These license terms (the “Agreement”) are an agreement between K3 Software Solutions B.V. with its principal place of business at Gildeweg 9c, 2632 BD, Nootdorp, The Netherlands (“K3”) and you. Please read this Agreement carefully. This Agreement applies to the software named above including the MICROSOFT DYNAMICS NAV software products incorporated into such software (the “Solution”), and also the media on which you received the Solution, if any. This Agreement also applies to any
- Internet-based services, and
- support services
in respect of the Solution or any part of it supplied to you by K3 or Microsoft, unless other terms accompany any such items or services and are supplied to you directly by K3 or Microsoft. If so, those other terms shall apply in respect of the items or services that they accompany and shall constitute a contract separate from this Agreement between you and the relevant K3 or Microsoft entity named in such terms. For the avoidance of doubt, this Agreement shall no longer apply and K3 shall no longer have any obligations or liability to you in respect of such items or services. Except to the extent provided by the previous two sentences, this Agreement shall supersede the license terms embedded in any software comprised in the Solution.
By installing, having installed, subscribing to, or using the Solution, you accept this Agreement (including any modifications made to them from time to time). If you do not accept this Agreement, do not install, have installed, subscribe to, or use the Solution.
If an individual enters into this Agreement on behalf of a company or other legal entity, that individual represents that he or she has the authority to bind that entity to this Agreement.
Notice Regarding Subscription Validation. Servers on which the Solution is installed may periodically provide information to verify that the Solution is properly licensed and that the term has not expired. This information includes the customer subscription identifier, product name, license serial number, product version number, and date of last use. Individual customer data will be stored for up to 270 days in the United States and EEA. Aggregated data may be used to evaluate the effectiveness of the validation features, will also be stored in the United States and EEA and may be retained indefinitely. By using the Solution, you consent to the transmission of the information described in this paragraph.
K3 may change this Agreement at any time and from time to time by written notice to you. For example K3 may make any changes that are required as the result of or in connection with (i) any law applicable to K3 and/or Microsoft or (ii) any claim that the Solution (or any part of it) infringes the intellectual property or other proprietary rights of any third party. You agree to be bound by and comply with this Agreement as amended by such changes.
If you comply with this Agreement, you have the rights below for each licence you acquire for the Solution.
- The Solution may include
- server software;
- client software that can be installed on devices and/or used with the server software;
- additional ERP components that may be separately licensed; and
- any fixes, patches, supplements or updates for such software or components.
- The Solution is licensed based on
- the number of copies of the Solution that you install on premises or use on a hosted basis;
- the number of your users that access the Solution. It is a condition of your licence of the Solution that you have the same number and type of licences for the K3 software comprised in the Solution as you are required to have in order lawfully to use any Microsoft software in conjunction with which the K3 software comprised in the Solution operates; and
- additional ERP components you license.
- License Model. The Solution is licensed under two models:
- Perpetual License Model– Under this model, you have licensed the Solution under perpetual license terms, as code that is installed on your premises or hosted for you by a third party acting as your agent (“Perpetual License Model”).
- Subscription License Model– Under this model, you have licensed the Solution on a per user basis for a limited period, as further described in your agreement with your Partner. The Solution may be installed on your premises with day to day management and control solely by your Partner, or hosted by your Partner or any third party providing services to you (“Subscription License Model”).
- If your license expires or terminates, your right to use the Solution will stop immediately. If you continue using any of the software comprised in the Solution after that, you could be held liable for infringement of intellectual property rights, which could result in significant damages being assessed against you or other legal remedies.
- “Additive SAL” means a SAL that must be used in conjunction with a base SAL.
- “Affiliate” means any legal entity that directly or indirectly owns, is directly or indirectly owned by or that is directly or indirectly under common ownership with a party to this Agreement.
- “business process outsourcing” means the contracting of a specific critical or non-critical business task, function or process to a third-party service provider, where the services provided include direct or indirect access to the Solution.
- “CAL” means client access license.
- “Client software” means the software forming part of the Solution that allows a single personal computer, workstation, terminal, handheld computer, personal digital assistant, mobile phone or other electronic device (“device”) to access or use the server software or to use certain aspects of the server software.
- “Direct access” occurs when any user logs on to the Solution through a Microsoft Dynamics client.
- “ERP” means enterprise resource planning.
- “External Accountant User” means a user employed by a third party to access the software comprised in the Solution solely to provide supplemental professional accounting or book keeping services relating to the auditing process.
- “External user” means your customers that are not included in the definition of “you”.
- “Full User” means a user who has unrestricted access to all of the functionality in the server software including setting-up, administering and managing all parameters or functional processes across the Solution.
- “Instance” means an image of the Solution that is created by executing the Solution’s set up or install procedure or by duplicating an existing Instance.
- “Internal business purposes” means managing your business, but not that of an independent third party.
- “Licensing Guide” means the Microsoft Dynamics NAV Licensing Guide current from time to time and currently located at http://go.microsoft.com/fwlink/?LinkID=509810&clcid=0x409.
- “Limited User” means a user who accesses your Solution directly or indirectly for purposes of completing only the tasks described below. Any access beyond these limitations requires a Full User.
- “Read” access to data contained in the Solution through any client; or
- “Write” access through any client accessing the Solution via the Microsoft Dynamics NAV API to a maximum of 3 table objects with the following exceptions:
- limited users are not authorized to write to any of the following tables: General Ledger Entry (table number 17), Permission Set (table number 2000000004), Permission (table number 2000000005) or Access Control (table number 2000000053); and
- any table described in Appendix A of the Licensing Guide as “Limited User Included Tables” do not count towards the 3 table objects. Microsoft may update the Licensing Guide (including Appendix A) from time to time at its discretion to include additional Tables.
- “Microsoft” means Microsoft Corporation and its affiliates.
- “Operating system environment” or “OSE” means all or part of an operating system Instance, all or part of a virtual (or otherwise emulated) operating Instance which enables separate machine identity (primary computer name or similar unique identifier) or separate administrative rights, and instances of applications, if any, configured, to run on the operating system Instance or parts identified above. There are two types of OSE, physical and virtual. A physical hardware system can have one physical OSE and/or one or more virtual OSEs.
- “Ownership” means more than 50% ownership.
- “Partner” means the entity that has a valid channel partner agreement with K3 authorising it to market and distribute the Solution.
- “Physical OSE” means an OSE that is configured to run directly on a physical hardware system. The operating system Instance used to run hardware virtualization software (e.g. Microsoft Hyper-V Server or similar technologies) or to provide hardware virtualization services (e.g. Microsoft virtualization technology or similar technologies) is considered to be part of the Physical OSE.
- “SAL” means subscriber access license.
- “Server” means a physical hardware system capable of running server software.
- “Server Farm” means a single data centre or two data centres each physically located:
- In a time zone that is within four hours of the local time zone of the other (Coordinated Universal Time (UTC) and not DST); and/or
- Within the European Union (EU) and or European Free Trade Area (EFTA).
- “Server software” means the components of the Solution that provides services or functionality on your server.
- “System Administration User” means a user accessing the Solution, solely to install, configure and maintain the server software, including management of user rights.
- “Virtual OSE” means an OSE that is configured to run on a virtual hardware system.
- “You” means the legal entity that has agreed to this Agreement, your affiliates and each of your, and your affiliates’, employees, contractors, agents and suppliers.
- INSTALLATION AND USE RIGHTS
- Server Software. You must purchase a server software licence to use the server software. You may install an unlimited number of copies of the server software to access your Solution. However, you may only use the number of copies that your license key permits. You may not duplicate license keys without K3’s prior written consent.
- Client Software. You may only use the client software with the Solution. You may install an unlimited number of copies of the client software to access your Solution. The client software may be used only by the number of licensed users that your license key permits.
- Additional ERP Components. If additional ERP components are available to you, you must obtain a separate license for each ERP solution if you wish to run an additional ERP component for multiple ERP solutions. For additional information and license restrictions regarding additional ERP components, see the Licensing Guide.
- TYPES OF USER LICENSES. Except as otherwise specified, the types of user licenses for the Solution are as follows:
- Access Licenses (CALs and SALs). In addition to the server software license, you must acquire and assign an Access License to each user that accesses the Solution directly or indirectly. You need an Access License for each user that directly or indirectly accesses the Solution through a third party application. Access licences are specific to the Solution and may not be used with or shared among different Solutions.
Types of CALs. There are two types of CALs: Full CALs and Limited CALs.
- A “Full CAL” is a license that entitles a user to perform the tasks of a Full User.
- A “Limited CAL” is a license that entitles a user to perform only the tasks of a Limited User. You may licence up to 4 Limited CALs per Full CAL.
Types of SALs. There are three types of SALs: Standard SALs, Extended Use Additive SALs, and Limited SALs.
- A “Standard SAL” is a base SAL license that entitles a user to perform Full User tasks across the Solution using all of the functionality included in the Starter Pack. The Starter pack for the Microsoft NAV software comprised in the Solution is described in the Licensing Guide. The Starter pack for the K3 software comprised in the Solution. The Starter Pack for the K3 software comprised in the Solution covers the specific requirements for wholesale companies in the fashion industry (apparel, footwear, sporting goods and accessories) further details of which will be given to you by your Partner.
- An “Extended Use Additive SAL” is a license, additive to the Standard SAL, that entitles a user to perform Full User tasks using the functionality included in the Extended Pack, as described in the Licensing Guide.
- A “Limited SAL” is a license that entitles a user to perform only the tasks of a Limited User.
- “Concurrent CALs” are licenses that allow any user to access the Solution. The number of Concurrent CALs licensed refers to the maximum number of user that may access the Solution simultaneously. You may select the Full CAL or Limited CAL as concurrent CAL types. Concurrent CALs can only be licensed under the Perpetual License Model.
- “User SALs” are licenses that are specific to each user and may not be shared with other users. You may select the Standard SAL, the Extended Use Additive SAL or the Limited SAL as user SAL types. If you select the Extended Use Additive SAL, You must licence Extended Use Additive SALs for all Standard SALs. The Limited SAL grants access to the same set of functionalities that are available to users performing Full User tasks, subject to the restrictions listed in the Limited User definition. You are granted, at no charge two SALs of the same type used by your Full Users; one specifically for an External Accountant User, and one specifically for a System Administration User. You may permanently reassign your user SAL from one user to another. You may temporarily reassign your user SAL to a temporary user while the permanent user is absent. The External Account User and System Administrator User cannot be used for other purposes. User SALs can only be licensed under the Subscription License Model.
- “External Users” You do not need Access Licenses for external users. External users must be designated in the user table for Microsoft Dynamics NAV comprised in the Solution, and cannot use any clients provided by the Microsoft Dynamics NAV Application Programming Interface (API), such as the Microsoft Dynamics NAV 2017 Windows client or Microsoft Dynamics NAV 2017 Web Client. External User licences must not be used for business process outsourcing purposes.
You must ensure you have the same number and type of licences for the K3 software product named above and comprised in the Solution to which this Agreement relates as for the Microsoft Dynamics NAV software products incorporated into such Solution.
Amendments to the number and type of your user licenses many only be made through your Partner.
For additional information about the types of user licenses and the license restrictions regarding user licenses, see the Licensing Guide.
- TERMS SPECIFIC TO PERPETUAL LICENSE MODEL.
- Your rights to use the Solution are perpetual but may be revoked if you do not comply with the terms of this Agreement.
- TERMS SPECIFIC TO SUBSCRIPTION LICENSE MODEL.
- Subscription Validation.
- Servers on which the Solution is installed will from time to time perform a validation check of the Solution. Validation verifies that the Solution has been properly licensed. It also verifies that no unauthorized changes have been made to the validation functions of the Solution.
- The validation check may be initiated by the Solution, Microsoft, Partner or K3. To enable validation checks, the Solution may from time to time require updates or additional downloads of the validation functions of the Solution. The updates or downloads are required for the proper functioning of the Solution and may be downloaded and installed without further notice to you. During or after a validation check, the server may send information about the Solution, the computer and the results of the validation check to K3, Partner and/or Microsoft. This information includes customer subscription identifier, product name, license serial number, product version number, and the date of last use. K3, Partner and Microsoft will use this information only to verify licensing compliance. By using the Solution, you consent to the transmission of this information to K3, Partner and Microsoft for this purpose. For more information about validation and what is sent during or after a validation check, see the Licensing Guide.
- If, after a validation check, the Solution is found to be improperly licensed, K3, Microsoft or your Partner may provide notice that the software comprised in the Solution is improperly licensed, and you may:
- receive reminders to obtain a properly licensed copy of the software comprised in the Solution, or
- need to follow instructions in the notice to be licensed to use the software comprised in the Solution.
- The term for your subscription license is set in your agreement with your Partner.
- ADDITIONAL LICENSING REQUIREMENTS AND/OR USE RIGHTS
- Multiplexing (sometimes referred to as “pooling”) is a manner of indirect hardware or software access (“indirect access”) that:
- pools connections
- reroutes information
- reduces the number of users that directly access or use the software comprised in the Solution, or
- reduces the number of users that the software comprised in the Solution directly manages,
Any user accessing the Solution through a multiplexed connection must be appropriately licensed with an Access License.
- Business Process Outsourcing. You may not use the Solution to provide business process outsourcing services to your clients or customers. You may however make your Access Licences available to business process outsourcers acting on your behalf and providing services to your business.
- License Mobility and Outsourcing Software Management.
- License Mobility. You may reassign your Solution licenses, for which you are under a current maintenance plan, to (i) any servers running Physical OSEs or Virtual OSEs dedicated to you and located within the same Server Farm as often as needed, or (ii) from one Server Farm to another, but not on a short-term basis (i.e., not within 90 days of the last assignment).
- Outsourcing Software Management. You may install and use permitted copies of the Solution on servers and other devices that are under the day-to-day management and control of third parties, provided all such servers and other devices are and remain fully dedicated to your use. You are responsible for all of the obligations under this Agreement regardless of the physical location of the hardware upon which the Solution is used.
- License Grant for Templates. You may copy and use templates provided with the Solution and identified for such use in documents and projects that you create. You may distribute those documents and projects non-commercially.
- Included Software Programs. The Solution contains other software (including Microsoft software) programs. If separate license terms accompany those programs, the licence terms with those components apply to your use of the components, instead of these license terms.
- Microsoft SQL Server-branded Components. The Microsoft Dynamics NAV software comprised in the Solution is accompanied by Microsoft SQL Server-branded components, which are licensed to you under the terms of the respective SQL Server licenses located in the “Licenses” folder in such software’s installation directory. If you do not accept the applicable Microsoft SQL Server-branded component license terms, you may not use that component.
- Microsoft SQL Server Report Builder for Microsoft SQL Server 2014.The Microsoft Dynamics NAV software comprised in the Solution is accompanied by Microsoft SQL Server Report Builder 3.0 for Microsoft SQL Server 2014 (Report Builder), which is licensed to you under its own license terms located in the following installation directory for Microsoft Dynamics NAV: Program Files (x86)\Common Files\Microsoft Dynamics NAV\90\Setup\Licenses. You may use Report Builder only in conjunction with Microsoft Dynamics NAV. If you do not accept the Report Builder license terms, you may not use the Report Builder.
- Microsoft Exchange Web Services Managed API 2.2. The Microsoft Dynamics NAV software comprised in the Solution is accompanied by Exchange Web Services Managed API 1.2 (EWSMA), which is licensed to you under its own license terms located in the following installation directory for Microsoft Dynamics NAV: Program Files (x86)\Common Files\Microsoft Dynamics NAV\90\Setup\Licenses. You may use EWSMA only in conjunction with Microsoft Dynamics NAV. If you do not accept the EWSMA license terms, you may not use the EWSMA.
- Microsoft Chart Controls for Microsoft .NET Framework 3.5 and 4.5 for Microsoft Windows Operating Systems. The Microsoft Dynamics NAV software comprised in the Solution is accompanied by Microsoft Chart Controls for Microsoft .NET Framework 3.5 for Microsoft Windows Operating Systems (Chart Controls), which is licensed to you under its own license terms located in the following installation directory for Microsoft Dynamics NAV: Program Files (x86)\Common Files\Microsoft Dynamics NAV\90\Setup\Licenses. You may use Chart Controls only in conjunction with Microsoft Dynamics NAV. If you do not accept the Chart Controls license terms, you may not use the Chart Controls.
- Microsoft Report Viewer 2015 Runtime. The Microsoft Dynamics NAV software comprised in the Solution is accompanied by Microsoft Report Viewer 2012 Runtime (“Report Viewer”).
- Microsoft SQL Server Reporting Services Map Report Item. Report Viewer may include features that retrieve content such as maps, images and other data through the Bing Maps (or successor branded) application programming interface (the “Bing Maps APIs”). The purpose of these features is to create reports displaying data on top of maps, aerial and hybrid imagery. If these features are included, you may use them to create and view dynamic or static documents. This may be done only in conjunction with and through methods and means of access integrated in the supplement. You may not otherwise copy, store, archive, or create a database of the content available through the Bing Maps APIs. You may not use the following for any purpose even if they are available through the Bing Maps APIs:
- Bing Maps APIs to provide sensor based guidance/routing, or
- any Road Traffic Data or Bird’s Eye Imagery (or associated metadata).
Your use of the Bing Maps APIs and associated content is also subject to the additional terms and conditions at go.microsoft.com/fwlink/?LinkId=21969.
- Microsoft Programs that include Distributable Code.Report Viewer and Microsoft Token Validation Extensions for Microsoft .NET Framework 4.5 (“Token Validation Extensions”) may include code that you are permitted to distribute in programs you develop (“Distributable Code”) if you comply with the terms below.
- Right to Use and Distribute.
- you may copy and distribute the object code form of the Distributable Code in programs you develop; and
- you may permit distributors of your programs to copy and distribute the Distributable Code as part of those programs.
- Right to Use and Distribute.
- b. Distribution Requirements. For any Distributable Code you distribute, you must
- add significant primary functionality to it in your programs;
- for any Distributable Code having a filename extension of .lib, distribute only the results of running such Distributable Code through a linker with your program;
- distribute Distributable Code included in a setup program only as part of that setup program without modification;
- require distributors and external end users to agree to license terms that protect the Distributable Code at least as much as this Agreement;
- display your valid copyright notice on your programs; and
- indemnify, defend, and hold harmless Microsoft from any claims, including attorneys’ fees, related to the distribution or use of your programs.
- Distribution Restrictions. You may not
- alter any copyright, trademark or patent notice in the Distributable Code;
- use Microsoft’s trademarks in your programs’ names or in a way that suggests your programs come from or are endorsed by Microsoft;
- distribute Distributable Code to run on a platform other than the Windows platform;
- include Distributable Code in malicious, deceptive or unlawful programs; or
- modify or distribute the source code of any Distributable Code so that any part of it becomes subject to an Excluded License. An Excluded License is one that requires, as a condition of use, modification or distribution, that the code be disclosed or distributed in source code form; or others have the right to modify it.
- Modification Disclaimer. You may modify the software comprised in the Solution only as necessary to use it for your internal business purposes if you or any third party acting on your behalf have licensed tools from K3 and Microsoft that allow you or that third party acting on your behalf to modify the object code of the software comprised in the Solution. You agree that neither K3 nor Microsoft is liable for any problems or losses (including damage to, loss of or inability to use the Solution, any data or any other hardware or software) that are caused directly or indirectly by modifications made by you, a Partner, or any other third party acting on your behalf, or any problems or losses that are caused by third party hardware or software. Neither K3 nor Microsoft have, nor will have any obligation to, provide technical or other support for any modifications to the software comprised in the Solution made by you, a Partner or any other third party. Neither K3 nor Microsoft make any representation, endorsement, guarantee or assurance of the suitability of the software comprised in the Solution for your business, the suitability of the Partner or any other third party to create modifications or to implement the modifications or the software comprised in the Solution, or that any modification created, implemented, supported and/or serviced by, for or on behalf of you or any third party will meet your business needs or operate successfully with the Solution. Microsoft and its partners authorized to distribute the Microsoft software comprised in the Solution (which include K3) are independent entities and Microsoft is not liable for nor bound by any acts of such business partners (including K3) nor is K3 bound by any acts of Microsoft. For the avoidance of doubt no rights are granted to you to copy, modify or distribute the source code or any of the software comprised in the Solution. The software comprised in the Solution shall not be used to develop and/or offered in conjunction with new applications, databases or tables other than those contained in the Solution. You may license additional software functionality offered by Microsoft or other authorized third parties. K3 may provide access to the Microsoft software comprised in the Solution to third party applications to the extent permitted by this Agreement.
- Fictitious Data. The uniform resource locators (URLs), addresses, names of individuals, companies, cities, states, and other items depicted and referenced in Microsoft and K3 material are fictitious in nature. They are provided as examples and illustrations only. No real association or connection is intended or should be inferred.
- Complex Software. The software comprised in the Solution is complex computer software. Its performance will vary depending on your hardware platform, software interactions, the configuration of such software comprised in the Solution and other factors. The software comprised in the Solution is neither fault tolerant nor free from errors, conflicts or interruptions.
- Third Party Notices. The software comprised in the Solution may include third party material (i.e., code or documentation) that K3 licenses to you under this Agreement. Notices, if any, for the third party material are included for your information only.
- Additional Functionality. Either K3 or Microsoft may provide additional functionality in relation to the software comprised in the Solution. Other license terms and fees may apply.
- INTERNET-BASED SERVICES. Microsoft and K3 may provide Internet-based services with their respective software comprised in the Solution. Microsoft and K3 may change or cancel the services provided by them respectively at any time and you agree that, subject to Section 23.2, neither K3 nor Microsoft shall be liable for any such changes or cancellations.
- Consent for Internet-Based Services. Certain features in the Solution may connect to Microsoft, K3 or third party service provider computer systems over the Internet. In some cases, you will not receive a separate notice when they connect. You may switch off these features or not use them. For more information about these features, see the Solution documentation. By using these features, you consent to the transmission of this information. Neither K3 nor Microsoft uses the information to identify or contact you.
- Computer Information. Certain features in the software comprised in the Solution use Internet protocols, which send to the appropriate systems computer information, such as your Internet protocol address, the type of operating systems, browser, name and version of the Solution (and the pieces of software comprised in it) you are using, and the language code of the device where you installed the Solution. Microsoft and K3 use this information to make the Internet-based services available to you. Some of these features include but are not limited to,
- Web Content Features. Features in the software comprised in the Solution can retrieve related content from Microsoft and/or K3 and provide it to you. To provide the content, these features send to Microsoft and/or K3 the type of operating system, name and version of the Solution (and the pieces of software comprised in it) you are using, type of browser and language code of the device where you installed the Solution. Examples of these features are clip art, templates, online training, online assistance and Appshelp. You may choose not to use these web content features.
- Use of Information. Microsoft and/or K3 may use the device information, error reports, and malware reports to improve its software and services. Microsoft and/or K3 may also share it with others, such as hardware and software vendors. They may use the information to improve how their products run with Microsoft and/or K3 software.
- Misuse of Internet-based Services. You shall not use these services in any way that could harm them or impair anyone else’s use of them. You shall not use the services to try to gain unauthorized access to, interfere with, damage or disrupt any service, data account, network, hardware or software by any means, or to transmit or send any unsolicited advertising or other materials, any offensive or illegal materials, or any computer code designed to adversely the operation or affect any network, hardware or software.
- PRODUCT/LICENCE KEYS. The Solution requires a key to run or access it. A key may only be used to run or access the particular version of the Solution it was issued for. You are responsible for and liable for the use of keys assigned to you. You must not duplicate or share the keys with third parties.
- BENCHMARK TESTING. You must obtain K3’s prior written approval to disclose to a third party the results of any benchmark test of the Solution or any software forming part of it.
- SCOPE OF LICENSE. The software comprised in the Solution is licensed, not sold. This Agreement only gives you some rights to use the Solution and does not transfer to you any right, title or interest to any part of it. Microsoft and K3 each reserve all of their other respective rights in relation to the Solution. Unless and only to the extent that applicable law or a separate written contract with Microsoft or K3 (as appropriate) gives you more rights in relation to their software comprised in the Solution, you may only use the Solution only as expressly permitted by this Agreement. In doing so, you must comply with any technical limitations in the Solution that only allow you to use it in certain ways. You may only use the Solution for your internal business purposes and shall not use it for any other purposes. You shall not and shall not attempt to:
- work around any technical limitations in the Solution;
- reverse engineer, decompile or disassemble any part of the Solution, except and only to the extent that applicable law expressly permits, despite this limitation;
- separate out from the Solution any software which forms part of it or attempt to use any such software other than as part of the Solution (without prejudice to the generality of the restriction under the bullet point immediately above this one);
- circumvent the validations functions of the Solution;
- use the Solution for commercial software hosting services;
- use the Solution or any part of it (i) to develop and/or (ii) in conjunction with new applications, databases or tables other than those contained in the Solution;
- make more copies of the Solution than specified in this Agreement, except to the extent allowed by applicable law;
- publish any part of the Solution for others to copy; or
- sublicense, assign, rent, lease or lend any part of the Solution, use or permit any third party to use, access or possess any part of the Solution, or use any part of the Solution on behalf of or for the benefit of any third party, including without limitation any consulting, service-bureau, time-sharing, rental or services (including commercial software hosting services) of any other kind.
Your rights to use the Solution may be revoked if you or any of your affiliates or any third party service provider permitted by this Agreement to use the Solution on your behalf does not comply with this Agreement. Rights to access the Solution do not give you any right to implement Microsoft or K3 patents or other Microsoft or K3 Intellectual property in any software or devices that access the server.
You shall not use the Solution in any way except as expressly permitted in this Agreement.
- BACKUP COPY. You may make a reasonable number of copies of the Solution for backup, development and testing purposes, so long as such copies are not used in production and the development and/or testing is for your internal business purposes only. Your backup copies may be hosted by a third party on your behalf as provided in Section 7b, provided that you ensure that such third party does not use or access the Solution or any part of it except to the extent reasonably necessary for the provision of the relevant hosting services.
- FAIL-OVER RIGHTS. In addition to your rights to use the Solution referred to in section 3 above, you may run a single passive fail-over instance of your Solution that will only be used for temporary support when the primary Solution is unavailable.
- LICENSE TRANSFER. You may not transfer any part of the Solution without K3’s prior written consent. If permitted, there may be additional charges for transferring the Solution to a third party.
- Any person that has valid access to your computer or internal network may copy and use the documentation to the extent reasonably required for your internal, reference purposes and you shall ensure that they do not use or copy the documentation for any other purposes.
- You have no rights to use earlier versions of any part of the Solution under this Agreement and you are not entitled to receive any earlier versions from K3 or otherwise.
- EXPORT RESTRICTIONS. The Solution is subject to EU and United States export laws and regulations. You must comply with all EU, US domestic and international export laws and regulations that apply to the Solution. These laws include restrictions on destinations, end users and end use. For additional information, see microsoft.com/exporting.
- SUPPORT SERVICES. K3 shall not be obliged to provide any support or maintenance in relation to any part of the Solution, provided that where you have purchased the relevant K3 support services, K3 shall make available to you all new releases of the Solution which correct faults, add functionality or otherwise amend or upgrade the Solution but which do not contain such significant differences from previous versions as to be generally accepted in the marketplace as constituting a new product. Where you have purchased the relevant K3 support services, K3 shall make available to you each maintenance release generally made available to its customers (“New Releases”). You shall install each New Release as soon as practicable following receipt. You are not permitted to take support or maintenance for the Solution from any third party who is not a Partner. Breach of this obligation without K3’s prior written consent (which may be conditional upon the removal of K3 software from the Solution and gaining Microsoft’s consent to enter into new licensing arrangements) is a material breach of this Agreement.
- ENTIRE AGREEMENT. This Agreement (including the warranty below) is the entire agreement between you and K3 in relation your rights to use the Solution. You acknowledge and agree that in entering into this Agreement, you have not relied on and shall have no remedy in respect of any representation, statement, warranty or understanding by or on behalf of K3 or Microsoft other than those expressly set out in this Agreement or made fraudulently.
- APPLICABLE LAW AND JURISDICTION. This Agreement shall be governed by Dutch law but excluding the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG). The competent court in The Hague, The Netherlands shall have exclusive jurisdiction to determine any disputes that arise out of or in connection with this Agreement, provided that K3 shall be entitled to apply for injunctive or other equitable relief in the courts of any competent jurisdiction. You hereby consent to the jurisdiction of the courts in The Hague, Netherlands, and waive any and all defences of improper forum, forum non conveniens, and all similar defences. You further waive the right to seek transfer of any proceedings to any other court.
- LEGAL EFFECT. This Agreement describes certain legal rights. You may have other rights under the laws of your state or country. You may also have rights with respect to the party from whom you acquired the Solution. This Agreement does not change your rights under the laws of your state or country if the laws of your state or country do not permit them to do so.
- INFRINGEMENT CLAIMS. K3 will defend you against any claims made by an unaffiliated third party that the Solution infringes a valid patent, copyright or trade mark or misappropriates its trade secret, (“IPR Claim”), and will pay actual damages awarded or settlement made by K3 in respect of such IPR Claim provided that you notify K3 promptly in writing of the IPR Claim, give K3 (and/or Microsoft if required by K3) sole and exclusive control over its defense or settlement, including without limitation the right to select counsel and settle the IPR Claim. You agree to provide K3 and Microsoft with reasonable assistance in defending the IPR Claim and K3 will reimburse you for your reasonable out of pocket expenses which you incur in providing that assistance. The terms “misappropriation” and “trade secret” are used as defined in the United States Uniform Trade Secret Act, except in the case of claims arising outside the United States of America, in which case “trade secret” shall mean “undisclosed information” as described in Article 39.2 of the TRIPs agreement and “misappropriation” shall mean intentionally unlawful use.
K3’s obligations will not apply to the extent that the IPR Claim or adverse final judgement is based on (i) your use of any part of the Solution after K3 or Microsoft notifies you to discontinue its use due to such an IPR Claim; (ii) your combining the Solution or any part of it with products, data or business processes (including without limitation third party add-ons or programs) which are not authorised by K3; (iii) damages attributable to the value of the use of a non-K3 or non-Microsoft (as the case may be) product, data or business process, (iv) your altering or modifying any part of the Solution including any modifications by third parties; (v) your distribution of any part of the Solution to, or its use by or for the benefit of, any third party; (vi) your use of K3 or Microsoft trademark(s) without their express written consent to do so; or (vii) if the IPR Claim is based on any release of the Solution (or any part of it) other than the current release if the IPR Claim could have been avoided by using the current release, unless the Solution originally provided or alone would be infringing and (viii) for any trade secret claim, your acquiring a trade secret (a) through improper means; (b) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (c) from a person other than K3, Microsoft or any of their affiliates who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. You will reimburse K3 and Microsoft for any costs or damages that result from these actions.
If K3 receives information concerning an IPR Claim or if you are prevented by an injunction from continuing to use the Solution due to an alleged infringement, K3 may (without any obligation to do so), at its sole option either (i) procure for you the right to continue to use the Solution or (ii) modify the Solution or replace it with a functional equivalent, to make it non-infringing, or (iii) accept the return of the infringing Solution, terminate this Agreement and issue or procure the issue of a pro-rata refund (using a 5-year amortization period) for the infringing Solution. In each case, you will stop using the infringing Solution immediately.
If any other type of third party claim is brought against you regarding K3’s or Microsoft’s intellectual or proprietary property (other than those in the Solution), you must notify us promptly in writing. Microsoft and K3 may, at their option, choose to treat these claims as being covered by this section. This Section 22 provides your exclusive remedy for IPR Claims.
- LIMITATION OF LIABILITY. You can recover from K3 only direct damages (excluding damages in respect of lost profits) up to the amount you paid for the Solution except for claims covered by Section 22. You cannot recover from K3 any other damages, including consequential, lost profits (whether direct or indirect), special, indirect or incidental damages.
- This limitation applies to:
- anything related to the Solution, services, content (including code) on third party Internet sites, or third party programs and materials; and
- claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, loss of data, damage to records or data, loss of goodwill, loss as a consequence of a business interruption or any other tort to the extent permitted by applicable law.
It also applies even if:
- repair, replacement or refund for the Solution does not fully compensate you for any losses; or
- K3, Microsoft, Partner or the relevant supplier knew or should have known about the possibility of the damages.
- This limitation does not apply in the case of fraud, death or personal injury caused by negligence or any other matter or liability which may not be lawfully limited or excluded.
- For the avoidance of doubt and to the maximum extent permitted by applicable law, Microsoft and its suppliers shall have no liability to you for any damages whether direct, indirect, incidental or consequential, as a result of the use or the installation of the Microsoft software comprised in the Solution.
- Some states do not allow the exclusion or limitation of consequential damages, so the above limitations or exclusions may not apply to you. They also may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages.
- INDEMNITY FROM YOU. You will indemnify K3 and keep them indemnified in respect of any liabilities, costs and expenses incurred by K3 to any third party (including without limitation Microsoft) arising out of in connection with any failure by you to comply with the terms of this Agreement.
- K3 may terminate this Agreement by written notice to you if (i) you commit any material breach of this Agreement or (ii) any step, application, order, proceeding or appointment is taken or made by or in respect of you for distress, execution, composition or arrangement with or for the benefit of creditors, winding-up, dissolution, administration, receivership (administrative or otherwise), bankruptcy, liquidation or (iii) if you are not able to pay your debts or (iv) any event occurs in respect of you which, under the applicable law of any jurisdiction to which you are subject, has an effect similar to that of any of the events referred to in (ii) or (iii).
You shall ensure that following the expiry or termination of your rights to use the Solution (or any part of it), you will remove the Solution from your systems and make no further use of it.
- VERIFYING COMPLIANCE.
- Right to verify compliance. You are required to keep records (including proof of purchase) relating to your use of the Solution. In addition to the subscription validation which may be performed under this Agreement, Microsoft and/or K3 also have the right to verify full compliance with this Agreement, at Microsoft’s and K3’s expense whichever shall be applicable. You agree to provide reasonable cooperation in the event of a compliance audit, including by allowing Microsoft and/or K3, on request, to access the usage report as a tool in conducting the audit.
- Verification process and limitations. To verify compliance with the terms of this Agreement, Microsoft and/or K3 will engage an independent accountant from an internationally recognized public accounting firm, which will be subject to a confidentiality obligation. Verification will take place upon not fewer than 30 days’ notice, during normal business hours and in a manner that does not interfere unreasonably with your operations. As an alternative, Microsoft and/or K3 can require you to complete Microsoft’s and/or K3’s self-audit questionnaire relating to the software comprised in the Solution which you use under the terms of this Agreement, but reserves the right to use a verification process as set out above.
- Verification frequency. If Microsoft or K3 undertakes verification and does not find material unlicensed use (license shortage of 5% or more), then neither Microsoft nor K3 will undertake another verification of the same entity for at least one year.
- Use of Results. Microsoft and K3 and their respective auditors will use the information obtained in compliance verification only to enforce Microsoft’s and K3’s rights and to determine whether you are in compliance with the terms of this Agreement. By invoking the rights and procedures described above, neither Microsoft nor K3 waives its rights to enforce the terms of this Agreement or to protect its intellectual property by any other means permitted by law.
- Remedies for non-compliance. If verification or self-audit reveals any unlicensed use, you must promptly order sufficient licenses to cover your use. If material unlicensed use is found, you must reimburse Microsoft and/or K3 for the costs Microsoft and/or K3 have incurred in verification and acquire the necessary additional licenses at single retail license cost within 30 days.
- YOUR INFORMATION. In order for Microsoft, K3 and its Partners to provide services to you in respect of the Solution and other matters relating to this Agreement, you hereby authorise Microsoft, K3 and its Partners to share between them information and data (including personal data) disclosed separately by you to Microsoft, K3 or any of its Partners.
- No failure to exercise and no delay in exercising any right, power or privilege under the terms of this Agreement shall operate as a waiver of it. Nor shall any single or partial exercise of any right, power or privilege preclude the enforcement of any other right, power or privilege. Nor shall the waiver of any breach be taken or held to be a waiver of the provision itself. A waiver of any right, power or privilege under the terms of this Agreement is only effective if it is in writing.
- If any of these provisions (or any part of them) is determined by any competent authority to be invalid, unlawful or unenforceable then that provision will to that extent be severed from the remaining provisions, which will continue in full force and effect.
- Except for Microsoft and any person named in Section 23 as benefiting from the limitations on and exclusions of liability contained in such Section, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of this Agreement. This does not affect any right or remedy of a third party which exists or is available apart from under that Act.
- Any provision of this Agreement which is expressly or impliedly intended to come into or continue in effect following the termination or expiry of your rights to use the Solution shall do so notwithstanding such termination (howsoever caused) or expiry.
- LIMITED WARRANTY
- LIMITED WARRANTY. K3 warrants that if you follow the instructions, the Solution will perform substantially as described in the relevant published technical specification for it.
References to “limited warranty” are references to the express warranty provided by K3 immediately above. This warranty is given in addition to other rights and remedies you may have under law, including your rights and remedies in accordance with the statutory guarantees under local consumer law.
- TERM OF WARRANTY; WARRANTY RECIPIENT; LENGTH OF ANY IMPLIED WARRANTIES. The limited warranty covers (i) the Solution and (ii) any New Releases, for a period of 90 days from the Solution or New Release (as the case may be) being first made available to you (the “Warranty Period”).
To the extent permitted by applicable law and subject to Section 23.2: (i) all other warranties, guarantees or conditions that may be implied under applicable law (including without limitation any warranties of satisfactory quality, fitness for purpose, merchantability and non-infringement) are hereby excluded on behalf of K3 and Microsoft, and (ii) those which cannot be excluded shall last only during the term of the Warranty Period. Some states do not allow limitations on how long an implied warranty lasts, so these limitations may not apply to you. They also might not apply to you because some jurisdictions may not allow limitations on how long an implied warranty, guarantee, or condition lasts.
- EXCLUSION FROM WARRANTY. The Limited Warranty does not cover problems caused by your acts (or failures to act), the acts of others, or events beyond K3’s or Microsoft’s reasonable control.
- REMEDY FOR BREACH OF WARRANTY. If the Solution, any part of it, or any supplement, update or replacement software fails to comply with the Limited Warranty, K3 will repair or replace it (or procure its repair or replacement) at no charge. If K3 cannot repair or replace it, K3 will refund the amount shown on your receipt for the Solution. You must uninstall the non-compliant software comprised in the Solution and return any media and other associated materials to K3 or its reseller with proof of purchase to obtain a refund. Subject to Section 23.2, these are you only remedies for breach of the Limited Warranty.
- CONSUMER RIGHTS NOT AFFECTED. You may have additional consumer rights under your local laws, which this Agreement cannot change.
- WARRANTY PROCEDURES. You must supply proof of purchase to K3 in order to be able to claim for breach of the Limited Warranty. To make a claim under the Limited Warranty, please contact the person from whom you acquired the Solution (whether K3 or some other person).
- NO OTHER WARRANTIES. Except to the extent otherwise required by applicable law, the Limited Warranty is the only direct warranty from K3 in respect of the Solution and, for the avoidance of doubt, K3 does not give any other warranties, guarantees or conditions. Where allowed by applicable law, K3 and Microsoft excludes implied warranties of merchantability, fitness for a particular purpose and non-infringement. If applicable law gives you any additional warranties, guarantees or conditions which cannot be excluded, your remedies for breaches of such implied warranties, guarantees or conditions are, to the extent permitted by such laws, limited to those described in Section 29D above.
- LIMITATION OF LIABILITY. The “Limitation of Liability” Section above applies to breaches of the Limited Warranty.