This Standard License Agreement sets forth the terms and conditions governing all purchases of License(s) to and use of Software owned and delivered by Highsoft AS, the company behind Highcharts.
By installing or using Software or any part thereof, Licensee agrees to be bound by this Standard License Agreement.
Agreement shall mean this document and the License Statement;
Affiliate shall mean any entity that directly, or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, shall mean direct or indirect ownership of, or control of, more than 50% of the voting interests of the subject;
Affiliate Fee shall mean the additional fee payable by Licensee to Highsoft for extending purchased License(s) to apply also to Licensee’s Affiliates, if Licensee so chooses pursuant to section 3.2.2;
Confidential Information shall mean any and all written, verbal, or demonstrated information of proprietary and/or confidential nature provided by one Party to the other in connection with this Agreement; Confidential information shall include, without limitation, information relating to technologies, finances and legal affairs which relate in any manner to a Party’s actual, or anticipated business whether obtained in tangible or intangible form, including oral or visual. Confidential Information shall not include A) Licensee’s name, logo, the existence of a contractual relationship between the Parties and the product licensed under this Agreement, or B) information that (i) is generally known to the public at the time of disclosure; (ii) is lawfully received or obtained by the receiving Party from a Third Party who has rightful possession of Confidential Information; (iii) becomes generally known to the public after the time of disclosure, but not as a result of disclosure by the receiving Party, or (iv) is already in the possession of the receiving Party prior to the signing of this Agreement;
Customer Installation shall mean any distribution of Licensed Software as an integral part of a Licensee Product through installation of such product on a server owned or operated by a Licensee customer pursuant to an OEM License granted according to section 4.4 below. One Customer Installation shall for the purposes of the Agreement be regarded as equal to one sale of a Licensee Product to a Licensee customer and the subsequent distribution of Licensed Software to License customer through installation of the Licensee Product, regardless of the number of users within the Licensee customers organization authorized to use the installed Licensee Product. The number of authorized Customer Installations is defined in the License Statement and is not subject to renewal, recurrence or re-use;
Customer Installation with Developer Rights shall mean a Customer Installation that is based on an OEM License authorizing the Licensee’s customer, after such installation, to customize Licensed Software for its own purposes;
Delivery Date shall mean the date Licensee is invoiced by Highsoft for the applicable Licensed Software;
Developer shall mean any unnamed person, whether an employee or subcontractor of Licensee, who will be simultaneously working with the API and/or source code of the Licensed Software. The number of Developers authorized to simultaneously work with the Licensed Software is defined in the License Statement;
Highcharts Advantage shall mean the maintenance and support services offered by Highsoft, as defined in section 5 below, which Licensee is entitled to receive for as long as Licensee is validly enrolled in the Highcharts Advantage plan;
Highcharts Advantage Fee shall mean the fee payable by Licensee to Highsoft for each subsequent and automatic renewal of Licensee’s enrollment in Highcharts Advantage plan following the initial twelve (12) months included in the License Fee at no additional cost, or the fee payable by License to Highsoft for its enrollment in Highcharts Advantage plan as a Fixed Advantage Period as set out in section 5.2;
Highsoft shall mean Highsoft AS, the company behind Highcharts, a Norwegian corporation with organization no. 996 840 506;
Internal Application shall mean software solutions or applications which fully or partly includes Licensed Software, and which is used solely for internal purposes by Licensee’s employees and/or contractors inside the firewall of Licensee’s network. An Internal Application shall not be used for external purposes and shall under no circumstance be used by or with Licensee’s customers;
Internal License shall mean the license type offered by Highsoft granting Licensee the right to use the Licensed Software as such on websites and Internal Applications as further described in section 4.1.
License shall mean the right to use the Licensed Software granted to Licensee by this Agreement, in the form of either an Internal License, SaaS License, SaaS+ License and/or an OEM License. Upon entering into this Agreement Licensee must choose one of the license types. The sets of usage rights granted by Highsoft under each license type, are defined in section 4.1-4.4 of this Agreement;
License Fee shall mean the fee payable by Licensee to Highsoft for the right to use the Licensed Software and for the Licensee’s initial twelve (12) months enrollment in Highcharts Advantage after Delivery date, which is included in the License Fee at no additional cost;
Licensed Software shall mean the Software products licensed to Licensee through this Agreement, as chosen by Licensee upon purchase and confirmed in the License Statement;
Licensee shall mean the legal entity to which License has been granted, as expressly stated in the License Statement;
Licensee Product shall mean any software product, application or solution, marketed by Licensee, in which Licensed Software may be incorporated solely pursuant to an OEM License in accordance with section 4.4 and which has been approved by Highsoft as a Licensee Product by express identification as such in the License Statement. For the avoidance of doubt, the term Licensee Product shall not include SaaS Applications or Web Applications offered by Licensee pursuant to a SaaS License or a SaaS+ License in accordance with section 4.2 or 4.3;
License Statement shall mean the document sent from Highsoft to Licensee as a link along with the confirmation of the purchase of the License, and which expressly identifies the details of the License, including but not limited to the Licensed Software, the number of authorized Developers, the License ID-number, the expressed name(s) of the applicable Web Applications, SaaS Application(s) and Licensee Products (as
applicable), Licensee’s enrollment in Highcharts Advantage, and applicable terms hereunder, as further set out in section 17.8. In the case of any subsequent changes to the License in accordance with section 17.8, the License Statement will be adjusted accordingly;
OEM License shall mean the license type offered by Highsoft granting Licensee the right to use Licensed Software as an integral part of a Licensee Product which will be supplied to Third Party through a Customer Installation, as further described in section 4.4;
Official Integrations and Add-ons shall mean integrations, wrappers, add-ons, plug-ins and software framework which are made available and supported by Highsoft as an additional free-of-charge service not to be deemed part of the Licensed Software, for the purpose of enhancing the use of the Software and to make integration and programming easier, for instance by adding customized features or by simplifying the development environment. Such Official Integrations and Add-ons may include opens source software and are made available free-of-charge under the MIT-license or other open-source licenses, as applicable. Information about Official Integrations and Add-ons is available on Highsoft´s website.
Optional Dependencies shall mean optional extensions and features to the Software products which are made available and supported by Highsoft as an additional free-of-charge service not to be deemed part of the Licensed Software and which depend in whole or in part on external libraries. Such Optional Dependencies may include open-source software and are made available free-of-charge under the MIT-license or other open-source licenses. Information about Optional Dependencies is available on Highsoft’s Website;
Party shall mean a party to this Agreement;
Release shall mean, with respect to any Licensed Software, any release of minor or substantial updates, news and improvements to Licensed Software, which may include bug fixes, redesign, and refactoring of the API. Such improvements may typically include modifications to the Software which increase the efficiency, ease of use and/or add additional capabilities or functionality.
SaaS Application shall mean a software solution or application offered by Licensee as a service (i.e. not a product) which fully or partly includes Licensed Software and which is made available by Licensee to any number of Third Parties from a server outside such Third Parties’ premises which is owned or controlled by Licensee, and which can be distributed as a web application, desktop application or mobile application, and which may come in various versions for different platforms (such as e.g. iOS and Android versions of a mobile application), provided that such software product, solution or application has been approved by Highsoft as a SaaS Application by express identification as such in the License Statement;
SaaS License shall mean the license type offered by Highsoft granting Licensee the right to use the Licensed Software in one (1) SaaS Application or one (1) Web Application, as further described in section 4.2;
SaaS+ License shall mean the license type offered by Highsoft granting Licensee the right to use the Licensed Software in up to five (5) SaaS Applications and/or Web Applications (total number of applications not to exceed five), as further described in section 4.3;
Software shall mean any and all proprietary software products owned by Highsoft, including without limitation Highcharts Core, Highcharts Stock, Highcharts Maps, Highcharts Gantt and Highcharts Dashboards. For the purposes of this Agreement, Software shall not include Official Integrations, Add-ons or Optional Dependencies;
Third Party shall mean any other entity than the Parties, including but not limited to Licensee’s customers;
Web Application shall mean a software solution or application running on web server(s) owned, controlled or hosted by Licensee which fully or partly includes Licensed Software, which is made available by Licensee to a Third Party, and which can be distributed as a web application, desktop application or mobile application, and which may come in various versions for different platforms (such as e.g. iOS and Android versions of a mobile application);
2. Ownership and Copyright
All Software is the property of Highsoft and is protected by copyright law as well as other statutory and non- statutory intellectual property law. Highsoft product names and trade names are owned by Highsoft and protected under trademark law, both as registered trademarks and through use.
All title and copyrights in and to Software, trademarks and accompanying materials and rights are and shall remain owned fully and solely by Highsoft, and nothing herein shall involve or imply any transfer of such ownership or rights.
Through this Agreement, Software is licensed, not sold.
Highsoft reserves all rights not expressly granted to Licensee in this Agreement. Without limiting the generality of the foregoing, Licensee acknowledges and agrees that: (a) except as specifically set forth in this Agreement, Highsoft retains all right, title and interest in and to Software, and Licensee does not acquire any right, title or interest to Software except as set forth herein; (b) any configuration or deployment of Software shall not affect or diminish Highsoft’s rights, title or interest in and to Software. Except as stated in the foregoing subsection, nothing in this Agreement shall limit in any way Highsoft’s right to develop, use, license, create derivative works of, or otherwise exploit Software, or to permit Third Parties to do so.
Highsoft acknowledges and agrees that (i) Licensee retains all rights, title and interest in and to any Licensee Product and to any Licensee-owned SaaS Application or Web Application, and Highsoft does not acquire any right, title, or interest in or to such product or application; and (ii) any integration of Licensed Software with Licensee Product or Licensee owned SaaS Application or Web Application shall not affect or diminish Licensee’s rights, title, and interest in and to such product or application.
3. Grant of License and Limitations
3.1. Scope of License
Subject to the terms and conditions of this Agreement and upon Licensee's full payment of the applicable fees, Highsoft grants Licensee the right to use the Licensed Software strictly within the scope of the granted License type, and to receive services and Releases included in Highcharts Advantage as described below.
The License, which shall be registered in Licensee's name, shall commence on Delivery Date and be effective until terminated in accordance with the terms and conditions set forth in this Agreement.
When entering into this Agreement, Licensee must choose and state:
- the Software products to be included in the license;
- one or more of the License types described in section 4, and;
- the number of authorized Developers to be included in the License, and;
- which Web Application(s) and/or SaaS Application(s) the Licensed Software will be used in, if purchasing a SaaS License or SaaS+ License as further described in sections 4.2-4.3;
- which Licensee Product(s) the Licensed Software will be used in, if purchasing an OEM License as further described in section 4.4;
- the number of Customer Installations, with or without developer rights, to be included in the License, if purchasing OEM License(s) as further described in section 4.4;
- Any Affiliates to be included in the License.
The information listed in i)-vii) shall be stated in the License Statement.
All Optional Dependencies and Official Integrations and Add-ons are made available by Highsoft as an additional free-of-charge service, irrespective of the chosen Software product and License type, and shall not be deemed part of the Licensed Software.
Each License type grants Licensee a specific set of usage rights to Licensed Software, as described respectively in section 4.1 to 4.4 below. The offered license types described in section 4.1 (Internal License),
4.2 (SaaS License) and 4.3 (SaaS+ License) are complementary in the sense that SaaS License and SaaS+ License each includes a gradual broadened scope and more extensive usage rights than the Internal License,
e.g. the SaaS License consumes and includes more extensive rights than the Internal License. For the avoidance of doubt, an OEM License does not include any of the rights covered by an Internal License, a SaaS License or a SaaS+ License, unless such rights are added in accordance with section 4.4.3 below through a customization of the OEM License.
Depending on the purchased License type(s), sections 4.1, 4.2, 4.3 and/or 4.4 below shall apply. The License type(s) chosen by Licensee shall be stated in Appendix A and in the License Statement.
Upon request, Highsoft may provide advice on which License type will be suitable for Licensee as this will mainly depend on Licensee’s use case. In such case, Highsoft will use its best effort to suggest a suitable License type based on the information provided by Licensee. Licensee shall bear the risk for the correctness and completeness of the information provided, and Highsoft provides no guarantees, express or implied, as
to the suitability of the chosen License type(s) and hereby disclaims any and all liability related to the choice made by Licensee.
3.2. General Limitations to the License
3.2.1. Number of Developers
Each License granted by Highsoft under this Agreement comes with a defined (limited) number of authorized Developers. Licensee acknowledges, accepts, and undertakes to ensure that the actual number of Developers at any time, whether employees or subcontractors of Licensee, shall not exceed the total number of Developers stated in License Statement. Any breach of this restriction shall be considered a material breach of the Agreement.
3.2.2. Usage by Affiliates
The License is granted to Licensee only and does not extend to Licensee’s Affiliates at the commencement of this Agreement, unless otherwise agreed between the Parties by way of express identification of this extended right in the License Statement, and subject to Licensee’s payment of the additional Affiliate Fee.
Licensee may at any time and subject to an additional Affiliate Fee purchase a right for its Affiliates to use the Licensed Software within the scope of the purchased License(s) and the number of Developers and Customer Installations defined therein (if applicable). Any such subsequent extension of the License to also cover Licensee’s Affiliates must, in order to be valid, be agreed in writing between the Parties. If Licensee wishes to purchase such an Affiliate extension, Licensee shall send to Highsoft a written notice, containing (a) the number of Affiliates, and (b) the following information for each of the Affiliates that Licensee wishes to include in the purchased License(s):
- Company name
- Company registration no.
- Contact information
- Contact person
Highsoft will thereafter update the License Statement, which will state the applicable Affiliates included in the License. An extension of the License to include Affiliates shall for the avoidance of doubt not expand the usage rights granted through this Agreement or expand the scope of the granted License unless such expansions of the License are concurrently requested and agreed between the Parties pursuant to section 17.8.
3.2.3. Access to new Releases
Subject to restrictions and limitations applicable to the purchased License type, a purchase of a License grants Licensee the right to use the applicable Release of the Software at the time of purchase. In order to gain access to new Releases, Licensee must remain enrolled in the Highcharts Advantage plan as defined in section 5 below. Upon purchase of a License, Licensee will be automatically enrolled in the Highcharts
Advantage plan, commencing on Delivery Date, and the first twelve (12) months of Licensee’s enrollment in the Highcharts Advantage plan shall be included in the License Fee at no additional cost.
Licensee undertakes not to make use of any Software in other or newer versions than such Release(s) of the Licensed Software which Licensee is entitled to use pursuant to a valid enrollment in the Highcharts Advantage plan. Any breach of this restriction shall be considered a material breach of the Agreement.
A License granted under this Agreement is perpetual and not subject to renewal. The perpetual nature of the License is strictly limited to Release(s) of the Software to which Licensee has lawfully gained access and usage rights during a valid enrollment in the Highcharts Advantage plan. Notwithstanding its (otherwise) perpetual nature, such License shall nevertheless expire if the Agreement is lawfully terminated by Highsoft due to Licensee’s material breach, in accordance with section 13.3.
3.2.4. Access to Source Code
Licensee may obtain Licensed Software source code by downloading the source code from the Highsoft Website, make own edits, and keep its own repositories with the modified source code.
Licensee shall not modify, delete or obscure any notices of proprietary rights or any Software identification or restrictions on or in Software found in the license-header of the code files.
3.2.5. Usage of Software in competing products
Licensee undertakes not to use Software as part of any offerings comprising functionality that is substantially similar to that of Software, during the term of this Agreement, and for a period of three (3) years after its termination, however occasioned. Nothing in this Agreement shall, however, be construed to preclude Licensee from using, marketing, licensing and/or selling software which is developed by Licensee on a fully independent basis, even if such software has the same or similar functionality as Software, provided always that such activities do not infringe or jeopardize Highsoft’s intellectual property rights or are in breach of other related statutory or non-statutory rules of law.
3.3. Identification of Licensee applications or products and optional purchase of License to future applications or products
Licensed Software may only be incorporated into such SaaS Applications, Web Applications or Licensee Products as expressly identified and approved by Highsoft in the License Statement, and the names of such applications or products (as applicable) shall be provided by Licensee upon entering into this Agreement, in accordance with section 3.1. The Parties may agree in writing that the names of the SaaS Applications, Web Applications or Licensee Products (as applicable) shall be provided by Licensee to Highsoft after the Delivery Date, i.e. if the applications or products are still unnamed at the time of entering into this Agreement. In such case, the number of SaaS Applications, Web Applications or Licensee Products (as applicable) shall be listed in Appendix A and the License Statement, and the names of the SaaS Applications, Web Applications or Licensee Products (as applicable) shall be provided by Licensee to Highsoft after the Delivery Date, upon which the License Statement will be updated. Licensee is not authorized to use Licensed Software in any
SaaS Applications, Web Applications or Licensee Products not identified in the License Statement, i.e. after notice has been provided to Highsoft in accordance with this paragraph.
Licensee may also choose to purchase a SaaS License, SaaS+ License or OEM License for use in future SaaS Applications, Web Applications or Licensee Products. In such case, Licensee must, upon purchase of the License, provide to Highsoft the number of SaaS Applications, Web Applications and/or Licensee Products (as applicable) to be included in the License, which will be listed as unnamed products in the License Statement.
When Licensee wishes to utilize the purchased License for the optional future applications or products, Licensee shall give notice to Highsoft of this and state the names of the applications and/or products as well as any changes (if applicable) in the scope of the purchased License required by Licensee before incorporation of the Licensed Software into the applications or products, upon which the License Statement shall be updated accordingly. For the avoidance of doubt, the requirement that Licensed Software may only be incorporated into such SaaS Applications, Web applications or Licensee Products as expressly identified and approved by Highsoft in the License Statement, shall also apply for such optional future applications or products, and the Licensee is not authorized to incorporate the Licensed Software into such applications or products before Licensee has notified Highsoft in accordance with this paragraph and the License Statement has been adjusted accordingly.
While the non-reusable nature of SaaS, SaaS+ and OEM Licenses does not authorize Licensee to change or replace a SaaS Application, Web Application or Licensee Product with another application or product under the same License, this shall not be deemed to preclude Licensee from changing the name of a SaaS Application, Web Application or Licensee product included in a License, and to request that the License Statement is adjusted accordingly.
3.4. Special terms for Highcharts Dashboards
The following terms and conditions shall be applicable insofar as the Licensed Software includes Highcharts Dashboards, in addition to the terms otherwise set out herein this Agreement.
In addition to using the standard components included in the library provided by Highsoft to a Licensee holding a License to Highcharts Dashboards, Highcharts Dashboards enables Developers to make custom components or add Third Party components to dashboards created using Highcharts Dashboards. For the avoidance of doubt, the warranties and indemnifications provided by Highsoft in section 8 and 10 of this Agreement shall solely apply to the library and the standard components provided by Highsoft to Licensee in accordance with section 7. Licensee shall indemnify and hold Highsoft harmless from and against any and all losses, claims and damages related to customized components or Third Party components developed or utilized through Highcharts Dashboards.
Highcharts Dashboards enables Developers to further enable other employees or contractors of Licensee, or Licensee’s customers and end users, to modify dashboards through the “Edit Mode”. The usage of this functionality shall for the avoidance of doubt not lead to such persons being regarded as Developers or count
towards the total count of Licensee’s included Developers, insofar as such persons will not be working with or accessing the API and/or source code of the Licensed Software. The restrictions related to generation of static content in section 4.1 below shall furthermore not be construed as prohibiting Licensee from enabling users to access the “Editor Mode” to modify, add, remove, move, or resize components in dashboards created by Licensee holding an Internal License, in so far as the parameters of interaction and modification of such components remain the same for all such users, and such actions do not require working with or accessing the API and/or source code of the Licensed Software.
4. License types and usage rights included
4.1. Internal License
Through an Internal License, Highsoft grants Licensee a non-exclusive, perpetual (for applicable Releases), non-sublicensable, worldwide right to install, reproduce, use and further develop Licensed Software as such:
- on any number of public or private websites (including subdomains and intranet sites) for generation of static content, and;
- on any Internal Applications
An Internal License authorizes Licensee to use the Licensed Software for internal purposes only and extends to Licensee’s employees and contractors, but not to its clients or other Third Parties. An Internal License does not include any right for Licensee to use the Licensed Software in a SaaS Application, Web Application or a Licensee Product, nor does it authorized Licensee to perform Customer Installations.
The condition that the right to use the Licensed Software under an Internal License is limited to generation of static content only, means that the data set in the content provided by Licensee on websites must be the same (identical) for all users, and that such websites shall not generate individually tailored content adapted to any user’s personal data. For the avoidance of doubt, this does not prevent the use of the Licensed Software under an Internal License to create interactive content but requires that the parameters of the interaction of such content is the same for all users.
4.2. SaaS License
Through a SaaS License, Highsoft grants Licensee such rights that are covered by an Internal License with the addition of a non-exclusive, perpetual (for applicable Releases), non-reusable, worldwide right to install, reproduce, use and further develop Licensed Software as an integral part of either:
- one (1) SaaS Application, or;
- one (1) Web Application,
Licensed Software may be incorporated solely into a SaaS Application or a Web Application that has been expressly identified and approved by Highsoft in the License Statement. Licensee is allowed to make changes or further developments to the specified SaaS Application or Web Application. The non-reusable character of the SaaS License means that Licensee is not allowed to change or replace the SaaS Application or Web Application with a separate SaaS Application or Web Application under the same License.
A SaaS License does not authorize Licensee to perform Customer Installations, and any such Customer Installations distributed by a Licensee holding only a SaaS License shall therefore be deemed invalid and shall be considered a material breach of this Agreement.
Except for the authorized use of the Licensed Software in either one (1) SaaS Application or one (1) Web Application as specified in the License Statement, Licensees only holding a SaaS License is under no circumstances authorized to transfer, rent, lease, lend, sell, copy, redistribute, or sublicense any Licensed Software, in itself or together with other software, or in any other way make Software available to any Third Party. Any attempt to do so shall be considered a material breach of this Agreement.
4.3. SaaS+ License
Through a SaaS+ License, Highsoft grants Licensee such rights that are covered by an Internal License with the addition of a non-exclusive, perpetual (for applicable Releases), non-reusable, worldwide right to install, reproduce, use and further develop Licensed Software in either:
- Up to five (5) independent SaaS Applications, or;
- Up to five (5) independent Web Applications, or;
- Up to five (5) independent SaaS Applications and Web Applications as long as the total number of applications does not exceed five (5).
A SaaS+ License does not authorize Licensee to perform Customer Installations, and any such Customer Installations performed by a Licensee holding only a SaaS+ License shall therefore be deemed unauthorized and invalid and shall be considered a material breach of this Agreement.
Except for the authorized use of the Licensed Software in accordance with letter a., b. or c. in this section 4.3 and as specified in the License Statement, Licensees only holding a SaaS+ License are under no circumstances authorized to transfer, rent, lease, lend, sell, copy, redistribute, or sublicense any Licensed Software, in itself or together with other software, or in any other way make Licensed Software available to any Third Party. Any attempt to do so shall be considered a material breach of this Agreement.
4.4. OEM License
4.4.1. Grants under the OEM License
Through an OEM License, Highsoft grants Licensee a non-exclusive, perpetual (for applicable Releases), non-reusable, worldwide right to install, reproduce, use, sublicense and further develop Licensed Software as an integral part of a Licensee Product, provided that such Licensee Product be supplied to Third Party through a Customer Installation, with or without the right for Licensee’s customers to work with the API and/or source code of the Licensed Software (“Developer Rights”), dependent on Licensee’s choice as specified in License Statement.
The authorization to sublicense Licensed Software only applies when and as long as such Licensed Software lawfully is incorporated with Licensee Product supplied to Third Party in accordance with this Agreement.
4.4.2. Limitations to the OEM License
Licensee acknowledges, accepts, and undertakes to ensure that the actual number of Licensee Products and Customer Installations, with or without Developer Rights, shall not at any time exceed the total number of Licensee Products and Customer Installations selected by Licensee upon purchase of the License and specified in the License Statement.
Licensed Software may only be incorporated into such Licensee Products as expressly identified and approved by Highsoft in the License Statement.
Licensee shall be prohibited from reselling any Licensee Product or otherwise from granting its customers permission to use the Licensed Software, in any manner that contradicts the terms and restrictions of this Agreement or the License(s) granted hereunder.
4.4.3. Optional addition of Websites, Internal Applications, SaaS Application(s) and/or Web Application(s) to the OEM License
Licensee may, subject to an additional fee, choose to customize the OEM License by adding the usage rights granted under the Internal License, SaaS License or SaaS+ License. By doing so, depending on the chosen additions to the OEM License, Licensee will be authorized to use the Licensed Software as such on any websites (public or private) and Internal Applications, to incorporate Licensed Software into the number of SaaS Application and/or Web Application as specified by Licensee and approved by Highsoft in the License Statement.
5. Highcharts Advantage
5.1. Enrollment and Auto-Renewal
When purchasing a License under this Agreement, Licensee is automatically enrolled in Highsoft’s Highcharts Advantage plan. The Highcharts Advantage plan operates in twelve (12) months intervals commencing on Delivery Date (each twelve-month period constituting an “Advantage Period”). The Highcharts Advantage plan is based on a continuous subscription to Highcharts Advantage, which is automatically renewed at the end of each Advantage Period (“Auto-Renewal”), unless cancelled in accordance with section 5.4 below. Licensee’s continued enrollment in Highcharts Advantage plan is subject to payment of the applicable Highcharts Advantage Fee in accordance with section 6 below.
Auto-Renewal of Licensee’s enrollment in the Highcharts Advantage plan is made for the complete License and includes the same number of Developers and/or Customer Installations (as applicable) as set out in the License Statement. Licensee may prior to the end of each Advantage Period request upgrades to the License by notice to Highsoft in accordance with sections 17.8 and 17.9, and may hereunder request increasing the number of Developers and/or Customer Installations, or additions of new SaaS Applications, Web Applications or Licensee Products (as applicable), to be included in the License upon Auto-Renewal,
5.2. Optional Fixed Advantage Period
Instead of the subscription-based Auto-Renewal of Highcharts Advantage described above in section 5.1, Licensee may, at the time of purchase, choose to enroll in the Highcharts Advantage plan for fixed periods of up to five (5) years at a time (“Fixed Advantage Period”). The duration of Licensee’s Fixed Advantage Period shall in such case be stated in the License Statement. At the end of the Fixed Advantage Period, Licensee’s enrollment will expire without further notice, unless License prior to the end of the Fixed Advantage Period renews its enrollment in the Highcharts Advantage plan with one or more Advantage Periods (“Extension”).
In order to choose a Fixed Advantage Period, Licensee must give notice to Highsoft upon purchase. As set forth in section 17.8, the selected option for Licensee’s enrollment in the Highcharts Advantage plan will be listed in the License Statement. Unless otherwise stated at the time of purchase, Licensee’s enrollment in the Highcharts Advantage plan will automatically be subject to Auto-Renewal as set forth in section 5.1.
5.3. Entitlements and limitations
Under a valid and effective enrollment in the Highcharts Advantage plan, Licensee shall be entitled to receive:
- All new Releases of the Licensed Software released during the applicable period;
- Ten (10) hours of personalized technical support per Developer per twelve (12) month period based on the number of Developers stated in the License Statement;
- Technical support by e-mail;
- Priority response, no later than 36 hours on working days in Norway after the request was received;
- Access to 2nd line support by core developers;
- Online text chat with 1st line support engineers;
- Investigation of any claimed bug/error/malfunction/nonfunctioning of Licensed Software, and when possible suggestions as to corrective or work-around solutions to the problems;
- Supply of emergency hot fixes to Licensed Software. This will be available as patches to the latest stable source code, and, if applicable, be included in the subsequent Release;
- Guidance and advice on implementing Licensed Software with any Third-Party systems and platforms to the extent such implementation is authorized under this Agreement. This includes advice on best practices, code review and guidance on parts of the code that are directly related to using Software. The guidance and advice from Highsoft will not include general usage of the Third-Party system, components, platform or actual coding work;
- Any bug and error fixing, malfunctioning of Licensed Software is to be delivered outside the personalized technical support hours.
During each Advantage Period in which Licensee is validly enrolled in Highcharts Advantage, Highsoft will provide support for all Releases of Licensed Software released within that Advantage Period.
Highcharts Advantage does not cover issues arising in connection with implementation of Licensed Software in/to Licensee Products or Licensee’s own applications.
Highcharts Advantage as set forth in this section, shall not extend to any Third Parties to which Licensee distributes Licensee Products, SaaS Application(s) or Web Application(s) containing Licensed Software or any
part thereof. Support to any Licensee customers shall hence be Licensee’s full and sole responsibility. Highsoft may, at its sole discretion, at any time choose to discontinue the supply of new Releases.
5.4. Opt Out
Unless enrolled in a Fixed Advantage Plan, Licensee may at any time cancel its enrollment in the Highcharts Advantage plan by notice to Highsoft of such cancellation within sixty (60) days prior to the end of the current Advantage Period, upon which Licensee’s enrollment in Highcharts Advantage shall expire after the end of that Advantage Period (“Opt Out”). If the notice of Opt Out is provided later than sixty (60) days prior to the end of the current Advantage Period, Licensee’s enrollment in Highcharts Advantage shall expire at the end of the following Advantage Period. Upon Opt Out, Licensee will retain a perpetual License to the Releases of the Software to which Licensee has lawfully gained access and usage rights during its enrollment in the Highcharts Advantage plan, but will not be entitled to access to new Releases or the support services as set out in section 5.3 above.
Licensee acknowledges and accepts that Highsoft may make changes to its business, license or support model or to the terms and conditions under which Highsoft is willing to offer its Software, and that in order for Highsoft to offer continued Auto-Renewal or Extension of Highcharts Advantage, Highsoft may from time to time amend this Agreement in order to reflect such changes. Upon Auto-Renewal or the purchase of an Extension of Licensee’s enrollment in the Highcharts Advantage plan, the enrollment in the Highcharts Advantage plan and the License to which the Highcharts Advantage relates shall be governed by the most- recent version of Highsoft’s Standard License Agreement as amended from time to time by Highsoft. The applicable version of Highsoft’s Standard License Agreement governing Licensee’s enrollment in the Highcharts Advantage plan and the License to which it relates, will be stated in the License Statement upon Auto-Renewal or Extension, and is available on the Highsoft Website. If Licensee is enrolled in Highcharts Advantage through a Fixed Advantage Period, Licensee acknowledges and accepts that changes made to Highsoft’s business, license or support model during the Fixed Advantage Period may require amendments of the Agreement in order to reflect the updated or adjusted offering appropriately.
6. License Fee and Highcharts Advantage Fee
Licensee shall upon purchase pay the agreed License Fee covering the purchase of Licensed Software and the included initial Advantage Period, or Fixed Advantage Period (if applicable), as detailed in the License Statement. Upon each Auto-Renewal of Licensee’s enrollment in the Highcharts Advantage plan, Licensee shall pay the Highcharts Advantage Fee applicable at the time of Auto-Renewal. If Licensee has elected a Fixed Advantage Period at the time of purchase, and wishes to purchase an Extension, Licensee shall pay the applicable Highcharts Advantage Fee at the time of such Extension.
Highsoft shall invoice Licensee and Licensee shall pay all invoices by the agreed payment method timely, which shall be no later than thirty (30) days from invoice date. In case of payment delay, Highsoft may claim late payment interest at the rate stipulated in applicable law.
Licensee shall be responsible for ensuring that its usage of the Software is in accordance with the scope of the License granted, as detailed in the License Statement. Licensee hereby accepts and agrees that in the case of Licensee’s usage of the Software which exceeds the agreed scope of the License, Highsoft may, following notice to Licensee, invoice Licensee corresponding to the exceeding usage and based on the applicable fees at the time of usage.
Each Party shall be fully and solely responsible for payment of any bank charges and/or local taxes imposed by the law of that Party's home country related to the purchase of Licensed Software or Highcharts Advantage, and each Party shall indemnify, defend and hold harmless the other Party from any taxes, claims, costs or other liabilities related to the indemnifying Party’s taxes. Invoices from Highsoft will not include taxes, except VAT in the case of Norwegian customers. Licensee may not withhold any part of the invoiced amount as payment of taxes.
All Licenses and accompanying rights as well as Highcharts Advantage are granted to Licensee on the condition that all the due fees are paid to Highsoft in full and on time.
During the term of this Agreement, Licensed Software shall be made available by Highsoft, and Licensee shall be authorized to download such Licensed Software from Highsoft Website. As set forth in sections 3.2.3 and 5 above, new Releases of Licensed Software shall only be available to Licensee as long as Licensee is validly enrolled in the Highcharts Advantage plan.
8. Marketing and descriptions of Licensed Software
Licensee may use Licensee’s own descriptions of the functionality provided by Licensed Software for the purposes of marketing Licensee’s own products, solutions or applications, including Licensee Products, if applicable, insofar as the descriptions are not misleading.
Licensee shall not do anything that might misrepresent the ownership of Software. Licensee undertakes not to brand Software as Licensee’s own or declare or give the impression that Licensee owns the copyright in Software.
Each Party may use the other Party’s name and logos in its marketing, promotion and website, in accordance with good business practice and as is reasonably necessary in order to describe and promote the Software or Licensee’s Product(s), SaaS Application(s) or Web Application(s), as applicable, including naming Licensee as a reference and showcasing Licensee’s publicly available charts which includes Licensed Software for the purposes of promoting or demonstrating the Software.
Licensee agrees that it will conduct its business in a manner that will not injure or jeopardize Highsoft’s reputation.
9. Warranties and Representations
Highsoft's warranties and representations in this section 9 are limited to Licensed Software provided to Licensee under this Agreement. The warranties and representations provided herein does not cover and shall under no circumstances be deemed to cover any Official Integrations and Add-ons or Optional Dependencies.
9.2. Highsoft's Warranties and Representations
Highsoft warrants and represents that:
- Licensed Software will perform substantially in accordance with Highsoft’s written specifications, provided that it has been used in accordance with all documentation and specifications made available on Highsoft's Website, (a) for the duration of the Advantage Period in which the applicable Release has been issued by Highsoft, or (b) until replaced by a newer Release,
- Highsoft will perform its obligations under this Agreement in accordance with all applicable laws and regulations,
- Highsoft has the full and unconditional ownership of Licensed Software,
- This Agreement does not infringe the intellectual property rights of any Third Party,
- The Licensed Software does not include any Third-Party software,
- Licensee may make full use of License granted to it in full knowledge of the above,
- Highsoft has the requisite knowledge, personnel, resources and know-how to fully perform and deliver Licensed Software and associated services as stipulated by this Agreement in a professional manner,
- Highsoft has not intentionally placed and will use its best efforts to avoid the placement of any Harmful Codes into Licensed Software provided under this Agreement. For the purpose of this section "Harmful Codes" shall be defined as any program that infects, damages and/or impairs another program or data, disables hardware or software, or permits or assists in the breach of data.
9.3. Licensee's Remedies
In the event of breach, or alleged breach of any of the warranties in section 9.2, Licensee shall promptly notify Highsoft and delete Software. Licensee’s sole remedy in such an event shall be that Highsoft shall re-supply or correct the Licensed Software so that it operates according to the warranties set out in section 9.2. The warranties shall not apply if Licensee has modified, or used Licensed Software improperly, or on an operating environment not approved by Highsoft. Improper use and unapproved operating environments will be as set forth in the documentation provided to Licensee on or prior to Delivery Date.
10. Limitation of Liability
All Software and support services supplied by Highsoft are provided ‘as is’ and may have errors and omissions. Thus, remedies are only available to Licensee in the event of any breach of the warranties set out in section 9.2, and Highsoft is unable to re-supply and correct the Licensed Software in accordance with section 9.3.
UNDER NO CIRCUMSTANCES, AND EVEN IF INFORMED THEREOF BY LICENSEE OR ANY OTHER PARTY, SHALL HIGHSOFT BE LIABLE FOR (i) LOSS OF, OR DAMAGE TO, DATA; (ii) SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES; OR (iii) LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
Incorporation of Licensed Software into a SaaS Application or Web Application shall not in any manner expand Highsoft’s liabilities under the Agreement. Thus, Highsoft shall not under any circumstance be neither responsible nor liable for any aspects of such SaaS Application(s) or Web Applications(s), including but not limited to its reliability, uptime/downtime, functioning or fitness for purpose. Any obligations, liabilities or warranties undertaken by Licensee towards its customers with respect to such SaaS Application(s) or Web Application(s) shall apply only between mentioned parties, and Licensee hereby undertakes to indemnify and hold Highsoft harmless from and against any and all losses, clams and damages related to the reliability, uptime/downtime, functioning or fitness for purpose of such SaaS Application(s) or Web Applications(s).
In all events, Highsoft’s liability for damages to Licensee for any cause whatsoever related to this Agreement, shall be limited to the sum of all fees paid or due by Licensee under this Agreement during the last twelve (12) months before the breach occurred.
11. Intellectual Property Infringement
Highsoft will defend, indemnify and hold Licensee harmless against any claim stating that Licensed Software is violating any Third-Party copyright provided that:
- Licensee promptly notifies Highsoft of the claim, such notice to be provided no later than ten (10) business days after receipt of said claim(s);
- A copy of the notice(s) of copyright infringement is promptly sent to Highsoft in accordance with section 17.9;
- Licensee in good faith cooperates with and assists Highsoft in the defense of the claim in question and meets reasonable requests from Highsoft in that respect;
- Notwithstanding item iii. above, Highsoft shall have sole control of the defense and any related settlement negotiations in the case of legal proceedings; and
- Licensee timely provides Highsoft with all necessary assistance, information and authority to perform the above.
If Licensed Software is held by a final court ruling to be infringing any Third Party copyright Highsoft will at its option: (i) obtain the right for Licensee to continue to use such Software consistent with this Agreement; (ii) modify such Software so that it is non-infringing; or (iii) refund any and all invoiced amounts to Licensee and all of Highsoft’s obligations under this Agreement shall terminate upon written notice.
Notwithstanding the foregoing, Highsoft's indemnity obligations under this section 11 shall under any circumstances be limited to the total amount invoiced to Licensee by Highsoft under this Agreement during the last twelve (12) months prior to the day when Licensee provided notice to Highsoft of claim subject to this section 11.
For the purpose of this section each Party shall be called Disclosing Party and Receiving Party respectively.
Each Party acknowledges that Confidential Information is proprietary, that it is valuable to Disclosing Party and that any disclosure or unauthorized use thereof may cause irreparable harm and loss to Disclosing Party.
Obligations of Receiving Party in regard to Confidential Information:
- In consideration of the disclosure to Receiving Party of Confidential Information, Receiving Party agrees to receive and to treat Confidential Information on a confidential and restricted basis and to undertake the following additional obligations with respect thereto,
- To use Confidential Information for the sole purpose of fulfilling this Agreement, or for the purpose of enhancing or improving the services provided under Highcharts Advantage or the general customer experience when doing business with Highsoft and/or Highsoft’s trusted partners, unless otherwise expressly agreed to in writing by Parties,
- Not to duplicate, in whole or in part, any Confidential Information,
- Subject to the next paragraph, not to disclose Confidential Information to Third Parties except on a need-to-know basis, and each such entity or individual person Receiving Confidential Information shall be notified of and required to abide by the terms and conditions of this Agreement,
Information stated in the License Statement provided by Highsoft to Licensee may be shared with Highsoft’s officers, employees, Affiliates and trusted partners, provided that Highsoft holds an agreement with such entity or individual person committing them to same level of confidentiality as the Parties have agreed to in this Agreement.
Upon Expiration or Termination of this Agreement, however occasioned, each Party shall remove, delete or otherwise destroy any of other Party‘s material that it has received, copied or otherwise obtained, including but not limited to Confidential Information, except for information required to support any license, sublicense or maintenance obligations already granted or undertaken by Licensee towards any Third Party, or information required for tax purposes or otherwise required by mandatory law. A written confirmation that such deletion has been completed shall upon request be sent to the other Party without undue delay. For the avoidance of doubt, this obligation to remove, delete or otherwise destroy materials shall not include the Releases of the Licensed Software to which Licensee has gained perpetual rights to in accordance with this Agreement, unless the Agreement is terminated by Highsoft for material breach by Licensee.
13. Term and Termination
This Agreement shall come into force on the Delivery Date and shall stay in force for as long as Licensee is enrolled in the Highcharts Advantage plan. Upon an Opt Out by Licensee or the end of a Fixed Advantage Period, the Agreement shall terminate automatically and without notice at the end of the applicable Advantage Period (“Expiration”).
13.2. Effects of Expiration
On Expiration of this Agreement, the following shall apply:
- Licensee may continue to utilize the Releases of the Licensed Software to which Licensee has gained perpetual rights, i.e. the Releases of the Licensed Software which were have been released during Licensees enrollment in Highcharts Advantage, in accordance with sections 3.2.3 and 5 (including subsections, as applicable) and the scope of the perpetual License as detailed in the License Statement;
- Licensee is not entitled to use, and shall immediately cease all use and distribution of, any Releases of the Licensed Software to which Licensee has not gained perpetual rights;
- Sections 2, 10, 12 and 15 of this Agreement shall survive.
Either Party may terminate this Agreement in the event of a material breach of this Agreement by the other Party and such material breach has not been cured within thirty (30) days after receipt of written notice of such breach by the breaching Party from the non-breaching Party.
Upon Highsoft’s termination for material breach by Licensee:
- Licensee shall immediately cease use and distribution of Licensed Software.
- Sections 2, 10, 12 and 15 of this Agreement shall survive.
Licensee may not assign or transfer all, or any part of its rights under this Agreement without Highsoft’s prior written consent. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety to its Affiliate(s), or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. In such case, the assigning party shall notify the other in writing without undue delay, and unless otherwise agreed upon in writing, this Agreement shall bind, and inure to the benefit of Parties, their respective successors, and permitted assigns.
15. Applicable Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of Norway.
Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, Parties shall seek to solve amicably through negotiations. If the Parties do not reach an amicable solution within two (2) weeks, any dispute, controversy or claim shall be finally settled by the regular courts of Norway. Both Parties hereby agree to and accept Sogn and Fjordane District Court (Sogn og Fjordane tingrett) as exclusive legal venue.
16. Processing of Personal Data
To the extent any purchase under the Agreement involves processing by Highsoft of personal data about the Licensee or Licensee’s customers or personnel, Highsoft shall be acting as a data controller. By law, Highsoft is required to provide the data subject with information about Highsoft and why and how Highsoft uses
17.1. Relationship between Parties
The Parties are independent contractors, and this Agreement shall not constitute or be construed as constituting either Party as partner, joint venture, agency or fiduciary of the other, as creating any other form of legal association that would impose liability on one Party for the act, or failure to act, of the other Party, or as providing either Party with the right, power, or authority (express, or implied) to create any duty or obligation of the other Party. Neither Party shall directly or indirectly represent to the public that it has the right or the authority to create or accept obligations on behalf of the other Party. Except as otherwise expressly provided in this Agreement, each Party has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all work to be performed by it under this Agreement.
During the term of this Agreement and for a period of five (5) years thereafter, Highsoft shall have the right to review, audit and inspect Licensee’s use of the Licensed Software in order to verify that Licensee complies with the grants and limitations set out in this Agreement. Such audit shall only be conducted under non- disclosure obligations, upon reasonable notice, which shall be no shorter than ten (10) calendar days and shall take place during Licensee regular business hours with minimal disruption to Licensee’s ongoing operations. If the audit shows no discrepancies or unauthorized use of Highsoft’s Software, Highsoft shall carry all of its costs associated with the audit.
In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
The waiver by either Highsoft, or Licensee of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for non-payment or an infringement of Highsoft’s intellectual proprietary rights in Licensed Software, no action, regardless of form, arising out of this Agreement may be brought by Licensee more than one (1) year after the cause of action has occurred.
17.5. Entire Agreement
This Agreement is the entire agreement between Highsoft and Licensee relating to this relationship and supersedes all prior or contemporaneous oral or written communications, proposals and representations relating to that relationship.
17.6. Battle of Forms
Licensee’s purchase of License shall be solely governed by the terms and conditions of this Agreement. Any terms or conditions introduced by Licensee either directly, indirectly by way of reference or otherwise are hereby explicitly rejected and shall not apply.
The Parties agree that any additional or differing terms or conditions in any other document or arrangement not forming part of this Agreement, including but not limited to any letter or terms of engagement or the like, purchase order, invoice, acknowledgment, delivery receipt, confirmation or other delivery or acceptance document issued by or on behalf of either Party shall be void, and of no force or effect to the extent such are in breach of or contradiction with this Agreement.
Except in accordance with section 5.5, no amendment to, or modification of this Agreement or the scope of the License shall be binding unless made in writing and signed by the Parties.
17.8. License Statement and Changes to the License
Highsoft shall confirm Licensee’s purchase of the License by issuing a License Statement, which is an automatically generated document provided as a link to Licensee, summarizing the agreed details of the License granted by Highsoft to Licensee.
The License Statement shall expressly state:
- The License owner
- Licensee’s point of contact (email address) to whom notices under this Agreement shall be sent
- The chosen License type(s)
- The Licensed Software included in the License
- The License identification number
- Licensee’s enrollment in Highcharts Advantage, hereunder the applicable option (Auto-Renewal or Fixed Advantage Period)
- The number of authorized Developers
- The Licensee Product(s), into which Licensed Software may be incorporated pursuant to an OEM License, if applicable,
- The number of Customer Installations (with or without Developer Rights) Licensee shall be authorized to perform under an OEM License, if applicable
- The SaaS Application(s) and/or Web Application(s), into which Licensed Software may be incorporated pursuant to a SaaS License or a SaaS+ License, as applicable
- The specific Licensee’s Affiliates to which the License shall be extended, or, that the License shall extend to an unlimited number of Affiliates, if applicable.
In the event Licensee wants to make any changes to the License, such as Extension of Highcharts Advantage, or renaming of Licensee Product(s), SaaS Application(s) or Web Applications, or if Licensee wants to expand
the scope of the License for example by adding new Licensee Products, SaaS Applications, Web Applications, Developer seats or Customer Installations (with or without Developer Rights), Licensee shall notify Highsoft in writing. Such changes may require a new License or changes to the existing License, depending on the changes requested by Licensee. If Licensee and Highsoft agrees in writing on any changes to the License and the payable fees, the License Statement will be updated accordingly.
All notices to be given under this Agreement to Highsoft shall be sent either by email to [email protected] or as a hardcopy to the following address: Highsoft AS, Sentrumsgata 44, 6893 Vik i Sogn, Norway.
Information from Highsoft to Licensee shall be sent by email to the email address Licensee has provided upon purchase. It is Licensee’ responsibility to ensure that the e-mail address is correct. Highsoft does not take responsibility for lost communication.
All notices, demands or other communication given by a Party to the other shall be deemed to have been duly given when made in writing and sent to the registered e-mail address or when a hardcopy is received by the other Party at the stated address.