to the Software and Rightware Plug-Ins shall at all times remain solely the property of Rightware and its Third-Party Licensors. 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 and Rightware Plug-Ins in deviation to these Terms is expressly forbidden.
2.9 The licenses described in these Terms give the Licensee only a limited license to use the Software and Rightware Plug-Ins, which is subject to revocation in accordance with Section 10 herein. Any other use of the Software and Rightware Plug-Ins in deviation to these Terms is expressly forbidden and may terminate the Agreement upon Rightware’s notice to the Licensee according to Section 10.3. These rights and licenses are temporary and valid only for as long as the Agreement is in force.
2.10 All the copies of the Software and Rightware Plug-Ins hereupon shall be subject to the provisions of these Terms. Any reproductions of any portion of the Software and Rightware Plug-Ins by the Licensee shall always include all proprietary and statutory copyright notices of the original Software and Rightware Plug-Ins. The Licensee may not distribute or disclose the Software and Rightware Plug-Ins or portions thereof to third parties in deviation to the provisions of these Terms.
2.11 The Licensee shall neither cause nor permit any reverse engineering, disassembling, decompilation, translation, modification, adaptation of the Software, Rightware Plug-Ins and Dongle or extraction of any part of the Software, Rightware Plug-Ins and Dongle or otherwise attempt to learn the inner workings, source code, structure, algorithms, artwork or ideas underlying in the Software, Rightware Plug-Ins and Dongle. The Licensee is expressly prohibited from adapting, modifying, revising, improving, upgrading, enhancing and creating derivative works of the Software, Rightware Plug-Ins and Dongle 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 specifically .kzb file may not be reverse engineered, exploited, compiled or used as an input or in conjunction with, with any external graphics or ui rendering engine, tool or technology other than explicitly permitted in the Documentation.
2.12 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.
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 the Licensee is responsible for the Plug-In and not Rightware.
Rightware reserves the right to modify the Kanzi SDK, 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.
The Licensee acknowledges and agrees that Rightware may create features, applications, content, and other products or services 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 UI.
The Licensee agrees that it shall impose the obligation stated above in this section on any third party to whom the Licensee may assign or transfer the Licensee’s Intellectual Property Rights. This obligation is restricted to suits or other assertions based on such assigned or transferred Intellectual Property Rights.
The Licensee shall be released from the Licensee’s covenant and agreement not to sue under this section in relation to a particular beneficiary (but not in relation to any other beneficiary) if: (a) the Licensee is first sued for Intellectual Property Rights infringement related to the Plug-Ins by such other beneficiary who benefits from the Licensee’s covenant and agreement as set forth herein; and (b) the suit is based on the Licensee’s infringement of such other beneficiary’s Intellectual Property Rights which if held by the Licensor would be subject to the covenant and agreement not to sue provided for above in this section.
2.13 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 The Parties may agree on a trial period during which the Licensee is entitled to test the Software without paying License Fees to Rightware. Kanzi Connect may be delivered together with commercial Kanzi Studio license and, in such situations, it may be used with Windows PCs for demo and testing purposes. The above trial, demo and testing use is called “Trial Use”. During Trial Use no commercial development may be done with the licenses. In the end of Trial Use the Licensee must stop using the Software or buy a license to continue using the Software. Rightware has the right to terminate any Trial Use at its sole discretion.
3.2 In consideration of the Development License granted to the Licensee under Section 2.1 the Licensee shall pay Rightware a license fee set forth in the Agreement or as otherwise agreed. This license fee is either a monthly fee for the Subscription License (“Subscription License Fee”) or a one-time fee for the Perpetual License (“Perpetual License Fee”).
3.3 Subscription License Fee. Subscription License Fee is a monthly fee invoiced by Rightware in advance quarterly or annually as agreed in Agreement or the applicable price list. Rightware hereby reserves a right to amend the License Fee from the beginning of the next Subscription License Term by informing the new License Fees 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 License Fee, the Licensee may terminate the Agreement before the next License Fee begins and the new License Fees enter into force.
3.4 Perpetual License Fee. Perpetual License Fee is a one-time fee that shall be invoiced by Rightware on or after the Effective Date as specified in the Price List.
3.5 Kanzi Platform Support License Fee. Kanzi Platform Support License Fee is a one-time fee that shall be invoiced by Rightware upon delivery of the Kanzi Platform Support License. One Kanzi Platform Support License is specific to one Licensee platform (for example Renesas R-Car M2 with QNX 6.6 OS) and changing the hardware or software revision may require the Licensee to purchase a new Kanzi Platform Support License.
3.6 In consideration of the Production License granted to the Licensee under Section 2.3 the Licensee shall pay royalty fees (“Kanzi Runtime Royalty Fee(s)”) on each Device sold or otherwise offered or distributed. Royalty Fee shall be agreed in writing between Rightware and Licensee. If no price has been agreed in writing, there is no license under Section 2.3.
3.7 In consideration of the Kanzi Connect Production License granted to the Licensee under Section 2.6 the Licensee shall also pay royalty fee on each Product. Royalty Fee shall be agreed in writing between Rightware and Licensee. If no price has been agreed in writing, there is no license under Section 2.6.
3.8 Licensee shall maintain complete and accurate records of the Device and Product Sales. Beginning with the Effective Date, Licensee shall forward records of Device and Product Sales with corresponding royalty report to Rightware within thirty (30) days after the end of each fiscal quarter of the Licensee. The Royalty Fee shall be invoiced by Rightware according to said royalty reports after the end of each fiscal quarter of the Licensee (“Royalty Period”). The Licensee agrees that the Royalty Fees are payable in Euros.
3.9 All invoices by Rightware shall be due thirty (30) days after the date of invoice from Rightware. 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 applicable law. If the Licensee fails to provide the information regarding the aggregate Sales of Devices within the time provided above, the entire sum of the Royalty Fees due shall bear a late payment interest beginning from the due date of the sales information.
3.10 License Fees, Maintenance Fees and Royalty Fees are exclusive of any sales, use, excise, withholding, value added (VAT) or other tax or governmental charges imposed on the licensing or use of the Software, if applicable. Such taxes and charges will be added to the fees, if they are applicable. 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 The Software sends to Rightware periodically i) anonymised error and usage reports, ii) software availability, license and usage information enabling license right management and so that Rightware can improve the Software.
Furthermore, the recipient of Kanzi Learning License authorizes Rightware to check and monitor the projects created with the Kanzi Learning License. This will be done by way of automatic uploads of Kanzi Product usage and project information running on Licensee’s computers connected to the Rightware servers via the Internet. Rightware may only use this usage and project information to check that the Licensee of Kanzi Learning License complies with these Terms.
4.2 Rightware may from time to time at its sole discretion provide new Minor Versions and Maintenance Updates with error corrections, bug fixes and possible new features to the Software. The Licensee with a valid Subscription License or a valid Maintenance Agreement shall have the right 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 current Minor Version (e.g. 3.1) at its sole discretion and shall have no obligation to provide any services to the older versions of the Software unless the Minor Version is a LTS Minor Version. Additionally, Rightware shall 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 The Licensees with a valid Subscription License and Licensees who have entered into Maintenance Agreement and paid the annual Maintenance Fee set forth in the Price List shall be entitled to Maintenance Service set forth in the Maintenance Agreement. If a Licensee with a Perpetual License has let the Maintenance Agreement expire and wishes to enter into a Maintenance Agreement again, such Licensee will have to pay the Maintenance Fee even for the time period(s) when the Maintenance Agreement has not been in force to make the Maintenance Agreement effective again.
4.4 The Licensees with a valid Subscription License or a valid Maintenance Agreement with Rightware shall have the right to receive new Minor Versions and Maintenance Updates free of charge if and when they are made available by Rightware.
4.5 Rightware may from time to time release a Major Version of the Software. These Major Versions may be subject to separate license terms and license fees, as provided by Rightware at the time of the release.
4.6 The Licensee shall always use one of the LTS Minor Versions for any projects that go into production.
5 AUDIT¶
5.1 The Licensee obliged to pay Royalties to Rightware in accordance with Section 3.5 shall retain a separate and accurate record of the Device and Product Sales for a period of six (6) years after making the payment of the Royalty Fees in accordance with Sections 3.6 and 3.7.
5.2 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 Kanzi floating 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 Rightware of any amount properly due, then the Licensee shall immediately pay such amount (and interest on such sum from the time due until payment in accordance with interest on overdue payments described in Section 3.7 above) to Rightware and reimburse Rightware for the reasonable costs of carrying out the examination. If the examination reveals an error of greater than ten per cent (10%) in the calculation of Royalty Fees for any Royalty Period, then the Licensee will pay the sum properly due with twenty per cent (20%) annual penalty interest for the missing sum and reimburse Rightware for the reasonable costs of carrying out the examination. If the examination reveals that any internal training license has been used for any commercial purpose against Section 3.2 above or floating license has been used at more sites that the ones agreed or otherwise in contradiction with clause 2.1, then the Licensee will pay the sum that would have been payable for equivalent number of global multi-site floating license(s) for the whole duration of the license multiplied by five and reimburse Rightware for the reasonable costs of carrying out the examination. Additionally, Rightware is entitled to terminate this Agreement immediately and the unauthorized use may be subject to criminal sanctions according to applicable laws.
6 CONFIDENTIALITY¶
6.1 Parties may provide each other with Confidential Information.
6.2 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 to only those employees and contractors, whose duties strictly justify a “need-to-know” to consider and effectuate the purpose of the Agreement and undertake that such employees and contractors are bound by confidentiality obligations as protective as those contained in these Terms; (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) make all necessary precautions and take actions to prevent Confidential Information from being disclosed to a third party.
6.3 However, 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 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 by 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 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 a like nature from unauthorized disclosure, but in no event less than a reasonable degree of care.
6.5 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 from the Effective Date, or if the Confidential Information is disclosed after the Effective Date, for a period of three (3) years from the date of disclosure of the respective piece of Confidential Information.
7 INTELLECTUAL PROPERTY RIGHTS¶
7.1 The Parties acknowledge and agree that Rightware (and its licensors, if any) solely own and retain all rights, titles and interest including but not limited to all Intellectual Property Rights in and to the Software, Rightware Plug-Ins and the Dongle and any and all Intellectual Property Rights arising from them, and that the Intellectual Property Rights in and to the Software, Rightware Plug-Ins and Dongle 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. 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.
7.2 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, Rightware Plug-Ins or Rightware trademarks, tradenames or other marks. Anything contained in the Agreement shall not be deemed to grant Licensee any right, title or interest otherwise as expressly set forth in the Agreement.
7.3 The Licensee shall promptly notify Rightware if the Licensee becomes aware of any unauthorized use of the Software or Rightware Plug-Ins by any third party.
8 LIMITED WARRANTY¶
8.1 Rightware warrants that for a period of ninety (90) days from the date of its first delivery, the Software and Rightware Plug-Ins substantially conform to the Documentation. Except for the foregoing, the Software and Rightware Plug-Ins 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 Software and Rightware Plug-Ins to Licensee to be installed by the Licensee at Licensee’s cost, or refund of the Software and Rightware Plug-Ins if reported (or, upon request, returned) to Rightware. In no event does Rightware warrant that the Software and Rightware Plug-Ins are error free or that the Licensee will be able to operate the Software and Rightware Plug-Ins without problems or interruptions.
8.2 This warranty does not apply if the Software or Rightware Plug-Ins (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) have been subjected to abnormal physical or electrical stress, misuse, negligence, or accident.
8.3 During the validity of the Dongle License, Rightware agrees to send a replacement Dongle for faulty Dongles at its cost. The Licensee shall immediately inform Rightware of any faulty Dongles and send back the faulty Dongle to Rightware at the Licensee’s cost. No part of License Fees will be refundable because of faulty Dongles.
Rightware is entitled to charge from the Licensee a new Dongle License fee if the faulty Dongle is not returned within one month from when the Licensee reported a faulty Dongle and Rightware shipped a replacement Dongle.
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 The Licensee acknowledges that Rightware has no control over the Licensee’s use or exploitation of the Software. 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 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) arising out of any claim by a third party whose rights have been infringed against the Licensee to the extent it is based on that Software (excluding Third Party Software) or Rightware Plug-Ins infringe any copyright, trade secret, patent, or trademark right of a third party provided that the Licensee promptly notifies Rightware in writing of such presented claims and permits Rightware to defend or settle the claims on behalf to the Licensee and gives to Rightware, at the request of Rightware and at the Rightware’s expense, all necessary information and assistance available and the necessary authorization. Rightware shall pay all damages awarded in a trial or agreed to be paid to a third party if the Licensee has acted in accordance with the foregoing.
9.3 If in the reasonable opinion of Rightware the Software or Rightware Plug-Ins infringe third party Intellectual Property Rights or if such infringement has been confirmed in a trial, Rightware shall and may at its own expense and discretion either (a) obtain the right to continue use of the Software or Rightware Plug-Ins for the Licensee; (b) send to the Licensee replacement Software or Rightware Plug-Ins that complies with the Agreement; or (c) send to the Licensee modified Software or Rightware Plug-Ins where the infringement has been eliminated in such a manner that the modified Software or Rightware Plug-Ins complies with the Agreement. Modified or replacement Software or Rightware Plug-Ins 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 or Rightware Plug-Ins and return it, and Rightware shall refund the price paid by the Licensee for the Software or Rightware Plug-Ins.
9.4 Rightware shall, however, not be liable if the claim results from (a) use of any Software, Rightware Plug-Ins or technology 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 or Rightware Plug-Ins by the Licensee or any third party not authorized by Rightware, or (d) could have been avoided by the use of a newer version Software or Rightware Plug-Ins or Update and which Software version or Update is offered for use to the Licensee by Rightware.
9.5 Rightware’s liability for infringement of Intellectual Property Rights shall be limited to this section 9.
9.6 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 TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, AND EXCEPT FOR BREACHES OF SECTION 2 OR BREACHES OF RIGHTWARE’S INTELLECTUAL PROPERTY RIGHTS BY THE LICENSEE, IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY 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. This 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 a license term set forth in the Agreement (“Subscription License Term”). If the Subscription License and thus the Agreement is not terminated at the latest two (2) months prior to the expiration of a Subscription License Term, the Subscription License shall automatically renew to another Subscription License Term. Either Party may also terminate the Agreement in accordance with Section 10.3 below.
10.2 Perpetual License. This Section 10.2 shall apply only if the Parties have agreed on Perpetual License. This Agreement shall enter into force on the Effective Date and shall remain in force until terminated in accordance with Section 10.3 below.
10.3 Either Party may terminate the Agreement with immediate effect by notice in writing in the event (i) the other Party materially breaches any of its obligations, unless the breach is cured within a fourteen (14) day period following the notice, 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 terminate the use of the Software 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 due to Rightware even if it discontinues the use of the Software as specified above.
10.4 Upon termination of the Agreement, the Licensee shall on the date of termination: (i) cease to use the Software, (ii) upon instructions and option of Rightware either return or destroy all tangible copies of the Software, Documentation and Rightware’s Confidential Information together with all reproduction and modifications thereof, and (iii) give Rightware a written guarantee that the Licensee has complied with all of its obligations under this Section. This Section 10 shall survive the expiration or termination of the Agreement. Notwithstanding the aforesaid, despite of the termination of the Agreement, the Licensee shall have the right to sell or otherwise distribute the Devices during the term of the Agreement, provided that the Licensee continues to pay the Royalty Fees in accordance with the Agreement.
10.5 Notwithstanding anything to the contrary contained herein, the Sections: 1, 3, 5, 6, 7, 9, 10 and 11 will survive any termination or expiration of the Agreement.
11 MISCELLANEOUS¶
11.1 No delay by either Party in enforcing the provisions of the Agreement shall prejudice or restrict its rights nor shall any waiver of rights operate as a waiver of any subsequent breach.
11.2 If any 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.
11.3 Neither Party may assign its rights or obligations under the Agreement to a third party without the written consent of the other Party; except that either Party may assign this Agreement to an acquirer of or successor to substantially all of its business assets related to the Agreement without requiring the consent of the other Party.
11.4 Unless otherwise agreed, both Parties may advertise and otherwise publicly indicate that they have a commercial relationship relating to the Software without disclosing the details thereof. Either Party may withdraw such right in writing at any time.
11.5 The Agreement is the Parties’ entire agreement on this subject and merges and supersedes all related prior and contemporaneous communications and agreements. 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 upon the Licensee unless the Licensee informs Rightware in writing within thirty (30) days from Rightware’s notice that it does not accept such changes.
11.6 The Agreement is 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.
11.7 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 final arbitration in Helsinki, Finland, 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 licensed the Software from Rightware under the Terms and the Agreement;
WHEREAS, the Licensee with a valid license may acquire additional support and maintenance services from Rightware in accordance with the terms and conditions of this Maintenance Agreement by paying the annual Maintenance Fees. Maintenance Service for Licensees with a Subscription License is not subject to Annual Maintenance Fee;
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 unless such terms 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 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 the Terms.
1.3 “Training Services” shall mean the professional training given by Rightware on the usage of Software, 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 Annual Maintenance Fee set forth in the Price List, Rightware shall provide the Licensee with the following Services:
2.1 Support and Maintenance Services. Pursuant to the terms 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”):
timely email and phone advice and assistance during Finnish business hours on the use of the Software; and
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, it is stated here that the new Major Versions are subject to a new License Fee and terms as agreed between the Parties.
Providing the Licensee, upon separate Licensee request, the delivery of the latest Minor Version and Maintenance Update on the Licensee-specified development environment to which the Licensee has a valid Kanzi Platform Support License (“Kanzi Platform Support Maintenance”). Licensee may have to send their development environment to Rightware for this purpose as outlined above in Section 2.1 iii) of the Agreement.
Kanzi Platform Support Maintenance period is one year from the date of purchase. Should the Licensee let the Kanzi Platform Support Maintenance expire but then later on wants to renew it again, the Licensee is obligated to pay the Kanzi Platform Support Maintenance fee also for the time period when the Kanzi Platform Support Maintenance was not in force.
2.2 Design Services. Rightware will provide design services to the Licensee upon a separate request. Design Services provided might include 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 a separate hourly design service fee (“Design Service Fee”) set forth in the Price List.
2.3 Training Services. Rightware will provide Training Services to the Licensee upon a separate request. Training may include 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 Software, graphics programming with Software and application development with Software. Training Services are subject to a separate hourly design service fee (“Training Service Fee”) as set forth the in Price List.
2.4 Engineering Services. Rightware will provide engineering services to the Licensee upon a separate request. Engineering Services provided might include software design and development, special Software optimizations, Software extra features deliveries and general software consultation. Engineering services are subject to a separate hourly engineering service fee (“Engineering Service Fee”) set forth in the Price List.
3. FEES¶
3.1 The Maintenance Fees for providing the services under this Maintenance Agreement are set forth in the Price List.
3.2 Annual Maintenance Fee shall be invoiced from the Licensees with a Perpetual License. The Annual Maintenance Fees shall be invoiced in advance at the beginning of Initial Term and each subsequent Term. If a Licensee with a Perpetual License has let the Maintenance Agreement to expire and wishes to enter into a Maintenance Agreement again, such Licensee will have to pay the Maintenance Fee even for the time period(s) when the Maintenance Agreement has not been in force to make the Maintenance Agreement effective again.
3.3 Training Service Fees shall be invoiced in advance after the service has been ordered by the Licensee. The hourly Design Service Fee and Engineering Service Fee shall be invoiced monthly during each month Rightware is offering Design Service to the Licensee.
3.4 All the Maintenance Fees set forth in the Price List are subject to change. Rightware has a right to increase the prices in the beginning of a Term by informing the new fees to the Licensee in writing at least 30 days before the beginning of a new Term. If the Licensee does not want to be bound by the new fees the Licensee shall have the right to terminate this Maintenance Agreement before the beginning of the new Term.
4. TERM¶
4.1 This Maintenance Agreement shall enter in force when signed by authorized representatives of both Parties or when the terms are otherwise accepted and an order is placed by the Licensee and it remain in force for an initial term of twelve (12) months (“Initial Term”). After the Initial Term this Maintenance Agreement shall automatically renew to a new 12 months term (“Term”) unless terminated in writing at least thirty (30) days before the end of the current Initial Term or Term.
4.2 This Maintenance Agreement may be terminated by either Party at any time in the event of a material breach by the other Party that remains uncured after thirty (30) calendar days’ written notice to the defaulting Party thereof.
5. OTHER TERMS¶
5.1 Unless otherwise explicitly provided herein the Terms and the Agreement shall govern this Maintenance Agreement.
Version 1.9.2 24042019