Part 1 – General Terms
This International Program License and Support Agreement (the “IPLSA”) governs Orders of Programs and Support from Certent by Licensee. This IPLSA includes Part 1 – General Terms and
Part 2 – Country-unique Terms (if any).
The terms of Part 2 may replace or modify those of Part 1; only those terms in Part 2 for the country indicated as the address for Licensee in the applicable Order are applicable to that Order, which country shall be considered the country of acquisition of the Program license included in that Order. This IPLSA, applicable Orders and any attachments referenced in the foregoing are the complete agreement regarding the transaction by which Licensee acquires Programs and Support from Certent (collectively, the “Agreement”) and replace any prior oral or written communications between Licensee and Certent concerning Licensee’s use of Programs or Support. If there is a conflict, the applicable Order prevails over this IPLSA. Licensee and Certent agree to coordinate the administration of the Agreement within their respective Enterprises, which includes the set of legal entities that, by more than 50%, owns, are owned by, or are under common ownership with the party. Licensee is responsible for compliance with the Agreement for all sites within Licensee’s Enterprise.
″Authorized Use″ – the specified level at which Licensee is authorized to execute or run the Program as specified by Certent in the applicable Order.
″Certent” – Certent, Inc. or one of its subsidiaries.
″Certent Business Partners″ – organizations which have signed agreements with Certent to promote and market Programs and in certain situations provide tier 1 Support.
“Order(s)″ – quotations that have been submitted by Certent to Licensee, signed by Licensee, returned to Certent and accepted by Certent signing; and that set forth the Programs (indicating whether via an on-premises license or SaaS license), Authorized Use and Support to be provided to Licensee.
″Program(s)″ – the following for programs specified in an Order, including the original and all whole or partial copies: 1) machine-readable instructions and data, 2) components, files, and modules, 3) audio-visual content (such as images, text, recordings, or pictures), and 4) related licensed materials (such as keys and documentation).
“SaaS” –remote access and use through the Internet of the functionality of Programs; SaaS is not a Program, but may require Licensee to download enabling software to use it, which software shall be treated as a Program.
“Support” – maintenance and support services provided by Certent (or the applicable Certent Business Partner) in connection with Licensee’s use of Programs, as described in Section 4 below.
″Warranty Period″ – one year, starting on the date the applicable Order has been accepted by Certent.
Licensee and thereafter each of its participating Enterprise companies accept and agree to the Agreement by Licensee submitting to Certent a signed quotation that had been delivered to Licensee by Certent. The Agreement is effective on the date Certent accepts by signing the initial Order under the Agreement (the “Effective Date”) and remains in effect until Licensee or Certent terminates it in accordance with its provisions. A Program is subject to the Agreement when Certent accepts by signing Licensee’s Order for that Program.
Because the Agreement may apply to future Orders, Certent reserves the right to modify it by providing Licensee at least three months’ written notice and specifying the effective date of such changes. Changes are not retroactive; they apply, as of the specified effective date, only to new Orders and renewals. Licensee accepts changes by placing new Orders after the specified effective date or allowing transactions to renew after receipt of the change notice. Except as otherwise provided in the Agreement, all other changes must be in writing, signed by both parties.
Certent Business Partners are independent from Certent and unilaterally determine their prices and terms. Certent is not responsible for their actions, omissions, statements, or offerings.
The Programs are owned by Certent or a Certent supplier, and are copyrighted and licensed, not sold.
3.1 On-Premises Licenses
If the applicable Order specifies that Licensee is receiving an on-premises license, Certent grants Licensee a nonexclusive license to 1) use the Program up to the Authorized Use specified in the applicable Order, 2) make and install copies in connection with such Authorized Use, and 3) make a backup copy, all only during the fixed term for the applicable Order and all provided that:
- Licensee has lawfully obtained the Program and complies with the terms of the Agreement;
- the backup copy does not execute unless the backed-up Program cannot execute;
- Licensee reproduces all copyright notices and other legends of ownership on each copy, or partial copy, of the Program;
- Licensee ensures that anyone who uses the Program (accessed either locally or remotely) 1) does so only on Licensee’s behalf and 2) complies with the terms of the Agreement;
- Licensee does not 1) use, copy, or modify the Program, except as expressly permitted in the Agreement; 2) reverse assemble, reverse compile, otherwise translate, or reverse engineer the Program, except as expressly permitted by law without the possibility of contractual waiver; 3) use any of the Program’s components, files, modules, audio-visual content, or related licensed materials separately from that Program; or 4) sublicense, rent, lease, transfer or distribute the Program; and
- With the exception of certain Programs that Certent designates as platform or operating system specific, Licensee may use and install Programs in any commercially available national language for any platform or operating system supported by Certent up to the level of Licensee’s authorizations.
This license applies to each copy of the Program that Licensee makes.
Fixed term licenses have a term that begins on the date Licensee’s applicable Order is accepted by Certent and extends for the fixed term indicated in the applicable Order. Each fixed term license automatically renews for the same length of time as the ending fixed term at then current charges at the end of each fixed term, unless Licensee provides written notice of termination to Certent at least ninety (90) days prior to expiration of the then current fixed term. To reinstate any expired fixed term license, Licensee may not renew and must acquire a new fixed term license. Certent may pro-rate charges for fixed term licenses to align with Licensee’s Effective Date.
3.2 SaaS Licenses
If the applicable Order specifies that Licensee is receiving a SaaS license, Licensee may access and use the Program via SaaS, only to the extent of the Authorized Use specified in the applicable Order and only during the SaaS Subscription Period for the applicable Order, provided that Licensee:
- does not provide hosting or timesharing services for the Program to any third party;
- ensures that anyone who accesses or uses the Program with Licensee’s account credentials 1) does so only on Licensee’s behalf and 2) complies with the terms of the Agreement; Licensee is responsible for use of SaaS by anyone who so accesses the Program;
- does not 1) use the Program, except as expressly permitted in the Agreement; 2) reverse assemble, reverse compile, otherwise translate, or reverse engineer the Program, except as expressly permitted by law without the possibility of contractual waiver; 3) use any of the Program’s components, files, modules, audio-visual content, or related licensed materials separately from that Program; or 4) sublicense, rent, lease or otherwise transfer access to the Program; or
- does not use the Program for unlawful, obscene, offensive or fraudulent content or activity, in any jurisdiction for any user, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive or deceptive messages, viruses or harmful code, or violating third party rights.
If there is a complaint or notice of violation, use may be suspended until resolved, and terminated if not resolved promptly.
The SaaS Subscription Period begins on the date Licensee’s applicable Order is accepted by Certent and extends for the SaaS Subscription Period indicated in the applicable Order. Each SaaS Subscription Period automatically renews for the same length of time as the ending SaaS Subscription Period at the then current charges at the end of each SaaS Subscription Period, unless Licensee provides written notice of termination to Certent at least ninety (90) days prior to the expiration of the then current SaaS Subscription Period. To reinstate any expired SaaS Subscription Period, Licensee may not renew and must acquire a new SaaS license. Certent may pro-rate charges for SaaS licenses to align with Licensee’s Effective Date.
Certent may perform regularly scheduled maintenance during maintenance windows defined by Certent; other scheduled and non-scheduled down times may occur (e.g., due to events or causes beyond Certent’s control). Access to Programs via SaaS will not be available during these times.
Certent implements and maintains practices and procedures, which may be revised periodically, regarding the systems used to host and operate access to the Programs via SaaS. These practices and procedures are designed to reduce the vulnerability of Certent’s systems to accidental loss, unlawful intrusions, unauthorized access, disclosure or alteration or wrongful conduct that may interfere with, misappropriate, or otherwise damage the Licensee’s use. A description of the practices and procedures applicable to the SaaS, including applicable technical and operational measures, is available to Licensee upon request. Licensee is responsible for determining whether these practices and procedures are appropriate to meet Licensee’s requirements. By using the SaaS to access Programs, Licensee acknowledges its acceptance of the Certent practices and procedures and their adequacy for Licensee’s purposes. Certent will provide Licensee notice of any unauthorized third party access to Licensee’s content stored within Programs accessed via SaaS of which Certent becomes aware and will use reasonable efforts to remediate identified security vulnerabilities. If Licensee’s content is lost or damaged, Certent will assist Licensee in restoring it to the SaaS from the last available backup copy in compatible format.
Licensee acknowledges that Certent and its subsidiaries do not control the transfer of data over telecommunications facilities, including the Internet. Certent will only provide access and use of Licensee’s proprietary content to Certent employees and contractors as needed to deliver access and use of Programs via SaaS. Certent will not disclose Licensee’s proprietary content and will return (on request) or destroy it upon the expiration or cancellation of Licensee’s access to Programs via SaaS. Certent will provide Licensee notice of any unauthorized third party access to Licensee’s content of which Certent becomes aware and will use reasonable efforts to remediate identified security vulnerabilities.
Licensee is the sole controller for any personal data included in the content stored within Programs accessed via SaaS , and appoints Certent as a processor to process such personal data (as those terms are defined in applicable law). Certent will treat such content as confidential by not disclosing it other than to Certent employees and contractors for use only to the extent needed to deliver access to the Programs via the SaaS. Certent will return (on request) or destroy it upon the expiration or cancellation of access to the Programs via the SaaS or earlier upon Client’s request. Certent may charge for certain activities performed at Licensee’s request (such as delivering content in a specific format). Certent may use processors and subprocessors (including personnel and resources) in locations worldwide to deliver access to the Programs via the SaaS. Certent may transfer Client’s personal data across country borders, including outside the European Economic Area (EEA). A list of countries where content may be processed is available upon request, as is a list of subprocessors. Upon request by either party, Certent, Licensee or their affiliates will enter into additional agreements required by law for the protection of personal data included in content, such as the standard unmodified EU Model Clause agreements pursuant to EC Decision 2010/87/EU with optional clauses removed. The parties agree (and will procure that of their respective affiliates) that such additional agreements will be subject to the terms of the Agreement. Certent, its affiliates, and their third party suppliers may process, store and use account data wherever they do business to enable product features, administer use, personalize experience, and otherwise support or improve use of the Programs accessed via SaaS. Account data is all information (which may include personal data) about Licensee or its users provided to or collected by Certent (including through tracking and other technologies, such as cookies).
Certent may modify a Program being accessed via SaaS during the SaaS Subscription Period, without degrading its functionality or security features; any change that affects the commercial terms (e.g., charges) will not be effective until the next agreed renewal or extension of the SaaS Subscription Period. During a SaaS Subscription Period, Licensee may increase Licensee’s subscribed level, but may only decrease the subscribed level at the end of a Subscription Period when renewing. During a SaaS Subscription Period, Support is available only for the currently supported versions of the Programs accessed via SaaS.
Certent may withdraw access to a Program or Support (collectively “Options”) on 12 months’ written notice to all then current licensees by published announcement, letter, or e-mail. If Certent withdraws an Option, Licensee understands that as of the effective date of such withdrawal, Licensee may not, without Certent’s written consent, renew or purchase that Option, or increase its level of use beyond the authorizations already acquired, Licensee may continue to use/receive that Option until the end of the then current fixed term or SaaS Subscription Period, as applicable.
Support from Certent includes (a) code corrections: code to correct reported, substantial deviations from the Program’s then applicable specifications; (b) fixes: restrictions or known workarounds for reported problems; and (c) updates: periodic releases of collections of code corrections, fixes, functional enhancements and new versions and releases to the Program and documentation Certent makes generally available. When Licensee receives a code correction, fix or update, Licensee accepts any additional or different terms that are applicable to such code correction, fix or update. If no additional or different terms are provided, then the code correction, fix or update is subject solely to the Agreement. If a Program is replaced by an update, Licensee agrees to promptly discontinue use of the replaced Program.
Tier 1 Support to Licensee includes (i) training Licensee on how to access and use the Programs; (ii) setting-up Licensee to be able to access and use the Programs without assistance from Certent; (iii) providing a reasonable amount of remote assistance via telephone or electronically for Licensee’s routine, short duration installation and usage (how-to) questions when answers to those questions are available in associated documentation applicable to the Programs made available by Certent (“Documentation”); (iv) receiving the initial call from Licensee concerning an alleged failure of the Programs to materially function in accordance with its Documentation (an “Error”); (v) to the extent a correction to any such alleged Error is known or in the Documentation, providing Licensee with such correction; and (vi) if a correction is not known, creating a report in Certent’s call management system relating to any such initial call from Licensee and alleged Error. If Licensee has obtained a Program from a Certent Business Partner and if Certent, not that Certent Business Partner, provides Licensee with the tier 1 Support described in this paragraph during the first year of Support, that Certent Business Partner will invoice Licensee directly for that first year support and Certent will invoice Licensee directly for all subsequent years.
If the applicable Order includes Support, Support will be provided with each Program licensed, for the period that begins on the date the applicable Order is accepted by Certent and ends on the last day of the corresponding month in the following year. The term for Support automatically renews at then current charges, unless Licensee provides at least ninety (90) days written notice of termination prior to expiration of the then current term. Certent may pro-rate charges for Support to align with Licensee’s Effective Date. If Licensee terminates Support, Certent does not issue a credit or refund for the unused Support term.
Support does not include assistance for 1) the design and development of applications, 2) Licensee’s use of Programs in other than their specified operating environment or 3) failures caused by products for which Certent is not responsible under the Agreement. Support for a particular version or release of a Program is available only until Certent withdraws Support for that Program’s version or release. When Support is withdrawn, Licensee must upgrade to a supported version or release of the Program to continue to receive Support.
Licensee agrees that when Licensee acquires Support for a Program:
- Licensee will acquire Support at the same level of use as that at which the Program it is authorized; partial coverage for a Program is not offered;
- Licensee is responsible for the results obtained from the use of the Support;
- Licensee will, at Certent’s request, allow Certent to remotely access Licensee’s system to assist Licensee in isolating the software problem cause;
- Licensee remains responsible for adequately protecting Licensee’s system and all data contained in it whenever Certent remotely accesses it with Licensee’s permission to assist Licensee in isolating the software problem cause;
- Licensee will provide sufficient, free, and safe access to Licensee facilities for Certent to fulfill its obligations; and
- Licensee will not assign, or otherwise transfer, Licensee’s rights to Support.
If Licensee elects to continue Support for a Program at a designated Licensee site, Licensee must maintain Support for all uses and installations of the Program at that site.
If Licensee requests to renew expiring Support at a lesser quantity of Program uses and installations than the expiring quantity, Licensee must provide a report that verifies current Program usage and installation, and may be required to provide other compliance verification information.
Licensee shall not use Support benefits for Programs for which Licensee has not fully paid for Support.
Charges and Payments
Charges are based on Authorized Use obtained, which is specified in the applicable Order. If Licensee wishes to increase its Authorized Use, Licensee must notify Certent in advance and pay any applicable charges.
Charges for each Program (whether for fixed period or for SaaS Subscription Period) and for each Support period are invoiced in advance. Certent may increase these charges without notice. An increase will not apply to Licensee if Certent receives Licensee’s applicable Order before the effective date of the increase. Licensee receives the benefit of a decrease in these charges for amounts which become due on or after the effective date of the decrease.
Licensee agrees to pay all applicable charges specified by Certent, charges for use in excess of authorizations, any customs or other duty, tax (including, good and services tax, retail sales tax, value-added, use or withholding taxes), levy, or fee imposed by any authority resulting from Licensee’s acquisitions under the Agreement, and any late payment fees.
Amounts are due upon receipt of the invoice and payable within 30 days of the invoice date. All payments must be in US dollars. Prepaid services must be used within the applicable period.
Certent does not give credits or refunds for any prepaid, one-time charges, or other charges already due or paid.
Licensee is responsible to pay communications charges associated with accessing the Programs via SaaS and Support.
If any authority imposes on the Program or Support a duty, tax (including, good and services tax, retail sales tax, value-added, use or withholding taxes), levy, or fee, excluding those based on Certent’s net income, then Licensee agrees to pay that amount, as specified in an invoice, or supply exemption documentation. Licensee is responsible for any personal property taxes for the Program from the date that Licensee obtains it. If any authority imposes a customs duty, tax, levy, or fee for the import into or the export, transfer, access, or use of the Program outside the country of acquisition of the Program license, then Licensee agrees that it is responsible for, and will pay, any amount imposed.
Licensee agrees to: i) pay withholding tax directly to the appropriate government entity where required by law; ii) furnish a tax certificate evidencing such payment to Certent iii) pay Certent only the net proceeds after tax; and iv) fully cooperate with Certent in seeking a waiver or reduction of such taxes and promptly complete and file all relevant documents.
Term and Termination
The Agreement is effective until terminated. Either party may terminate the Agreement if the other does not comply with any of its terms, provided the one not complying is given written notice and reasonable time to comply.
If Licensee acquired or renewed access to a Program via SaaS, a fixed term license, or Support prior to the notice of termination, Certent may continue to provide such access, license or Support to allow Licensee to use the Program and Support for the remainder of the current term(s).
Licensee will be considered to have terminated the Agreement if neither it nor any of its participating Enterprise companies have an Order covering a Program or Support in effect.
Upon termination of the Agreement, Licensee agrees to promptly discontinue use of all Programs and destroy all of Licensee’s copies of a Program, if any. Any terms that by their nature extend beyond termination remain in effect until fulfilled, and apply to respective successors and assignees.
Warranty, Exclusions and Indemnity
8.1 Limited Warranty
Unless Certent specifies otherwise, the following warranties apply only in the country of acquisition of the Program license.
Certent warrants that during the Warranty Period the Program, when used in its specified operating environment if use is on-premises or when accessed via SaaS, will conform to its specifications. The Program’s specifications, and specified operating environment information, can be found in documentation accompanying the Program (such as a read-me file) or other information published by Certent (such as an announcement letter). Licensee agrees that such documentation and other Program content may be supplied only in the English language, unless otherwise required by local law without the possibility of contractual waiver or limitation. This warranty applies only to the unmodified portion of the Program.
If the Program does not function as warranted during the Warranty Period and the problem cannot be resolved within a reasonable time by Certent, and if Licensee has an on-premises license, Licensee may return the Program to the party (either Certent or the Certent Business Partner) from whom Licensee obtained it and receive a prorated refund of the amount Licensee paid; Licensee should contact the party from whom Licensee obtained the Program for instructions on how to obtain the refund. After returning the Program, Licensee’s Program license terminates.
If the Program does not function as warranted during the Warranty Period and the problem cannot be resolved within a reasonable time by Certent, and if Licensee has a SaaS license, Licensee may notify Certent that Licensee will cease accessing and using the Program and Licensee will then receive a prorated refund of the amount Licensee paid. After providing such notification, Licensee’s SaaS license terminates.
Certent warrants it provides Support using reasonable care and skill. If the Support does not meet this warranty, and Certent is unable to make it do so within a reasonable time, upon Licensee’s request, Certent will give Licensee a prorated refund of amounts prepaid by Licensee for the nonconforming Support, and Licensee’s right to use the Support, as applicable, will terminate.
Certent does not warrant uninterrupted or error-free operation of a Program or that Certent will correct all defects or prevent third party disruptions or unauthorized third party access to a Program. These warranties are the exclusive warranties from Certent and replace all other warranties, including the implied warranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose. Certent warranties will not apply if there has been misuse, accident, modification, unsuitable physical or operating environment, operation in other than the specified operating environment, failure caused by a product for which Certent is not responsible, damage not caused by Certent, failure to comply with instructions provided by Certent, or if otherwise stated in the applicable Order.
THESE WARRANTIES ARE LICENSEE’S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
THESE WARRANTIES GIVE LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
THE WARRANTIES IN THIS SECTION 8 (WARRANTY AND EXCLUSIONS) ARE PROVIDED SOLELY BY CERTENT. THE DISCLAIMERS IN THIS SUBSECTION 8.2 (EXCLUSIONS), HOWEVER, ALSO APPLY TO CERTENT’S SUPPLIERS OF THIRD PARTY CODE. THOSE SUPPLIERS PROVIDE SUCH CODE WITHOUT WARRANTIES OR CONDITION OF ANY KIND. THIS PARAGRAPH DOES NOT NULLIFY CERTENT’S WARRANTY OBLIGATIONS UNDER THE AGREEMENT.
If a third party asserts a claim against Licensee that a Program acquired under the Agreement infringes a patent or copyright, Certent will defend Licensee against that claim and pay amounts finally awarded by a court against Licensee or included in a settlement approved by Certent, provided that Licensee promptly (i) notifies Certent in writing of the claim, (ii) supplies information requested by Certent, and (iii) allows Certent to control, and reasonably cooperates in, the defense and settlement, including mitigation efforts.
Certent has no responsibility for claims based, in whole or part, items not provided by Certent, or any violation of law or third party rights caused by Licensee’s content, materials, designs, specifications, or use of a non-current version or release of a Program when an infringement claim could have been avoided by using a current version or release.
Confidential Information, Licensee Data, Databases, Content and Contact Information
Parties will not disclose confidential information without a separate, signed confidentiality agreement. If confidential information is exchanged, the confidentiality agreement is incorporated into, and subject to, the Agreement.
To assist Licensee in isolating the cause of a problem with the Program, Certent may request that Licensee 1) allow Certent to remotely access Licensee’s system or 2) send Licensee information or system data to Certent. However, Certent is not obligated to provide such assistance unless Certent and Licensee enter a separate written agreement under which Certent agrees to provide to Licensee that type of assistance, which is beyond Certent’s warranty and Support obligations in the Agreement. Certent uses information about errors and problems to improve its products and services, and assist with its provision of related support offerings. For these purposes, Certent may use Certent entities and subcontractors (including in one or more countries other than the one in which Licensee is located), and Licensee authorizes Certent to do so.
Licensee remains responsible for 1) any data and the content of any database Licensee makes available to Certent, 2) the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data (including any personally-identifiable data), and 3) backup and recovery of any database and any stored data. Licensee will not send or provide Certent access to any personally-identifiable information, whether in data or any other form, and will be responsible for reasonable costs and other amounts that Certent may incur relating to any such information mistakenly provided to Certent or the loss or disclosure of such information by Certent, including those arising out of any third party claims.
Licensee is responsible for obtaining all necessary permissions to use, provide, store and process content and grants Certent permission to do the same. Some of Licensee’s content may be subject to governmental regulation or may require security measures beyond those specified by Certent for an offering. Licensee will not input or provide such content unless Certent has first agreed in writing to implement additional required security measures.
Certent and its subcontractors may process the business contact information of Licensee, its employees and contractors worldwide for our business relationship, and Licensee has obtained the necessary consents. Certent will comply with requests to access, update, or delete such contact information. Certent may use personnel and resources in locations worldwide and third party suppliers for the delivery of products and services.
Limitation of Liability
The limitations and exclusions in this Section 10 (Limitation of Liability) apply to the full extent they are not prohibited by applicable law without the possibility of contractual waiver.
10.1 Items for Which Certent May Be Liable
Circumstances may arise where, because of a default on Certent’s part or other liability, Licensee is entitled to recover damages from Certent. Regardless of the basis on which Licensee is entitled to claim damages from Certent (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), Certent’s entire liability for all claims in the aggregate arising from or related to each Program, Support or otherwise arising under the Agreement will not exceed the amount of any 1) damages for bodily injury (including death) and damage to real property and tangible personal property and 2) other actual direct damages up to the charges Licensee paid for the Program (if the Program is subject to recurring charges, up to twelve months’ charges) or Support (up to twelve months’ charges) that is the subject of the claim.
This limit also applies to any of Certent’s subsidiaries, Program developers and suppliers. It is the maximum for which Certent and its Program developers and suppliers are collectively responsible.
The following amounts, if a party is legally liable for them, are not subject to the above cap: i) third party payments referred in the indemnity of Section 8.3; and ii) damages that cannot be limited under applicable law.
10.2 Items for Which Certent Is Not Liable
UNDER NO CIRCUMSTANCES IS CERTENT, ITS PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
- LOSS OF, OR DAMAGE TO, DATA;
- SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR
- LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
The rights and obligations set forth in this Section 11 remain in effect during the period the Program is licensed to Licensee, and for two years thereafter.
11.1 Verification Process
Licensee agrees to create, retain, and provide to Certent and its auditors accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that Licensee’s use of all Programs and Support is in compliance with the Agreement, including, without limitation, all of Certent’s applicable licensing and pricing qualification terms. Licensee is responsible for 1) ensuring that it does not exceed its Authorized Use, and 2) remaining in compliance with the Agreement.
Upon reasonable notice, Certent may verify Licensee’s compliance with the Agreement at all sites and for all environments in which Licensee uses (for any purpose) Programs subject to the Agreement. Such verification will be conducted in a manner that minimizes disruption to Licensee’s business, and may be conducted on Licensee’s premises, during normal business hours. Certent may use an independent auditor to assist with such verification, provided Certent has a written confidentiality agreement in place with such auditor.
Certent will notify Licensee in writing if any such verification indicates that Licensee has used any Program or Support in excess of its Authorized Use or is otherwise not in compliance with the Agreement. Licensee agrees to promptly pay directly to Certent the charges that Certent specifies in an invoice for 1) any such excess use, 2) Support for such excess use for the lesser of the duration of such excess use or two years, and 3) any additional charges and other liabilities determined as a result of such verification. If Licensee’s records are inadequate to determine charges, Certent’s charges for any excess usage will include two years of Support.
Third Party Notices
The Program may include third party code that Certent, not the third party, licenses to Licensee under the Agreement. Notices, if any, for the third party code (″Third Party Notices″) are included for Licensee’s information only. These notices can be found in the Program’s NOTICES file(s). Information on how to obtain source code for certain third party code can be found in the Third Party Notices. If in the Third Party Notices Certent identifies third party code as ″Modifiable Third Party Code,″ Certent authorizes Licensee to 1) modify the Modifiable Third Party Code and 2) reverse engineer the Program modules that directly interface with the Modifiable Third Party Code provided that it is only for the purpose of debugging Licensee’s modifications to such third party code. Certent’s obligations, if any, apply only to the unmodified Program.
- Nothing in the Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
- For Programs Certent provides to Licensee in tangible form, Certent fulfills its shipping and delivery obligations upon the delivery of such Programs to the Certent-designated carrier, unless otherwise agreed to in writing by Licensee and Certent.
- If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement remain in full force and effect.
- Licensee agrees to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users.
- Licensee authorizes Certent (and its successors and assigns, contractors and Certent Business Partners) to store and use Licensee’s business contact information wherever they do business, in connection with Certent products and services, or in furtherance of Certent’s business relationship with Licensee.
- Each party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under the Agreement. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relating to the Agreement.
- Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: 1) neither party will bring a legal action, regardless of form, for any claim arising out of or related to the Agreement more than two years after the cause of action arose; and 2) upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse.
- Neither party is responsible for failure to fulfill its non-monetary obligations due to causes beyond its control. Each party will allow the other reasonable opportunity to comply before it claims the other has not met its obligations. Where approval, acceptance, consent, access, cooperation or similar action by either party is required, such action will not be unreasonably delayed or withheld.
- Neither Licensee nor Certent is responsible for failure to fulfill any obligations due to causes beyond its control.
- No right or cause of action for any third party is created by the Agreement, nor is Certent responsible for any third party claims against Licensee, except as permitted in Subsection 10.1 (Items for Which Certent May Be Liable) above for bodily injury (including death) or damage to real or tangible personal property for which Certent is legally liable to that third party.
- In entering into the Agreement, neither party is relying on any representation not specified in the Agreement, including but not limited to any representation concerning: 1) the performance or function of the Program, other than as expressly warranted in Section 8 (Warranty and Exclusions) above; 2) the experiences or recommendations of other parties; or 3) any results or savings that Licensee may achieve.
- Certent Business Partners remain independent and separate from Certent. Certent is not responsible for the actions or statements of Certent Business Partners or obligations they have to Licensee.
- The license and intellectual property indemnification terms of Licensee’s other agreements with Certent do not apply to Program licenses granted under the Agreement.
- Certent is an independent contractor, not Licensee’s agent, joint venturer, partner, or fiduciary, and does not undertake to perform any of Licensee’s regulatory obligations, or assume any responsibility for Licensee’s business or operations. Each party determines the assignment of its personnel and contractors, their direction, control, and compensation.
- Neither party may assign the Agreement, in whole or in part, without the prior written consent of the other. Programs are for use within Licensee’s Enterprise only, and may not be assigned, resold, rented, leased, or transferred to third parties. Any attempt to do so is void. Assignment of Certent rights to receive payments and by Certent in conjunction with the sale of the portion of Certent’s business that includes the product or service is not restricted.
- All notices under the Agreement must be in writing and sent to the address below, unless a party designates in writing a different address. The parties consent to use electronic means and facsimile transmissions for communications as a signed writing. Any reproduction of the Agreement made by reliable means is considered an original. The Agreement supersedes any course of dealing, discussions or representations between the parties.
- Geographic Scope and Governing Law
14.1 Governing Law
Both parties agree to the application of the laws of the country of acquisition of the Program license to govern, interpret, and enforce all of Licensee’s and Certent’s respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of the Agreement, without regard to conflict of law principles.
The United Nations Convention on Contracts for the International Sale of Goods does not apply.
All rights, duties, and obligations are subject to the courts of the country of acquisition of the Program license.
Part 2 – Country-unique Terms
For licenses granted in the countries specified below, the following terms replace or modify the referenced terms in Part 1. All terms in Part 1 that are not changed by these amendments remain unchanged and in effect. This Part 2 is organized as follows:
- Multiple country amendments to Part 1, Section 14 (Governing Law and Jurisdiction);
- Americas country amendments to other Agreement terms;
- Asia Pacific country amendments to other Agreement terms; and
- Europe, Middle East, and Africa country amendments to other Agreement terms.
MULTIPLE COUNTRY AMENDMENTS TO PART 1, SECTION 14 (GOVERNING LAW AND JURISDICTION)
14.1 Governing Law
The phrase ″the laws of the country of acquisition of the Program license″ in the first paragraph of 14.1 Governing Law is replaced by the following phrases in the countries below:
- In Canada: the laws in the Province of Ontario;
- in Mexico: the federal laws of the Republic of Mexico;
- in the United States, Anguilla, Antigua/Barbuda, Aruba, British Virgin Islands, Cayman Islands, Dominica, Grenada, Guyana, Saint Kitts and Nevis, Saint Lucia, Saint Maarten, and Saint Vincent and the Grenadines: the laws of the State of New York, United States;
- in Venezuela: the laws of the Bolivarian Republic of Venezuela;
- in Cambodia and Laos: the laws of the State of New York, United States;
- in Australia: the laws of the State or Territory in which the transaction is performed;
- in Hong Kong SAR and Macau SAR: the laws of Hong Kong Special Administrative Region (″SAR″);
- in Taiwan: the laws of Taiwan;
EUROPE, MIDDLE EAST, AND AFRICA
- in Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Poland, Romania, Russia, Serbia, Slovakia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan: the laws of Austria;
- in Algeria, Andorra, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis and Futuna: the laws of France;
- in Estonia, Latvia, and Lithuania: the laws of Finland;
- in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe: the laws of England; and
- in South Africa, Namibia, Lesotho, and Swaziland: the laws of the Republic of South Africa.
The following paragraph pertains to jurisdiction and replaces Subsection 14.2 (Jurisdiction) as it applies for those countries identified below:
All rights, duties, and obligations are subject to the courts of the country of acquisition of the Program license except that in the countries identified below all disputes arising out of or related to the Agreement, including summary proceedings, will be brought before and subject to the exclusive jurisdiction of the following courts of competent jurisdiction:
- In Argentina: the Ordinary Commercial Court of the city of Buenos Aires;
- in Brazil: the court of Rio de Janeiro, RJ;
- in Chile: the Civil Courts of Justice of Santiago;
- in Ecuador: the civil judges of Quito for executory or summary proceedings (as applicable);
- in Mexico: the courts located in Mexico City, Federal District;
- in Peru: the judges and tribunals of the judicial district of Lima, Cercado;
- in Uruguay: the courts of the city of Montevideo;
- in Venezuela: the courts of the metropolitan area of the city of Caracas;
EUROPE, MIDDLE EAST, AND AFRICA
- in Austria: the court of law in Vienna, Austria (Inner-City);
- in Algeria, Andorra, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, France, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Monaco, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis and Futuna: the Commercial Court of Paris;
- in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe: the English courts;
- in South Africa, Namibia, Lesotho, and Swaziland: the High Court in Johannesburg;
- in Greece: the competent court of Athens;
- in Israel: the courts of Tel Aviv-Jaffa;
- in Italy: the courts of Milan;
- in Portugal: the courts of Lisbon;
- in Spain: the courts of Madrid; and
- in Turkey: the Istanbul Central Courts and Execution Directorates of Istanbul, the Republic of Turkey.
The following paragraph is added as a new Subsection 14.3 (Arbitration) as it applies for those countries identified below. The provisions of this Subsection 14.3 prevail over those of Subsection 14.2 (Jurisdiction) to the extent permitted by the applicable governing law and rules of procedure:
- In Cambodia, India, Laos, Philippines, and Vietnam: Disputes arising out of or in connection with the Agreement will be finally settled by arbitration which will be held in Singapore in accordance with the Arbitration Rules of Singapore International Arbitration Center (″SIAC Rules″) then in effect. The arbitration award will be final and binding for the parties without appeal and will be in writing and set forth the findings of fact and the conclusions of law.The number of arbitrators will be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties will appoint a third arbitrator who will act as chairman of the proceedings. Vacancies in the post of chairman will be filled by the president of the SIAC. Other vacancies will be filled by the respective nominating party. Proceedings will continue from the stage they were at when the vacancy occurred.If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator will be the sole arbitrator, provided that the arbitrator was validly and properly appointed.All proceedings will be conducted, including all documents presented in such proceedings, in the English language. The English language version of the Agreement prevails over any other language version.
- In the People’s Republic of China: In case no settlement can be reached, the disputes will be submitted to China International Economic and Trade Arbitration Commission for arbitration according to the then effective rules of the said Arbitration Commission. The arbitration will take place in Beijing and be conducted in Chinese. The arbitration award will be final and binding on both parties. During the course of arbitration, the Agreement will continue to be performed except for the part which the parties are disputing and which is undergoing arbitration.
- In Indonesia: Each party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under the Agreement. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relating to the Agreement. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation, i) neither party will bring a legal action, regardless of form, arising out of or related to the Agreement or any transaction under it more than two years after the cause of action arose; and ii) after such time limit, any legal action arising out of the Agreement or any transaction under it and all respective rights related to any such action lapse.Disputes arising out of or in connection with the Agreement shall be finally settled by arbitration that shall be held in Jakarta, Indonesia in accordance with the rules of Board of the Indonesian National Board of Arbitration (Badan Arbitrase Nasional Indonesia or ″BANI″) then in effect. The arbitration award shall be final and binding for the parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law.The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies in the post of chairman shall be filled by the chairman of the BANI. Other vacancies shall be filled by the respective nominating party. Proceedings shall continue from the stage they were at when the vacancy occurred.If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed.All proceedings shall be conducted, including all documents presented in such proceedings, in the English and/or Indonesian language.
EUROPE, MIDDLE EAST, AND AFRICA
- In Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Poland, Romania, Russia, Serbia, Slovakia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan: All disputes arising out of the Agreement or related to its violation, termination or nullity will be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Center of the Federal Economic Chamber in Vienna (Vienna Rules) by three arbitrators appointed in accordance with these rules. The arbitration will be held in Vienna, Austria, and the official language of the proceedings will be English. The decision of the arbitrators will be final and binding upon both parties. Therefore, pursuant to paragraph 598 (2) of the Austrian Code of Civil Procedure, the parties expressly waive the application of paragraph 595 (1) figure 7 of the Code. Certent may, however, institute proceedings in a competent court in the country of installation.
- In Estonia, Latvia, and Lithuania: All disputes arising in connection with the Agreement will be finally settled in arbitration that will be held in Helsinki, Finland in accordance with the arbitration laws of Finland then in effect. Each party will appoint one arbitrator. The arbitrators will then jointly appoint the chairman. If arbitrators cannot agree on the chairman, then the Central Chamber of Commerce in Helsinki will appoint the chairman.
AMERICAS COUNTRY AMENDMENTS TO OTHER AGREEMENT TERMS
10.1 Items for Which Certent May be Liable
The following replaces Item 1 in the first paragraph of this Subsection 10.1 (Items for Which Certent May be Liable):
1) damages for bodily injury (including death) and physical harm to real property and tangible personal property caused by Certent’s negligence; and
The following replaces Item 13.d:
- Licensee agrees to comply with all applicable export and import laws and regulations, including those of that apply to goods of United States origin and that prohibit or limit export for certain uses or to certain users.
The following replaces Item 13.j:
- No right or cause of action for any third party is created by the Agreement or any transaction under it, nor is Certent responsible for any third party claims against Licensee except as permitted by the Limitation of Liability section above for bodily injury (including death) or physical harm to real or tangible personal property caused by Certent’s negligence for which Certent is legally liable to that third party.
The following is added as Item 13.q:
- For purposes of this Item 13.q, ″Personal Data″ refers to information relating to an identified or identifiable individual made available by one of the parties, its personnel or any other individual to the other in connection with the Agreement. The following provisions apply in the event that one party makes Personal Data available to the other:
- Each party is responsible for complying with any obligations applying to it under applicable Canadian data privacy laws and regulations (″Laws″).
- Neither party will request Personal Data beyond what is necessary to fulfill the purpose(s) for which it is requested. The purpose(s) for requesting Personal Data must be reasonable. Each party will agree in advance as to the type of Personal Data that is required to be made
- Security Safeguards
- Each party acknowledges that it is solely responsible for determining and communicating to the other the appropriate technological, physical and organizational security measures required to protect Personal
- Each party will ensure that Personal Data is protected in accordance with the security safeguards communicated and agreed to by the
- Each party will ensure that any third party to whom Personal Data is transferred is bound by the applicable terms of this
- Additional or different services required to comply with the Laws will be deemed a request for new services.
Each party agrees that Personal Data will only be used, accessed, managed, transferred, disclosed to third parties or otherwise processed to fulfill the purpose(s) for which it was made available.
- Access Requests
- Each party agrees to reasonably cooperate with the other in connection with requests to access or amend Personal
- Each party agrees to reimburse the other for any reasonable charges incurred in providing each other assistance.
- Each party agrees to amend Personal Data only upon receiving instructions to do so from the other party or its
Each party will promptly return to the other or destroy all Personal Data that is no longer necessary to fulfill the purpose(s) for which it was made available, unless otherwise instructed by the other or its personnel or required by law.
- Public Bodies Who Are Subject to Public Sector Privacy Legislation
For Licensees who are public bodies subject to public sector privacy legislation, this Item 13.q applies only to Personal Data made available to Licensee in connection with the Agreement, and the obligations in this section apply only to Licensee, except that: 1) section (2)(a) applies only to Certent; 2) sections (1)(a) and (4)(a) apply to both parties; and 3) section (4)(b) and the last sentence in (1)(b) do not apply.
Add, where required:
In Province of Quebec add: Both parties agree to write this document in English. Les parties ont convenu de rédiger le présent document en langue anglaise.
- Limitation of Liability
The following is added to the end of this Section 10 (Limitation of Liability):
Except as expressly required by law without the possibility of contractual waiver, Licensee and Certent intend that the limitation of liability in this Limitation of Liability section applies to damages caused by all types of claims and causes of action. If any limitation on or exclusion from liability in this section is held by a court of competent jurisdiction to be unenforceable with respect to a particular claim or cause of action, the parties intend that it nonetheless apply to the maximum extent permitted by applicable law to all other claims and causes of action.
10.1 Items for Which Certent May be Liable
The following is added at the end of this Subsection 10.1:
In accordance with Article 1328 of the Peruvian Civil Code, the limitations and exclusions specified in this section will not apply to damages caused by Certent’s willful misconduct (″dolo″) or gross negligence (″culpa inexcusable″).
UNITED STATES OF AMERICA
The following is added at the end of this Section 6 (Taxes)
For Programs delivered electronically in the United States for which Licensee claims a state sales and use tax exemption, Licensee agrees not to receive any tangible personal property (e.g., media and publications) associated with the electronic program.
Licensee agrees to be responsible for any sales and use tax liabilities that may arise as a result of Licensee’s subsequent redistribution of Programs after delivery by Certent.
The following is added to Item 13.f:
Each party waives any right to a jury trial in any proceeding arising out of or related to the Agreement.
ASIA PACIFIC COUNTRY AMENDMENTS TO OTHER AGREEMENT TERMS
The following sentences replace the first two sentences of Section 5 (Taxes):
If any government or authority imposes a duty, tax (other than income tax), levy, or fee, on the Agreement or on the Program itself, that is not otherwise provided for in the amount payable, Licensee agrees to pay it when Certent invoices Licensee. If the rate of GST changes, Certent may adjust the charge or other amount payable to take into account that change from the date the change becomes effective.
8.1 Limited Warranty
The following is added to Subsection 8.1 (Limited Warranty):
The warranties specified this Section are in addition to any rights Licensee may have under the Competition and Consumer Act 2010 or other legislation and are only limited to the extent permitted by the applicable legislation.
10.1 Items for Which Certent May be Liable
The following is added to Subsection 10.1 (Items for Which Certent May be Liable):
Where Certent is in breach of a condition or warranty implied by the Competition and Consumer Act 2010, Certent’s liability is limited to the repair or replacement of the goods, or the supply of equivalent goods. Where that condition or warranty relates to right to sell, quiet possession or clear title, or the goods are of a kind ordinarily obtained for personal, domestic or household use or consumption, then none of the limitations in this paragraph apply.
HONG KONG SAR, MACAU SAR, AND TAIWAN
As applies to licenses obtained in Taiwan and the special administrative regions, phrases throughout the Agreement containing the word ″country″ (for example, ″the country of acquisition of the Program license″) are replaced with the following:
- In Hong Kong SAR: ″Hong Kong SAR″
- In Macau SAR: ″Macau SAR″ except in the Governing Law clause (Section 1)
- In Taiwan: ″″
10.1 Items for Which Certent May be Liable
The following replaces the terms of Items 1 and 2 of the first paragraph:
1) liability for bodily injury (including death) or damage to real property and tangible personal property will be limited to that caused by Certent’s negligence; and 2) as to any other actual damage arising in any situation involving nonperformance by Certent pursuant to, or in any way related to the subject of the Agreement, Certent’s liability will be limited to the charge paid by Licensee for the individual Program that is the subject of the claim.
The following replaces the terms of Item 13.g:
If no suit or other legal action is brought, within three years after the cause of action arose, in respect of any claim that either party may have against the other, the rights of the concerned party in respect of such claim will be forfeited and the other party will stand released from its obligations in respect of such claim.
3.8 Term and Termination
The following is added to the last paragraph:
Both parties waive the provision of article 1266 of the Indonesian Civil Code, to the extent the article provision requires such court decree for the termination of an agreement creating mutual obligations.
The following is inserted after Item 13.f:
Any doubts concerning the Agreement will be initially resolved between us in good faith and in accordance with the principle of mutual trust.
10.2 Items for Which Certent Is not Liable The word ″SPECIAL″ in Item 10.2b is deleted.
8.1 Limited Warranty
The following is added:
The warranties specified in this Section are in addition to any rights Licensee may have under the Consumer Guarantees Act 1993 or other legislation which cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply in respect of any goods which Certent provides, if Licensee requires the goods for the purposes of a business as defined in that Act.
10. Limitation of Liability
The following is added:
Where Programs are not obtained for the purposes of a business as defined in the Consumer Guarantees Act 1993, the limitations in this Section are subject to the limitations in that Act.
PEOPLE’S REPUBLIC OF CHINA
Charges and Payments
The following is added:
All banking charges incurred in the People’s Republic of China will be borne by Licensee and those incurred outside the People’s Republic of China will be borne by Certent.
10.2 Items for Which Certent Is not Liable
The following replaces the terms of Item 10.2b:
10.2b. special (including nominal and exemplary damages), moral, incidental, or indirect damages or for any economic consequential damages; or
10.2 Items for Which Certent Is not Liable
The words ″SPECIAL″ and ″ECONOMIC″ are deleted from Item 10.2b.
The following replaces the terms of Item 13.j:
Subject to the rights provided to Certent’s suppliers and Program developers as provided in Section 10 above (Limitation of Liability), a person who is not a party to the Agreement will have no right under the Contracts (Right of Third Parties) Act to enforce any of its terms.
8.1 Limited Warranty
The last paragraph is deleted.
10.1 Items for Which Certent May Be Liable
The following sentences are deleted:
This limit also applies to any of Certent’s subcontractors and Program developers. It is the maximum for which Certent and its subcontractors and Program developers are collectively responsible.
EUROPE, MIDDLE EAST, AFRICA (EMEA) COUNTRY AMENDMENTS TO OTHER AGREEMENT TERMS
EUROPEAN UNION MEMBER STATES
Warranty and Exclusions
The following is added to Section 8 (Warranty and Exclusion):
In the European Union (″EU″), consumers have legal rights under applicable national legislation governing the sale of consumer goods. Such rights are not affected by the provisions set out in this Section 8 (Warranty and Exclusions). The territorial scope of the Limited Warranty is worldwide.
EU MEMBER STATES AND THE COUNTRIES IDENTIFIED BELOW
Iceland, Liechtenstein, Norway, Switzerland, Turkey, and any other European country that has enacted local data privacy or protection legislation similar to the EU model.
The following replaces Item 13.e:
- Definitions – For the purposes of this Item 13.e, the following additional definitions apply:
- Business Contact Information – business-related contact information disclosed by Licensee to Certent, including names, job titles, business addresses, telephone numbers and email addresses of Licensee’s employees and contractors. For Austria, Italy and Switzerland, Business Contact Information also includes information about Licensee and its contractors as legal entities (for example, Licensee’s revenue data and other transactional information)
- Business Contact Personnel – Licensee employees and contractors to whom the Business Contact Information
- Data Protection Authority – the authority established by the Data Protection and Electronic Communications Legislation in the applicable country or, for non-EU countries, the authority responsible for supervising the protection of personal data in that country, or (for any of the foregoing) any duly appointed successor entity thereto.
- Data Protection & Electronic Communications Legislation – (i) the applicable local legislation and regulations in force implementing the requirements of EU Directive 95/46/EC (on the protection of individuals with regard to the processing of personal data and on the free movement of such data) and of EU Directive 2002/58/EC (concerning the processing of personal data and the protection of privacy in the electronic communications sector); or (ii) for non-EU countries, the legislation and/or regulations passed in the applicable country relating to the protection of personal data and the regulation of electronic communications involving personal data, including (for any of the foregoing) any statutory replacement or modification thereof.
- Certent Group – Certent, Inc. of Pleasanton, California, its subsidiaries, and their respective Business Partners and
- Licensee authorizes Certent:
- to process and use Business Contact Information within Certent Group in support of Licensee including the provision of support services, and for the purpose of furthering the business relationship between Licensee and Certent Group, including, without limitation, contacting Business Contact Personnel (by email or otherwise) and marketing Certent Group products and services (the ″Specified Purpose″); and
- to disclose Business Contact Information to other members of Certent Group in pursuit of the Specified Purpose
- Certent agrees that all Business Contact Information will be processed in accordance with the Data Protection & Electronic Communications Legislation and will be used only for the Specified
- To the extent required by the Data Protection & Electronic Communications Legislation, Licensee represents that (a) it has obtained (or will obtain) any consents from (and has issued (or will issue) any notices to) the Business Contact Personnel as are necessary in order to enable Certent Group to process and use the Business Contact Information for the Specified
- Licensee authorizes Certent to transfer Business Contact Information outside the European Economic Area, provided that the transfer is made on contractual terms approved by the Data Protection Authority or the transfer is otherwise permitted under the Data Protection & Electronic Communications
The following is deleted from the first paragraph:
MERCHANTABILITY, SATISFACTORY QUALITY
Limitation of Liability
The following is added:
The following limitations and exclusions of Certent’s liability do not apply for damages caused by gross negligence or willful misconduct.
10.1 Items for Which Certent May Be Liable
The following replaces the first sentence in the first paragraph:
Circumstances may arise where, because of a default by Certent in the performance of its obligations under the Agreement or other liability, Licensee is entitled to recover damages from Certent.
In the second sentence of the first paragraph, delete entirely the parenthetical phrase:
″(including fundamental breach, negligence, misrepresentation, or other contract or tort claim)″.
10.2 Items for Which Certent Is Not Liable
The following replaces Item 10.2b:
- indirect damages or consequential damages; or
BELGIUM, FRANCE, ITALY, AND LUXEMBOURG
Limitation of Liability
The following replaces the terms of Section 10 (Limitation of Liability) in its entirety:
Except as otherwise provided by mandatory law:
10.1 Items for Which Certent May Be Liable
Certent’s entire liability for all claims in the aggregate for any damages and losses that may arise as a consequence of the fulfillment of its obligations under or in connection with the Agreement or due to any other cause related to the Agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non-fulfillment of such obligations (if Certent is at fault) or of such cause, for a maximum amount equal to the charges (if the Program is subject to fixed term charges, up to twelve months’ charges) Licensee paid for the Program that has caused the damages.
The above limitation will not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which Certent is legally liable.
10.2 Items for Which Certent Is Not Liable
UNDER NO CIRCUMSTANCES IS Certent OR ANY OF ITS PROGRAM DEVELOPERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; AND / OR 3) LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES.
10.3 Suppliers and Program Developers
The limitation and exclusion of liability herein agreed applies not only to the activities performed by Certent but also to the activities performed by its suppliers and Program developers, and represents the maximum amount for which Certent as well as its suppliers and Program developers are collectively responsible.
8.1 Limited Warranty
The following is inserted at the beginning of Section 8.1:
The Warranty Period is twelve months from the date of delivery of the Program to the original Licensee.
Section 8.2 is deleted in its entirety and replaced with the following:
Section 8.1 defines Certent’s entire warranty obligations to Licensee except as otherwise required by applicable statutory law.
Limitation of Liability
The following replaces the Limitation of Liability section in its entirety:
- Certent will be liable without limit for 1) loss or damage caused by a breach of an express guarantee; 2) damages or losses resulting in bodily injury (including death); and 3) damages caused intentionally or by gross
- In the event of loss, damage and frustrated expenditures caused by slight negligence or in breach of essential contractual obligations, Certent will be liable, regardless of the basis on which Licensee is entitled to claim damages from Certent (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), per claim only up to the greater of 500,000 euro or the charges (if the Program is subject to fixed term charges, up to 12 months’ charges) Licensee paid for the Program that caused the loss or damage. A number of defaults which together result in, or contribute to, substantially the same loss or damage will be treated as one
- In the event of loss, damage and frustrated expenditures caused by slight negligence, Certent will not be liable for indirect or consequential damages, even if Certent was informed about the possibility of such loss or
- In case of delay on Certent’s part: 1) Certent will pay to Licensee an amount not exceeding the loss or damage caused by Certent’s delay and 2) Certent will be liable only in respect of the resulting damages that Licensee suffers, subject to the provisions of Items a and b
The following replaces the provisions of 13.g:
Any claims resulting from the Agreement are subject to a limitation period of three years, except as stated in Section 8.1 (Limited Warranty) of the Agreement.
The following replaces the provisions of 13.j:
No right or cause of action for any third party is created by the Agreement, nor is Certent responsible for any third party claims against Licensee, except (to the extent permitted in Section 10 (Limitation of Liability)) for: i) bodily injury (including death); or ii) damage to real or tangible personal property for which (in either case) Certent is legally liable to that third party.
The following paragraph is added:
Except as expressly provided in these terms and conditions, or Section 12 of the Sale of Goods Act 1893 as amended by the Sale of Goods and Supply of Services Act, 1980 (the ″1980 Act″), all conditions or warranties (express or implied, statutory or otherwise) are hereby excluded including, without limitation, any warranties implied by the Sale of Goods Act 1893 as amended by the 1980 Act (including, for the avoidance of doubt, Section 39 of the 1980 Act).
IRELAND AND UNITED KINGDOM
The following sentence is added:
Nothing in this paragraph shall have the effect of excluding or limiting liability for fraud.
10.1 Items for Which Certent May Be Liable
The following replaces the first paragraph of the Subsection:
For the purposes of this section, a ″Default″ means any act, statement, omission or negligence on the part of Certent in connection with, or in relation to, the subject matter of an Agreement in respect of which Certent is legally liable to Licensee, whether in contract or in tort. A number of Defaults which together result in, or contribute to, substantially the same loss or damage will be treated as one Default.
Circumstances may arise where, because of a Default by Certent in the performance of its obligations under the Agreement or other liability, Licensee is entitled to recover damages from Certent. Regardless of the basis on which Licensee is entitled to claim damages from Certent and except as expressly required by law without the possibility of contractual waiver, Certent’s entire liability for any one Default will not exceed the amount of any direct damages, to the extent actually suffered by Licensee as an immediate and direct consequence of the default, up to the greater of (1) 500,000 euro (or the equivalent in local currency) or (2) 125% of the charges (if the Program is subject to fixed term charges, up to 12 months’ charges) for the Program that is the subject of the claim. Notwithstanding the foregoing, the amount of any damages for bodily injury (including death) and damage to real property and tangible personal property for which Certent is legally liable is not subject to such limitation.
10.2 Items for Which Certent is Not Liable
The following replaces Items 10.2b and 10.2c:
- special, incidental, exemplary, or indirect damages or consequential damages; or
- wasted management time or lost profits, business, revenue, goodwill, or anticipated savings.