Sherpas Master Software Subscription Agreement
helpdesk
Sherpas Master Software Subscription Agreement
END USER LICENSE AGREEMENT, MAINTENANCE AND SUPPORT AGREEMENT REGARDING SOFTWARE PRODUCTS DEVELOPED AND MARKETED BY SHERPAS GROUP AB
This Sherpas Group AB Master Software Subscription Agreement (together with the Order referred to as the "Agreement") constitutes a binding legal agreement between the End User or Customer (the “Licensee”) specified on the applicable ordering document or accepted quote (the “Order”) and Sherpas Group AB, reg.no. 556719-3015, Skeppargatan 23, 93129 Skellefteå (each a “Party” and collectively, the “Parties”) with regard to (i) Licensee use of the proprietary software defined in the Order with this Agreement, (ii) any updates provided by Sherpas Group AB to Licensee (collectively, the “Software”), (iii) any standard installation materials, specifications, and system documentation relating to the Software made available by Sherpas Group AB to Licensee (“Documentation”), and (iv) the provision of maintenance, support and other related services by Sherpas Group AB. By accepting and signing the Order in connection with licensing the Software and purchase of related services, Licensee accepts the terms and conditions of this Agreement. Natural persons who have entered into this Agreement represents and warrants that the execution, delivery, and performance of the Order and this Agreement on the Licensees behalf has been duly authorized by the Licensee.
To the extent that Licensee or an employee of Licensee is accessing the Software through a license granted to its organization or employer, the use of the Software is subject to the terms and conditions of this Agreement, order form or document, accepted quote, or other applicable written agreement between such organization and Sherpas Group AB, including without limitation the applicable number of licensed users and Software Subscription Fees. In the event of any conflict between the terms of this Master Software Subscription Agreement and the Order, the terms and conditions of the Order shall prevail.
Sherpas Group AB owns the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold.
Subject to compliance with all of the terms and conditions of this Agreement and payment of Software Subscription Fees set forth in the Order, Sherpas Group AB hereby grants to Licensee, a non-transferable, non-exclusive license to use the Software during the Term (a) in object code form for internal use within its business, (b) in accordance with any licensed client, volume and/or other limitations set forth in the Order for the Software prepared for Licensee by Sherpas Group AB or an authorized Sherpas Group AB reseller or distributor (“Reseller”), and (c) in accordance with the associated Documentation. Licensee may make a single copy of the Software for safekeeping or "backup" purposes, provided all original proprietary notices are retained on any such copy. This License is for Licensee’s internal use only; Licensee may not assign the license to any third party for any reason whatsoever.
The Licensee may not modify or create derivative works based upon the Software. Except to the extent expressly permitted by applicable law, and to the extent that Sherpas Group AB is not permitted by applicable law to exclude or limit the following rights, the Licensee may not decompile, disassemble, reverse engineer or otherwise attempt to derive source code from the Software, in whole or in part. For clarification, Licensee shall be responsible for any of its employees or representative who is assigned to use the Software under this Agreement.
If applicable, Sherpas Group AB will electronically deliver to Licensee the Software listed in the Order, along with related installation instructions and Documentation as would be normally made available by Sherpas Group AB in connection with the Software promptly after execution of the Order. If not otherwise agreed in the Order, all Software products included under the applicable Order are to be installed by the Licensee.
The Software Subscription Fee set forth in the Order will be invoiced to Licensee thirty (30) days before the end of each Term and shall be paid for each Term in advance. For clarification, the Software Subscription Fee for the Initial Term shall be invoiced to the Licensee upon the execution of this Agreement.
For Support Service hours Sherpas Group AB will charge the Licensee the hourly rates set out in the standard Sherpas Group AB’s price list applicable from time to time. Any Support Services under this Agreement which has been established by Sherpas Group AB, in its sole discretion, to be related to an error in the Software causing it to fail to operate substantially in accordance with the accompanying Software Documentation (“Defect”), will be conducted free of charge by Sherpas Group AB.
The Software Subscription Fee may be increased due to increases in (a) labor costs which shall be tied to the Labour Cost Index for officials (LCI) preliminary index, SNI2007 – code J – Information and communication (Sw. Labour Cost Index för tjänstemän (LCI tjm) preliminärt index, SNI2007 – kod J – Informations- och kommunikationsverksamhet) maintained by Statistics Sweden (Sw. Statistiska Centralbyrån) and/or (b) increases in costs for hardware, sub-consultancy services, currency fluctuations, taxes and charges, and other actual increased costs for Sherpas Group AB directly or indirectly attributable to Sherpas Group AB´s fulfilment of its obligation under this Agreement. Should (a) the calculated index and/or (b) the actual costs at the end of each Term have increased compared to at the end of the previous Term, the Software Subscription Fee shall be adjusted in proportion to such increase(s). The Software Subscription Fee so adjusted shall apply for the next succeeding Term after which a new adjustment shall be made – and so forth.
Licensee will pay to Sherpas Group AB or Licensee’s Reseller (as applicable) all invoices related to the Software Subscription Fee and any other fees for use of the Software and related services within thirty (30) days of the date of the invoice. Sherpas Group AB has the right to charge an invoice fee of SEK 25 per invoice. In case the Licensee fail to make payments in time the following shall apply. Overdue amounts are subject to a penalty interest charge of the lesser of one percent (1%) per month and the maximum permitted by law. In addition, Sherpas Group AB or Reseller, as applicable, shall be entitled to charge the Licensee statutory reminder fees, collection fees and comparable fees applicable from time to time.
Except as explicitly stated in this Agreement, the Licensee will be responsible for all fees related to hosting (i.e. Azure etc) or other third party fees related to the use of the Software and all taxes and charges with respect to the Software.
With respect to electronic and other Documentation, Licensee may make any number of copies (either in hard copy or electronic form) provided that such copies shall be used only for internal purposes and are not republished or distributed externally.
Sherpas Group AB agrees to provide to Licensee software maintenance and support services according to this section in the Agreement, namely (i) making available to Licensee updates and/or enhancements generally made available to Sherpas Group AB’s customers from time to time, if any, and (ii) technical support, on an as-needed basis, to two (2) Technical Contacts designated by the Licensee, for the sole purpose of addressing technical issues relating to the use of the Software, which may include online technical support, and phone technical support when deemed appropriate at the sole discretion of Sherpas Group AB, but which exclude any on-site technical support by Sherpas Group AB personnel, agents or subcontractors (collectively referred to as the “Maintenance and Support Services”). Without limiting the generality of the foregoing, any requests by Licensee for additional features or functionality that fall outside of Sherpas Group AB’s ongoing policy of updating and/or enhancing the Software are excluded from Maintenance and Support Services.
Software Support is provided between 08:00 to 16:30 during Monday through Friday, save for Swedish Public Holidays and Trettondagsafton, Skärtorsdag, Pingstafton, Midsommarafton, Allhelgonadagen, Julafton and Nyårsafton, other days which are closed pursuant to a collective bargain agreement with the employee organization and/or until 12:00 CET day before Public Holiday (“Business Hours”).
The Support request must be made by the Licensee named Technical Contact to whom has the right to contact the Sherpas Group AB’s Helpdesk via e-mail, helpdesk@sherpas.se or phone (+46 910-508 25).
Sherpas Group AB’s Helpdesk will start handling the Support request within four (4) Business Hours after proper Support request was submitted by the Technical Contact.
Back-Ups: Licensee acknowledges that it is solely responsible for ensuring that adequate back-ups are made.
Licensee is responsible for properly testing and applying routine virus updates and security patches without the need for additional Sherpas Group AB notification.
Current Software Version: If requested by Sherpas Group AB, Licensee must upgrade the Software in its entirety to the most recent released version of the Software. Sherpas Group AB may decline a request for technical support for a Software version that is not the most recent released version.
Sherpas Group AB may refuse to provide technical support related to (i) Licensee data; or (ii) use of the Software by the Licensee not according to the Software Documentation. Licensee agrees that the hardware on which the Software operates will be operating properly at all times and must have been and continue to be properly maintained by the manufacturer of the hardware or a properly qualified service organization.
Corrections for difficulties or defects traceable to Licensee ’s errors or unauthorized changes, Licensee ’s hardware or cloud infrastructure and software, or conflicts with other software not identified by Sherpas Group AB as compatible or part of the recommended operating environment are excluded from the Maintenance and Support Services and may be subject to billing at Sherpas Group AB’s then-current standard time and material charges. In addition, Sherpas Group AB reserves the right to charge Licensee for any cost in relation to Licensee reporting a Defect of which Sherpas Group AB is not responsible for under this Agreement.
This Agreement enters into force upon one of the following events, whichever occurs first: a) when the Licensee signs the Order or b) when the Licensee start using the Software by installing the Software.
This Agreement shall continue in full force and effect until the end of the current calendar quarter after this Agreement entered into force (“Initial Term”) and shall thereafter, if not terminated in accordance with this section, continue in full force during one (1) quarter at the time. The Initial Term and each successive term are individually defined as “Term”.
The Licensee may terminate this Agreement by giving Sherpas Group AB at least one (1) month written notice prior to the end of each Term. Sherpas Group AB may terminate this Agreement by giving the Licensee twelve (12) months written notice prior to the end of each Term.
Sherpas Group AB has the right to immediately terminate the Licensee’s rights under this Agreement, in whole or in part, including the License to use the Software if the Licensee (or any user assigned by Licensee) breach any provision of this Agreement, in particular if the Licensee fail to pay any fees stipulated in the Order or this Agreement. Sherpas Group AB is, in case of a breach, obligated to notify the Licensee in writing, and give the Licensee reasonable time to correct such breach before terminating this Agreement. Termination for breach shall not alter or affect Sherpas Group AB’s right to exercise any other remedies for breach.
Upon termination of the License, Licensee must permanently delete all copies of the Software under its control or in its possession, and upon request by Sherpas Group AB, must provide a written confirmation of such deletion.
Licensee will promptly notify Sherpas Group AB of any infringement or attempted infringement of Sherpas Group AB’s rights in the Software of which it becomes aware. Licensee will actively cooperate with Sherpas Group AB in any action that Sherpas Group AB may undertake to protect any of its rights in connection with the Software.
Licensee must defend or settle, at its own expense, any action brought against Sherpas Group AB based upon the claim that any modifications to the Software or combination of the Software with other products infringes or violates any third party right; provided, however, that (i) Sherpas Group AB shall notify Licensee promptly in writing of any such claim; (ii) Sherpas Group AB shall not enter into any settlement without Licensee 's prior written consent; (iii) Licensee shall have control of any such action and settlement negotiations; and (iv) Sherpas Group AB shall provide Licensee with information and assistance to settle or defend such claim. Licensee agrees to pay all damages and costs finally awarded against Sherpas Group AB attributable to such claim.
Sherpas Group AB may decline to defend any action against Licensee brought by a third party based upon a claim that the Software infringes any right of such third party.
Sherpas Group AB warrants that the Software shall be free from Defects for a period of ninety (90) days after the date of delivery of the Software (the “Limited Warranty”). Sherpas Group AB is, however, not responsible for Defects in the Software that are due to
This Limited Warranty is the only express warranty made to the Licensee and is provided in lieu of any other express warranties (if any) created by any documentation or packaging. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Sherpas Group AB and its partners provide the Software on an as is basis with all faults and hereby disclaims all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties or conditions of merchantability, of fitness for a particular purpose, of lack of viruses, of accuracy or completeness of responses, of results, and of lack of negligence or lack of workmanlike effort, all with regard to the Software and the provision of or failure to provide Support services. Further, there is no warranty or condition of title or non-infringement with regard to the Software.
Licensee shall not assign this contract or Licensee ’s rights hereunder without the prior written consent of Sherpas Group AB. Notwithstanding the foregoing, Licensee may transfer this license without the consent of Sherpas Group AB (i) to a wholly owned subsidiary, provided that by doing so Licensee shall be deemed to have agreed to indemnify Sherpas Group AB for any loss that it suffers as a result of the transfer, or (ii) to such entity that acquires all or substantially all of the business and assets of Licensee . Any purported assignment without the required consent shall be null and void. As a condition of obtaining consent, Licensee may have to pay a transfer fee.
“Confidential Information” means any material, data, or information in whatever form or media of a Party to this Agreement that is provided or disclosed to the other, except for any information that is:
a) publicly available or later becomes available other than through a breach of this Agreement;
b) known to the Licensee or its employees, agents, or representatives prior to such disclosure or is independently developed by the Licensee or its employees, agents, or representatives subsequent to such disclosure; or
c) subsequently lawfully obtained by the Licensee or its employees, agents, or representatives from a third party without obligations of confidentiality.
The Licensee that has received Confidential Information shall exercise the same degree of care and protection with respect to the Confidential Information of Sherpas Group AB that it exercises with respect to its own Confidential Information and in any event, at least diligent and prudent care. The Licensee shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of Sherpas Group AB. Notwithstanding the above, either Party may disclose Confidential Information if so required by law (including court order or subpoena), provided that such disclosure is notified in time to Sherpas Group AB to permit it to seek confidential treatment of its Confidential Information. The Licensee shall exercise its best efforts to preserve the confidentiality of the Confidential Information including, without limitation, by cooperating with Sherpas Group AB to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information.
Except in accordance with the License, Licensee shall not copy, duplicate, reverse engineer, decompile, disassemble, record, alter, merge, adapt, translate, create any derivative works, or otherwise reproduce any part of the Software or Confidential Information, nor attempt to do any of the foregoing, without the prior written consent of Sherpas Group AB. Any tangible embodiments of the Software or Confidential Information that may be generated by Licensee, either pursuant to or in violation of this Agreement, will be deemed to be the sole property of Sherpas Group AB and fully subject to the obligation of confidentiality.
For any breach of this Agreement, Licensee ’s exclusive remedy and Sherpas Group AB’s entire liability is, at Sherpas Group AB’s option, either the correction of the Defects in the Software, re-performance of the service (if the breach arises out of Sherpas Group AB’s service), or recovery by the Licensee of a part of the amount paid that reasonably relates to the breach, subject to the limitations set out below. Sherpas Group AB is not liable for any indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of revenues, profits, goodwill, use, data, failure to realize expected savings, or other intangible losses (even if Sherpas Group AB has been advised of the possibility of such damages), resulting from the Licensees use of the Software. To the extent permitted by law, Sherpas Group AB’s liability to the Licensee in connection with any cause of action, costs or damages relating to this Agreement shall not exceed the total fees paid in the 12-month period preceding the event giving rise to the claim.
Nothing in this Agreement will create or imply an agency relationship between Sherpas Group AB and Licensee, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
Sherpas Group AB may reproduce, display and use Licensees trade-marks and trade-names for the limited purpose of advertising Licensee ’s use of the Software in any of Sherpas Group AB’s promotional materials, unless or until Licensee notifies Sherpas Group AB in writing via email that Licensee does not agree to let Sherpas Group AB repro duce, display and use Licensee ’s trade-marks and trade-names for such purpose.
Licensee may not reproduce, display, or use Sherpas Group AB trademarks and tradenames without the prior written consent of Sherpas Group AB.
The Licensee acknowledges that the Software and all intellectual property rights pertaining to the Software are the property of Sherpas Group AB and that the structure, organization, and code of the Software are valuable trade secrets of Sherpas Group AB. Licensee must not export the Software into a country that does not have copyright laws that will protect Sherpas Group AB’s proprietary rights. Licensee agrees to use reasonable effort to prevent and protect the Software from unauthorized use, reproduction, distribution, or publication. Licensee shall not remove or obscure any Sherpas Group AB copyright or trade-mark notices.
This Agreement shall be governed by the substantive law of Sweden without reference to conflict of law principles. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce. The seat of arbitration shall be Stockholm. Notwithstanding the provision of this section, Sherpas Group AB is entitled to refer to a Swedish public court or the Swedish Enforcement Authority any claim for payment of outstanding License fees.
Except as expressly provided otherwise in this Agreement, dates and times by which a party is required to render performance under this Agreement shall be automatically postponed to the extent and for the period of time that such party is prevented from meeting them by reason of an unforeseeable and irresistible event, including external causes with the same characteristics, provided the party so prevented promptly notifies the other party of the commencement and nature of such event or cause and the probable consequences thereof.
This Agreement is the complete and exclusive statement of the parties’ agreement relating to the subject matter hereof and supersedes all offers (oral or written), understandings, representations, conditions, warranties, covenants, and other communications between the parties relating hereto.
No waiver by either party of any default in performance on the part of the other party will constitute a waiver of any subsequent breach or default by the defaulting party.
Sherpas Group AB reserves the right, in its sole discretion, to change the terms of this agreement upon notice to Licensee.
Skellefteå (Huvudkontor)
Skeppargatan 23, 931 29 Skellefteå
Växel: 0910-508 00
Stockholm
Växel: 08-622 26 00
Support: 0910-508 25
Support: helpdesk@sherpas.se
E-post: info@sherpas.se