1 openqrm Enterprise Server and Client Licenses Agreement (1) This openqrm Enterprise Server and Client License Agreement ( Agreement ) is by and between openqrm Enterprise GmbH, Berrenrather Strasse 188c, Cologne, Germany, and the Customer as identified on the Order Form on the use of openqrm Software. (2) openqrm Software is a client-server-based platform to manage and automate complete Datacenter Workflows. (3) This Agreement and its annexes shall form the entire Agreement. Conflicting or deviating Customer conditions do not apply, even if openqrm Enterprise GmbH grants licenses in full knowledge of Customer's general terms and conditions. 1. Definitions For the purpose of this Agreement, the following terms shall have the respective meanings below: Client means a physical Computer System which is integrated into and managed by an openqrm Server. Order Form means the applicable openqrm Enterprise GmbH paper based or electronic order form document. Server means each a physical Computer System or a Virtual Machine which actively or passively (in case of a High-availability Setup with two or more Servers) runs the openqrm Base Software providing the openqrm Management User Interface. The openqrm Server manages Clients. Software means the program code of openqrm Enterprise Software that consists of Server Software and Client Software in any form as described in the Order Form and the Software Description, all updates, as well as all documentation linked to the program in question, which are licensed under this Agreement. It is immaterial whether the relevant program code is independently executable or is only a subroutine, a non-standalone program module or a comparable utility program. Updates means patches or releases for maintenance purposes and may include non-significant improvements or functional supplements (e.g. additional drivers). 2. Offers and Contract (1) Customer may order the Server and/or Client Licenses via an Order Form that is provided for download and electronically on the relevant website of openqrm Enterprise. The submittance of an Order Form by the Customer to openqrm Enterprise GmbH shall be considered a binding offer on the part of the Customer. -1
2 (2) The contract is concluded upon the receipt of an electronic order confirmation of openqrm Enterprise GmbH (e.g. via ) by the Costumer that contains a link to the download area of the relevant website of openqrm Enterprise GmbH. 3. Scope and Parts of the Agreement This Agreement governs the licensing of openqrm Enterprise Software and is subject to the terms and conditions of this Agreement. Integral parts of this Agreement by reference thereto are in the following order - Order Form - this Agreement - Software Description and - Price List, as amended. 4. Grant of Rights (1) Server License openqrm Enterprise GmbH hereby grants to Customer the worldwide, non-exclusive, non-transferable right, without limitation in time, to use especially to copy, install and run the Server Software on the number of Servers licensed and to revise, modify or edit the Software for the purposes described in the Software Description, subject to the payment of the agreed one-time Server License fee and to the terms and conditions of this Agreement. (2) Client License If the Customer wants to install and run the Client Software on a Client, Client Licenses must be acquired. Customer may simultaneously install and run the Client Software on the number of Clients corresponding to the number of paid and valid Client Licenses. (3) It is explicitly prohibited to revise, modify or edit the Software in order to circumvent or in any other form manipulate a license check. (4) Unless specified in this Agreement no other rights to use or exploit the Software are granted to the Customer. Customer has, in particular, no right to sell, lease, let, sublicense or to distribute the Software or modify, edit or revise the Software in any way. (5) Insofar as openqrm Enterprise provides the Customer with third party software, specific terms and conditions of the respective licensors may apply to the use of such software. 5. Delivery
3 Software is made available for download at the download area of the relevant website of openqrm Enterprise GmbH. 6. Audit Rights Customer undertakes to allow openqrm Enterprise GmbH or an agent of openqrm Enterprise GmbH to audit whether Customer s use of the Software is consistent with the rights to Customer herein upon request by openqrm Enterprise GmbH and provided there is a legitimate interest therein. Customer will give full co-operation to openqrm Enterprise GmbH or its agent carrying out such audit. Customer shall bear the costs of the audit, provided that the audit determines that Customer has underpaid fees for the period audited in the excess of five percent (5%) of the proper amount owed to openqrm Enterprise GmbH. 7. License Fees (1) Customer has to pay a one-time license fee for each Server License and the fees for the Client Licenses as set forth in the relevant Price List. Unless otherwise stated, all prices are net prices and subject to value added tax at the statutory rate. (2) If an Audit as set forth in Section 6 determines that Customer has at any time of the audited period run the Software on Servers or Clients that exceed the maximum number of Server or Client licenses granted to Customer under this Agreement, openqrm Enterprise GmbH may charge the applicable additional license fees covering so arising at the rates in the relevant Price List as from the first date of the respective exceeding use. Additional Server and Client Licenses shall be deemed to be granted on full payment by the Customer of the applicable additional license fees. (3) License fees and other charges from openqrm Enterprise GmbH are due when invoiced and payable within 14 calendar days of the receipt of invoice by the Customer without deduction on the account stated in the invoice. In case of a delay in payment, openqrm Enterprise GmbH is entitled to charge interest on arrears at 8 %-points (eight percentage points) above the base interest rate. 8. Term and Termination of Client Licenses (1) The term of a Client License starts with the activation of the respective Client License by openqrm Enterprise and expires automatically at the end of the relevant paid license period, without notice. (2) The right to terminate a Client License for cause remains unaffected. A reason, which entitles openqrm Enterprise GmbH to a termination for cause, is given in particular if Customer (a) fails to perform any of its -3
4 material contractual obligations, in particular makes use of the Software in breach of this Agreement, and, provided that where such breach is capable of remedy, fails to remedy such breach within 30 days of being notified of such breach by openqrm Enterprise GmbH; or (b) files a petition in insolvency or has such a petition filed against the Customer (which petition is not discharged within 30 days after filing) or is subject to an insolvency proceeding or a proceeding giving protection against creditors. 9. Warranty (1) openqrm Enterprise GmbH warrants that the Software is substantially in accordance with the specifications as set forth in the Software Description and free from third party rights, which prevent the use of the Software in accordance with this Agreement. (2) Precondition for any warranty claim of the Customer is Customer's full compliance with all requirements regarding inspection and objection of the Software provided for in Section 377 HGB (German Commercial Code). (3) Rights in case of defects shall be excluded in the case of minor or immaterial deviations from the specifications or in the case of just slight impairment of use. Material defects and defects of title shall be remedied by openqrm Enterprise GmbH in reasonable time after being reported to openqrm Enterprise GmbH. Defects shall be remedied by making free subsequent repairs or a free substitute delivery, at openqrm Enterprise GmbH s sole option, in particular by supplying, transmitting or providing an Update or by notification of a work-around. (4) Defects must be notified in writing or electronically (e.g. via ) with a comprehensible description of the error symptoms, as far as possible evidenced by written recordings, hard copies or other documents demonstrating the defects. The notification of the defect should enable the reproduction of the defect. This shall not affect the statutory obligation of openqrm Enterprise GmbH to inspect and notify defects. (5) Updates are provided at openqrm Enterprise GmbH s sole discretion to the Customers for downloading from the relevant website. openqrm Enterprise GmbH will inform Customer in written form or electronically (e.g. via ) about new updates that are ready for downloading and will provide Customer with relevant access data required for logging onto the website, if necessary. Instead of an opportunity to download Updates, openqrm Enterprise GmbH may provide Updates to the Licensee on a suitable data carrier. (6) openqrm Enterprise GmbH does not accept any warranty claims for any defects caused by revision, modification or editing of the Software or improper, incorrect or unauthorized use of the Software, especially in the case of improper, incorrect or unauthorized combination with other software or hardware.
5 (7) openqrm Enterprise GmbH does also not accept warranty claims, if the defect is caused by hardware or software that has not been supplied by openqrm Enterprise GmbH or if Customer does not make use or does make improper or incorrect use of Updates provided by openqrm Enterprise GmbH. (8) Any warranty shall be valid for a period of (12) twelve months as of the date the Customer was granted the right to use the Software according to Section 4.1 of this Agreement. (9) Any claims for damages are subject to the limitations set forth under Section 10 of this Agreement. 10. Liability (1) openqrm Enterprise GmbH shall be liable under the statutory provisions if Customer raises claims for damages based on a wilful act or gross negligence. (2) In the case openqrm Enterprise GmbH is blamed for a minor negligent breach of a principal contractual duty, the fulfilment of which alone makes proper implementation of the contract possible, and the breach of which jeopardises the achievement of the contractual object, and on observance of which the Customer may duly rely, liability of openqrm Enterprise GmbH in damages will be limited to the predictable, typically occurring damage. (3) Liability for loss of data is limited to the typical recovery expense that would have been incurred in case of a regular and risk-adequate storage of data on backup copies by the customer. (4) Liability for culpable loss of life, bodily injury or impaired health and liability under the Product Liability Act remains unaffected. (5) Insofar as the liability of openqrm Enterprise GmbH is limited, this also applies to the personal liability of openqrm Enterprise GmbH s employees, staff members, representatives and servants. (6) Unless stipulated otherwise above, any liability of openqrm Enterprise GmbH is excluded. 11. Confidentiality Each Party will treat as confidential beyond the license term with respect to third parties all items of information, business transactions, and documents that become known to the party in connection with the execution of this Agreement and that have been classified as confidential or by its nature are considered to be confidential ( Confidential Information ). The use of such information shall be limited solely to the scope of this Agreement. A Party will not disclose Confidential Information -5
6 to any third person except, (a) with the written consent of the other Party, (b) if and to the extent required to do so by Law, (c) to its financial or legal advisers in confidence for the purpose of obtaining advice. The Parties will also impose this obligation on their employees and any third parties that have been involved. The obligation to maintain confidentiality shall not apply to information that the Party has proven to have received or to receive lawfully from third parties or that was generally known before the offer was awarded, or has subsequently become known without violating the obligations contained in this Agreement, developed independently of the other Party without using the knowledge gained from this contractual relationship. 12. Final Provisions (1) All agreements adding to or changing this Agreement will be recorded in writing. (2) Details or specifications of the Software on websites, in prospectuses, in the Software Description or in other documents only serve as a description and do not constitute a guarantee, in particular they constitute no guarantee of condition. Guarantees require express confirmation by openqrm Enterprise GmbH in writing. (3) Where this Agreement stipulates the written form, this exclusively means the written form pursuant to 126 BGB. (4) openqrm Enterprise GmbH shall have the right, to make use of subcontractors as long as such use is not contrary to the legitimate interests of the Customer. (5) Customer has no right to retention or to set off, unless the counterclaim is legally established or undisputed. (6) The contractual relationship of the Parties is governed by German law. Exclusive venue is Cologne, Germany. However, openqrm Enterprise GmbH is entitled to sue the Customer at Customer s place of business. The latter does not apply if a deviant, compulsive statutory exclusive venue exists. (7) Should provisions of this Agreement be or become invalid or should a loophole emerge in them, the validity of the other provisions will not be affected thereby. The invalid provisions or loophole in this Agreement will be replaced by an appropriate arrangement that comes as close as possible to what the Parties appear to have intended according to the spirit and purpose of the contract. Cologne, 1 June, 2012 Copyright 2012 by openqrm Enterprise GmbH