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.
By Installing or using the Software or any part thereof, Licensee agrees to be bound by this Agreement, unless Licensee is using the Software for a non-commercial purpose authorized by Highsoft.
Unless Licensee fully agrees to all terms and conditions set forth in this Standard License Agreement, Licensee shall not be allowed or authorized to install or use any Software made available through the Highsoft Website.
Agreement shall mean this document, its appendices and the License Statement;
Advantage shall mean the maintenance and support services offered by Highsoft, as defined in section 3.4 below, which Licensee is entitled to receive for as long as Licensee is validly enrolled in Highsoft’s Advantage plan;
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, means direct, or indirect ownership, 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 3.1.
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. In addition to Licensee’s name, logo, the existence of a contractual relationship between the Parties and the product licensed under the Agreement, Confidential Information shall not include 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 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 3.3 below;
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 person who will be simultaneously working with the API and/or source code of the Licensed Software, and/or making use of the Software in any capacity, including but not limited to developers, designers and testers. The number of Developers authorized to work with the Licensed Software is defined in the License Statement;
Highsoft shall mean Highsoft AS, a Norwegian corporation with organization no. NO996840506MVA;
Highsoft Website shall mean www.highcharts.com;
License shall mean the right to use the Licensed Software granted to Licensee by this Agreement, in the form of a Developer License or an OEM License. Upon entering into this Agreement Licensee must choose one or more license type(s). The sets of usage rights granted by Highsoft under each license type, are defined in section 3 of this Agreement;
License Fee / Advantage Fee shall mean the fee payable by Licensee to Highsoft for (i) the right to use the Licensed Software and be enrolled in Advantage for the initial twelve (12) months after Delivery date (“License Fee”) and (ii) each subsequent (optional) additional or renewed period of Advantage, as applicable (“Advantage Fee”), both fees to be fixed according to Highsoft’s current price list at the time of each purchase (see however section 4 of this Agreement);
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 pursuant to an OEM License and which has been approved by Highsoft as a Licensee Product by express identification as such in the License Statement;
License Statement shall mean the document sent from Highsoft to Licensee confirming purchase of License; which expressly states the Licensed Software, the License ID-number, the period for Licensee’s enrollment in Advantage and applicable terms hereunder;
Official Wrappers and Add-ons shall mean 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 Wrappers 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 Wrappers and Add-ons is available on Highsoft’s Website: www.highcharts.com/blog/wrappers-addons-and-plugins/;
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: www.highcharts.com/docs/getting-started/optional-dependencies;
Party shall mean a party to this Agreement;
Release shall mean, with respect to any Licensed Software, any release of minor or substantial news and improvements to Licensed Software, any 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. To be entitled to gain access to Releases, Licensee must be validly enrolled in Highsoft’s Advantage, pursuant to sections 3.1, 3.4 and 4;
SaaS Application shall mean a software product, solution or application which fully or partly includes Licensed Software and which is made available by Licensee to Third Party from a server outside such Third Party’s premises and under the terms of a subscription or similar financial model, 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.
Software shall mean any and all proprietary software products owned by Highsoft including Highcharts JS – the main product included in all licenses, in addition to Highcharts Stock, Highcharts Maps and Highcharts Gantt – which are optional additional products. For the purpose of this Agreement, Software shall not include Official Wrappers and Add-ons nor Optional Dependencies;
Third Party shall mean any other entity than the Parties, including but not limited to Licensee customers;
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 signs 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.
3. Grant 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 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
- the Software products to be included in the license. Highcharts JS is mandatory, and;
- one or more of the License types described in this section 3, and;
- the number of Developers to be included in the License, if purchasing Developer License(s) as further described in section 3.2, and;
- the number of Developers, Customer Installations, with or without developer rights, to be included in the License, if purchasing OEM License(s) as further described in section 3.3.
For the avoidance of doubt, the Optional Dependencies and Official Wrappers 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 3.2, and/or 3.3 below.
Depending on the purchased License type(s), sections 3.2 and/or 3.3 below shall apply. Section 3.1 and 3.4 shall apply to all License types and hence regardless of the chosen License. The License type(s) chosen by Licensee shall be stated in the License Statement.
3.1. General Grants and Limitations
The determination of which License type will be suitable for Licensee will depend on factors, such as e.g. the number of developers, the manner of deployment of Licensee Products, the number of installations, etc. Licensee may seek advice on the suitable License type directly from Highsoft. 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 information provided by it. Under any circumstances, 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.
Unless otherwise explicitly agreed between the Parties, all Licenses are granted by Highsoft to Licensee only and do not extend to Licensee’s Affiliates. However, 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 extension of the License to also cover Licensee’s Affiliates must, in order to be valid, be agreed in writing between the Parties. The written Agreement shall state the applicable Affiliate Fee and the conditions governing its payment, and the License Statement shall be adjusted accordingly by Highsoft.
The purchase of any License to use the Licensed Software shall also include a twelve (12) months enrollment in Highsoft’s Advantage plan as defined in section 3.4 below, commencing on Delivery Date. Licensee may purchase additional period(s) of Advantage at the same time as purchasing a License or, alternatively, upon expiry of the included Advantage period renew Advantage with additional twelve (12) month periods (or longer) pursuant to section 3.4 below and subject to payment of the applicable Advantage fee according to section 4.
The perpetual nature of License(s) granted under section 3.2 and/or 3.3 of this Agreement is strictly limited to Release(s) of the Software to which Licensee has lawfully gained access and usage rights during a valid enrollment in Highsoft’s Advantage plan in accordance with section 3.4. Notwithstanding its (otherwise) perpetual nature, such License shall nevertheless expire if the Agreement is lawfully terminated by Highsoft due to Licensee’s material breach, cf. section 11 second paragraph.
Licensee may obtain Licensed Software source code by downloading the source code from Highsoft Website, and make own edits, and keep its own repositories with the modified source code.
Licensee undertakes not to use Software as part of any offerings comprising functionality that is substantially similar to that of Software or any other products that Highsoft is offering, 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 either Party from developing, using, marketing, licensing and/or selling independently software which has the same or similar functionality as Software or any other products, as long as such activities do not infringe the intellectual property rights of the other Party or other statutory or non-statutory provisions.
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. Developer License
Through a Developer License, Highsoft grants Licensee a non-exclusive, perpetual (for applicable Releases), non-sublicensable, non-reusable, worldwide right to install, reproduce, use and further develop Licensed Software:
- on any computer, platform, system and/or environment controlled or owned by Licensee, and;
- on any number of websites, domains or intranet sites; and
- either (a) in one (1) SaaS Application owned, hosted or controlled in full by Licensee, or (b) in one (1) web application owned, hosted or controlled in full by Licensee.
Licensee acknowledges, accepts, and undertakes to ensure that the actual number of Developers at any time shall not exceed the total number of Developers stated in License Statement. Licensee further agrees not to make use of any Software products in other (newer) versions than such Release(s) of the Licensed Software which Licensee is entitled to use pursuant to section 3.4. Any breach of this restriction shall be considered a material breach of the Agreement.
A Developer License does not authorize Licensee to perform Customer Installations. Nor does it authorize Licensee to use Licensed Software in a SaaS-offering or web application which is hosted in any part by Licensee’s customer. All Customer Installations made by a Licensee holding only a Developer 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 Software in either one (1) SaaS Application or one (1) web application as set out herein and specified in the License Statement, Licensees only holding a Developer License are under no circumstances authorized to transfer, rent, lease, lend, sell, copy, redistribute, or sublicense any 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.
3.3. OEM License
Through an OEM License, Highsoft grants Licensee 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 a Licensee Product, provided that such Licensee Product be supplied to Third Party through a Customer Installation, with or without Developer Rights, dependent on Licensee’s choice as specified in License Statement. The right to use the Software granted herein shall not be sublicensable except that Licensee may grant its customers the right to install and use the Software as an integral part of a Licensee Product.
The authorization to sublicense Licensed Software under this section 3.3 first paragraph only applies when and as long as such Software lawfully is incorporated with Licensee Product supplied to Third Party in accordance with this Agreement.
Licensee acknowledges, accepts, and undertakes to ensure that the actual number of Developers at any time and the number of Customer Installations, with or without Developer rights, shall not at any time exceed the total number of Developers and Customer Installations stated in the License Statement. Licensee further agrees not to make use of Software products in other (newer) versions than such Release(s) of the Licensed Software which Licensee is entitled to use pursuant to section 3.4. Any breach of this restriction shall be considered a material breach of the Agreement.
Under an OEM License, Licensee may also incorporate Licensed Software into a SaaS Application provided and only to the extent that such SaaS Application has been approved by Highsoft by explicit reference in the License Statement. For the avoidance of doubt, this conditioned right to incorporate Licensed Software in a SaaS Application shall also extend to situations where the SaaS Applications is fully or partly hosted on Licensee’s customer’s own server(s).
Licensed Software may only be incorporated into such Licensee Products and/or SaaS Application(s) as specified in the License Statement.
Licensee shall be prohibited from reselling any Licensee Product, and from granting its customers permission to use the Software, in any manner that contradicts the terms and restrictions of this Agreement or the License(s) granted hereunder.
Highsoft acknowledges and agrees that (i) Licensee retains all rights, title and interest in and to any Licensee Product, and Highsoft does not acquire any right, title, or interest in or to such product; and (ii) any integration of Licensed Software with Licensee Product shall not affect or diminish Licensee’s rights, title, and interest in and to such Licensee Product.
3.4. Advantage – Initial Period, Renewal and Extension
The purchase of a License under this Agreement includes a twelve (12) months enrollment in Highsoft’s Advantage plan commencing on Delivery Date (“Initial Period”). If Licensee wishes to be enrolled in the Advantage plan for a longer period than the automatically included twelve (12) months, Licensee may (a) thereafter successively renew its enrollment in the Advantage plan with one or more twelve (12) months periods (“Renewal”), or (b) already at the time of purchase of License(s) under this Agreement also purchase an extended enrollment in the Advantage plan for up to five (5) years (“Extension”) Both alternatives in (a) and (b) herein subject always to payment of the applicable Advantage Fee according to section 4 below.
The duration of the initial period of Licensee’s enrollment in the Advantage plan will be stated in the License Statement. Any Renewal or Extension by Licensee of its enrollment in Highsoft’s Advantage plan must be made for the complete License and include the same number of Developers and/or Customer Installations (as applicable) as set out in the License Statement. Unless otherwise explicitly agreed, Licensee acknowledges and accepts that by purchasing a Renewal or Extension of its enrollment in Highsoft’s Advantage plan, the enrollment in the Advantage plan and the License to which the Advantage relate shall be governed by the most-recent version of Highsoft’s Standard License Agreement as amended from time to time by Highsoft.
Under a valid and effective enrollment in Highsoft’s 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 24 hours on working days, CET (CEST) after the request was received,
- Access to 2nd line support by core developers,
- Online text chat with 1st line support engineers, working days 10-18 CET (CEST),
- 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, 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 the period in which Licensee is validly enrolled in Advantage, Highsoft will provide support for all Releases of Licensed Software released within that time period.
Advantage does not cover issues arising in connection with implementation of Licensed Software in/to Licensee’s own products.
Advantage as set forth in this section, shall not extend to any Third Parties to which Licensee distributes Licensee Products 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.
4. License and Advantage Fee, Subsequent Advantage Fee(s)
Licensee shall upon purchase pay the agreed License Fee covering the purchase of Licensed Software and the automatically included twelve (12) months enrollment in Highsoft’s Advantage plan. For any Extension of Advantage, or for each subsequent twelve (12) months Renewal of enrollment in the Advantage plan, Licensee shall pay the Advantage Fee applicable at the time of purchase of Extension or Renewal, as applicable.
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.
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 Renewal/Extension, 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 Extensions or subsequent Renewals of 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 Software from Highsoft Website. As set forth in sections 3.1 and 3.4 above, new Releases of Licensed Software after the initial twelve (12) months period shall not be available to Licensee unless additional Advantage period(s) is purchased in advance upon the purchase of License, or without additional purchase of a renewal of the corresponding Advantage.
Licensee may use Licensee’s own descriptions of the functionality provided by Licensed Software for the purposes of marketing Licensee Products 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, as is reasonably necessary in order to describe and promote the Software or Licensee’s Product(s), as applicable. Further, Highsoft shall have the right to name Licensee as a reference and to use Licensee’s testimonials and use cases, including but not limited to publicly available charts which includes Licensed Software, for the purposes of promoting, illustrating or demonstrating the Software.
Notwithstanding the above, nothing in this section 6 shall include or imply any right for any Party to disclose any Confidential Information.
Licensee agrees to conduct its business with the highest standards and will do nothing to injure Highsoft’s reputation.
7. Warranties and Representations
Highsoft's warranties and representations in this section 7 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 Wrappers and Add-ons or Optional Dependencies .
7.2. Highsoft's warranties and representations
Highsoft warrants and represents that:
For a period of ninety (90) days following its Delivery Date, 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,
Highsoft will perform its obligations under this Agreement in accordance with all applicable laws and regulations,
Highsoft has the full and unconditional ownership of Software,
This Agreement does not infringe 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 contemplated 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 7.2 "Harmful Codes" is 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.
7.3. Licensee's remedies
In the event of breach, or alleged breach of any of the warranties in section 7.2, 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 7.2. The warranties shall not apply if Licensee has modified, or used 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.
8. 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 7.
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 pursuant to sections 3.2 and/or 3.3 of this Agreement 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, 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 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.
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.
9. 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 15.8;
- 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 solely in the event that (i) and (ii) are not feasible, (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 9 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 9.
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 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.
This confidentiality section 10 shall survive any termination of the Agreement however occasioned.
11. Term and Termination
This Agreement shall stay in force for twelve (12) months from Delivery Date and thereafter for as long as Licensee is actively enrolled in Advantage pursuant to sections 3.4 and 4.
Either Party may terminate this Agreement in the event of a material breach of this Agreement by the other Party. Upon Highsoft’s termination for material breach by Licensee, Licensee shall immediately cease use and distribution of Licensed Software.
The termination or expiration of this Agreement shall not impair any license-, sublicense- or maintenance obligations already granted or undertaken by Licensee towards Third Party regarding Licensed Software lawfully incorporated into Licensee Product pursuant to OEM License under this Agreement. In such case, upon termination or expiration of this Agreement, Licensee may continue to exercise the rights granted hereunder to the extent necessary to fulfill such already existing contractual obligations that Licensee has towards such Third Party. For the avoidance of doubt, this extended right to exercise rights under the Agreement, when Licensed Software lawfully has been incorporated into Licensee Product pursuant to OEM License under this Agreement, shall not apply where Licensed Software has been incorporated into a SaaS Application, in which case usage rights and other rights under the Agreement shall expire according to the ordinary rules set out in the paragraph below.
On termination or expiration of this Agreement, Licensee shall immediately cease all use and distribution of Licensed Software, except for Releases to which Licensee has gained perpetual rights pursuant to sections 3.2 and/or 3.3. Further 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 cf. section 10, except for information required to support any license, sublicense or maintenance obligations already granted or undertaken by Licensee towards any Third Party as described in the preceding paragraph. A written confirmation that such deletion has been completed shall be sent to the other Party without undue delay.
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, Licensee shall notify Highsoft 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.
13. 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.
14. Processing of Personal Data
On termination or expiration of this Agreement, for whatever reason, sections 2, 8, 10 and 13 shall survive.
15.2. Relationship Between Parties
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, or as providing either Party with the right, power, or authority (express, or implied) to create any duty or obligation of the other. 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 section 3 (including subsections). 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 breach 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.
No amendment to, or modification of this Agreement shall be binding unless made in writing and signed by Parties. 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 Highsoft, or by or on behalf of Licensee at the request of Highsoft, shall be void, and of no force or effect to the extent such are in breach of or contradiction with this Agreement.
15.7. 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.
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 Highsoft at the stated address.