Document Version: 1.0
This Sympathy for Data License Agreement (the “License Agreement”) is a binding agreement entered into between Combine Control Systems AB, reg. no. 556674-5484, a company organized under the laws of Sweden, (“Combine”) and the Licensee (as defined below) and governs the licensing and use of the Licensed Software (as defined below).
COMBINE PROVIDES THE LICENSED SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS LICENSE AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM.
For purposes of this License Agreement, the following terms shall have the meanings ascribed to them below, and references to the singular shall include the plural and vice versa.
“Activation”has the meaning stated in Section 3.1.b
“Affiliate”means any corporation, partnership or other entity that controls, is controlled by, or is under common control with, a Party to this License Agreement (existing as well as future). A corporation or other entity shall be regarded as in control of another corporation or entity if it owns, directly or indirectly, more than fifty per cent (50%) of the voting or equity rights of the other corporation or entity.
“Authorized Users”means the employee(s) of Licensee or Licensee’s Affiliates acting within the scope of their employment or Licensee's Contractors acting within the scope of their services for Licensee and on behalf of Licensee.
“Combine Open Source”means the non-commercial computer software products provided by Combine, licensed under the terms of an Open Source License. It is clarified that Combine Open Source is not provided under or governed by this License Agreement.
“Contractor(s)”means third party consultants and contractors performing services to the Licensee under applicable contractual arrangement.
”Documentation”means user manuals, technical manuals, release notes, and any other materials provided or made available by Combine to Licensee, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Licensed Software.
“Environment Requirements”means Combine’s technical requirements for the installation and operation of the Licensed Software in Licensee’s IT environment, as set out in the Environment Requirements Specification.
”Intellectual Property Rights”means any and all intellectual property rights, including but not limited to patents, trademarks, software, designs, utility models, copyrights, database rights, ideas, concepts, techniques, inventions, technologies, tools, processes and methodologies, know-how and trade secrets and any similar rights in any jurisdiction, regardless of whether registered or not, and all rights under licenses or otherwise in relation to any of the foregoing.
“License”has the meaning stated in Section 3.1.a.
“License Agreement”means this Sympathy for Data License Agreement, and the agreement documents referenced herein.
“Licensed Software”means Combine’s software tool “Sympathy for Data”, as further described in the at each time valid version of the Sympathy for Data Product Descriptions, including Updates and, as applicable, Upgrades, however, in respect of and as applicable to the Licensee “Licensed Software” includes the “Sympathy for Data” product configuration purchased by Licensee. The Licensed Software does not include Third Party Software or Combine Open Source.
“Licensee”means the individual or legal entity entering into this License Agreement for the purchase of license(s) to the Licensed Software, by digital acceptance in connection with online purchase of a license to the Licensed Software or otherwise.
“Licensee Equipment”shall mean Licensee Software, equipment and services, according to the Infrastructure Requirements and/or as needed to use the Licensed Software and for the Licensed Software to function in accordance with its specifications.
“Licensee Software”shall mean the Licensee’s IT environment and systems integrating with the Licensed Software.
“License Seat”means the right to activate an installation on a device, such as an operating system, virtual machine, or container on a physical device. The number of License Seats constitutes the basis for the License fee.
“License Term”means the validity period of the Licensee’s subscription to the Licensed Software and Support. The License Term may be an initial term or potential subsequent Renewal Terms.
“Party” and “Parties”means each of Combine Control Systems AB, 556674-5484, (“Combine”) and Licensee, and Combine and Licensee jointly.
“Product Description(s)”means Combine’s product descriptions for the “Sympathy for Data” software tool, as updated from time to time in Combine’s sole discretion, available here.
“Renewal Term”has the meaning stated in Section 4.1.
“Support”means the user support services, Updates and Upgrades etc. that are provided by Combine under its support offering connected to the Licensed Software, which is set out in the Support Terms.
”Third Party Software”has the meaning stated in Section 5.
“Third Party User”has the meaning stated in Section 3.1.d.
“Trial License”means a limited license to use the Licensed Software as set out in Section 3.2 and Clause 3.2.a.
“Updates”means any update, upgrade, release, or other adaptation or modification of the Licensed Software, containing bug fixes, error corrections, enhancements and other changes that are generally made available to users of the Licensed Software that have contracted for Support. Updates are generally depicted as a change to the digits following the decimal in the Software version number, e.g. 6.0 -> 6.1 or 6.0.0 ->6.0.1. Updates shall be considered as part of the Licensed Software hereunder.
“Upgrades”means any new version of the Licensed Software containing enhancements and new features that Combine may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Combine’s designation of a new major version number and are generally depicted as a change to the first digit of the Software version number, e.g. 5.3 -> 6.0). In the event Upgrades are provided to the Licensee under this License Agreement, they shall be considered as part of the Licensed Software hereunder.
The Licensed Software as delivered and licensed by Combine is proprietary to Combine or its third party licensors. All right, title and interest in and to all intellectual property embodied in the Licensed Software, including any improvements, enhancements or other modifications thereto, is owned by, and shall remain the property of Combine or its third party licensors, including, without limitation, any associated patents, copyrights, trademarks and other Intellectual Property Rights. Except for the License granted under this License Agreement, no title to or ownership of the Licensed Software, or any part thereof, shall be given or transferred to the Licensee.
Combine is free to use, implement and incorporate in the Licensed Software any suggestions, ideas, recommendations or feedback of Licensee, without payment of additional consideration to Licensee. Licensee acknowledges that the Licensed Software shall remain the sole and exclusive property of Combine, notwithstanding such use, implementation or incorporation.
Subject to the terms of this License Agreement and the Licensee’s payment of agreed fees, Combine hereby grants to Licensee a non-exclusive, non-transferable and non-sublicensable right and license during the License Term to use the Licensed Software and Documentation within the Licensee’s internal business and in accordance with this License Agreement and the purpose set out in the Product Description solely through its Authorized Users (the “License”). The License is valid for the number of License Seats purchased by the Licensee.
One License Seat entitles the Licensee to activate and run the Licensed Software on one individual device owned and controlled by the Licensee on which the Licensed Software is installed (the “Activation”). For the avoidance of any doubt, an individual device means an operating system, virtual machine, or container on a physical device. Multiple Activations on one and the same physical device but different operating systems, virtual machines, and/or containers are counted as multiple Activations and require a corresponding number of License Seats. The Product Description or purchase order sets out the applicable restriction to the number of instances that can be run in parallel on one device at any given time.
The Licensee may download or otherwise make a reasonable number of copies of the Documentation and use such Documentation solely in support of its licensed use of the Licensed Software in accordance herewith. All copies of the Documentation made by Licensee will be the exclusive property of Combine and subject to the terms and conditions of this License Agreement.
The License includes a right for Licensee to allow its Contractors engaged in Licensee’s internal business activities that involve use of the Licensed Software (“Third Party User”) to use the Licensed Software as an Authorized User only to the extent necessary for fulfilling its business relationship with Licensee and provided that Licensee makes such Third Party User aware of the limited right of use that is given in accordance with this License Agreement and notifies Combine of such Third Party User. Licensee is fully liable for any breach by any such Third Party User of the License granted under this License Agreement. Licensee or Third Party Users shall not remove or alter marks appearing on or in copies of the Licensed Software.
The Licensee is aware and accepts Combine’s logging and use of certain information of Licensee’s activation and use of the Licensed Software and Licensee’s bug reports for the purpose of analyzing and improving the Licensed Software.
Combine may, in the course of its development activities, at its discretion and without any obligation to notify the Licensee, make changes, additions or deletions in the components and functionalities of the Licensed Software, provided that no such changes, additions or deletions will affect the already released version of the Licensed Software, but only upcoming version(s).
Licensee’s purchase and use of a Trial License is, in addition to what is otherwise set out in this License Agreement, subject to the following terms and conditions:
The Trial License is valid for a fixed and limited time period, as stated on sympathyfordata.com (the “Trial License Term”).
The applicable fee for the Trial License, if any, is set out on sympathyfordata.com.
The Trial License automatically terminates upon expiration of the Trial License Term.
The Trial License does not include any right to Support.
Licensee is responsible for all aspects of Licensee Equipment including but not limited to the provision, maintenance and management of the Licensee Equipment, and ensuring that it meets, throughout the term of this License Agreement, the Environment Requirements.
Licensee is responsible for its operation of the Licensed Software and for installation of Updates and Upgrades and integration of such Updates and Upgrades with Licensee Software.
Licensee is responsible and liable for all uses of the Licensed Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Licensed Software and Documentation by its Authorized Users or by any other person to whom Licensee or an Authorized User may provide access to or use of the Licensed Software and/or Documentation, whether such access or use is permitted by or in violation of this License Agreement.
Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
use (including make any copies of) the Software or Documentation beyond the scope of the license granted in this License Agreement, specifically Clauses 3.1.a to 3.1.c;
provide any other person with access to or use of the Licensed Software or Documentation;
modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Licensed Software or Documentation or any part thereof;
combine the Licensed Software or any part thereof with, or incorporate the Licensed Software or any part thereof in, any other programs, other than set out in the Product Description;
reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Licensed Software or any part thereof;
remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Licensed Software or Documentation, including any copy thereof;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Licensed Software, or any features or functionality of the Licensed Software, to any third party for any reason except as explicitly permitted under this License Agreement;
use the Licensed Software or Documentation in violation of any law, regulation, or rule; or
use the Licensed Software or Documentation for purposes of competitive analysis of the Licensed Software, the development of a competing software product or service, or any other purpose that is to Combine’s commercial disadvantage.
The License, including Support, is provided to the Licensee on a subscription basis. The License Term for each License subscription is set out in Combine’s standard price list, quote or Purchase Order confirmation or in an appendix hereto, as the case may be. The License Term shall start with the purchase of the License (the “Start Date”). The License Term automatically renews according to what is set out in Combine’s standard price list, quote or Purchase Order confirmation or in an appendix hereto, as the case may be (“Renewal Term”) unless it is cancelled by one of the Parties in accordance with the applicable cancellation terms.
One Licensee fee is charged per License Seat. The License fee is valid for the at each time current License Term. Combine is entitled to adjust the License fee for any coming Renewal Term, however not more than once per year per License. Notice of changes to the License fee shall be made to Licensee no later than ninety (90) days prior to the change taking effect.
All fees are payable in advance and shall be paid no later than thirty (30) days from the date of the applicable invoice. Fees are non-refundable. In the event of late payment Combine is entitled to charge penalty interest in accordance with the Swedish Interest Act (Sw: Räntelagen).
The Licensed Software may provide links to third party libraries or code (collectively ”Third-Party Software”) to implement various functions. Third-Party Software does not comprise part of the Licensed Software, although access to Third-Party Software in some cases may be included with the Licensed Software. Such Third-Party Software will be listed separately in the relevant Product Description. The list may be updated and amended from time to time. Licensee acknowledges that use or distribution of Third-Party Software is in all respects subject to applicable license terms of applicable third-party right holders.
The License granted hereunder, except Trial Licenses, entitles Licensee to the basic software maintenance and support services described in the Support Terms (“Support”) for the duration of the License Term.
Support services will include provision of such Updates and Upgrades as Combine makes generally available free of charge to all customers of the Licensed Software entitled to maintenance and support services. Combine may develop and provide Updates and Upgrades in its sole discretion, and Licensee agrees that Combine has no obligation to develop any Updates or Upgrades at all or for particular issues. Licensee acknowledges that Combine may provide Updates and Upgrades via download from a website designated by Combine and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Combine has no obligation to provide Updates and Upgrades via any other media.
The Support is given upon the condition that the Licensee follows the Environment Requirements and only uses the Licensed Software in its intended environment in accordance with the Environment Requirements.
The Licensee is responsible for undertaking back-up of its material and data at any given time. Combine is not responsible for back-up of Licensee’s data at any time, and in no case prior to providing Support.
Combine hereby represents and warrants, for the sole benefit of the Licensee, that
it has the power and authority to grant the License granted to Licensee under this License Agreement; and
at the time of execution of this License Agreement, Combine has no knowledge of the Licensed Software infringing any third party right.
Except as set forth above, the Licensed Software (including Support) is provided “AS IS.” Licensee’s exclusive remedy and the entire liability of Combine and its Affiliates for defects in the Licensed Software will be, at Combine’s option, correction or replacement of the Licensed Software, or a refund of the applicable fees paid by Licensee for the defective Licensed Software for the period during which Licensee has not been able to use the Licensed Software as intended. In no event does Combine warrant that the Licensed Software is error free or that Licensee will be able to operate the Licensed Software without problems or interruptions.
EXCEPT FOR THE EXCLUSIVE LIMITED WARRANTY SET FORTH ABOVE, THE LICENSED SOFTWARE, SUPPORT AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMBINE, ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS AND AFFILIATES, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE, SUPPORT AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITATION TO THE FOREGOING, COMBINE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL SATISFY LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, OR THAT IT WILL OPERATE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED.
EXCEPT FOR CASES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMBINE BE LIABLE TO THE LICENSEE FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; FOR ANY LOSS OF PROFIT, LOSS OF DATA, LOSS OF BUSINESS OR GOODWILL OR ANY OTHER INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE COST, DAMAGES OR EXPENSE OF ANY KIND, HOWSOEVER ARISING UNDER OR IN CONNECTION WITH THIS LICENSE AGREEMENT. IN NO EVENT WILL COMBINE’S AGGREGATE LIABILITY UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO COMBINE FOR THE LICENSE UNDER THIS LICENSE AGREEMENT.
On Combine’s written request, Licensee shall conduct a review of its and its Authorized Users use of the Licensed Software and certify to Combine in a written statement that it is in full compliance with this License Agreement. If Licensee discovers any noncompliance, Licensee shall promptly remedy such noncompliance and provide Combine with written notice thereof.
During the License Term, Combine may, in Combine’s sole discretion and upon reasonable notice to Licensee, audit Licensee’s use of the Licensed Software to ensure Licensee’s compliance with this License Agreement. Such audit shall not be conducted more than once in any 12-month period unless good cause is shown. The Licensee shall cooperate with Combine’s personnel conducting such audits and provide all reasonable access requested by Combine to records, systems, equipment, information, and personnel relevant to the audit. Combine shall only examine information directly related to the Licensee’s use of the Licensed Software. Combine may conduct audits only during Licensee’s normal business hours and in a manner that does not unreasonably interfere with the Licensee’s business operations.
If any of the measures taken or implemented under this Section 9 determines that the Licensee’s use of the Licensed Software exceeds or exceeded the use permitted by this License Agreement the Licensee shall, within thirty days following the date of Combine’s written notification thereof, pay to Combine the retroactive License fees for such excess use and, obtain and pay for a valid license to bring Licensee’s use into compliance with this License Agreement. The Licensee shall in such cade also pay to Combine, within thirty days following the date of Combine’s written request therefor, Combine’s reasonable costs incurred in conducting the audit.
Combine’s remedies set forth in this Section 9 are cumulative and are in addition to, and not in lieu of, all other remedies Combine may have under applicable law or this License Agreement.
During the term of this License Agreement and for a period of ten (10) years thereafter the receiving Party undertakes not to disclose or reveal any information (regardless of whether it is in oral, written, electronic or other form), without the disclosing Party’s prior written consent, regarding the disclosing Party’s business which may be considered a trade or professional secret, or otherwise use such information for any purpose other than for the receiving Party's performance of its obligations under this License Agreement. Information that the disclosing Party has declared to be confidential shall at all times be considered a trade or professional secret.
This confidentiality undertaking shall not apply to information that the receiving Party can prove it learned of in a manner other than through this License Agreement or which is public knowledge. Nor does this confidentiality undertaking apply when the receiving Party is required to disclose information in accordance with any law, enactment, stock market regulation or decision by governmental authorities.
This License Agreement shall remain in force for the duration of the License Term for any License under this License Agreement.
Either Party shall be entitled to terminate this License Agreement with immediate effect where:
the other Party has committed a material breach of this License Agreement; or
the other Party has committed a breach of this License Agreement and, if the breach of contract can be cured, fails to cure such breach within thirty (30) days of a written demand (containing a description of the breach of contract and reference to this clause); or
the other Party is declared bankrupt, commences company reorganization, commences composition with its creditors, or can otherwise be deemed insolvent.
Notice of termination must always be given in writing, without unreasonable delay after the terminating Party learns of the circumstance which is invoked as grounds for termination.
Upon expiry or termination of this License Agreement, Licensee shall cease and shall cause all Authorized Users (including those of its Affiliates’ and Contractors’) to cease using the Licensed Software. Licensee shall further upon any such termination destroy or return to Combine all copies of the Licensed Software, Documentation and all related materials.
Expiry or termination of this License Agreement for any reason whatsoever shall not relieve Licensee of its obligation to pay any License fees accrued or payable to Combine prior to the effective date of termination.
No amendment to this License Agreement shall be effective unless made in writing and duly executed by both Parties.
Notwithstanding 12.1, Combine is entitled to make changes to the Product Descriptions from time to time. Updated Product Descriptions are published on sympathyfordata.com.
Further, Combine may, upon 30 calendar days’ notice, change the terms and conditions of this License Agreement. Combine shall provide the Licensee written notice of its intention to change the terms and conditions via e-mail to the Licensee’s appointed contact person. The notice shall include a clear description of the changes. If Licensee is not willing to accept the new terms and conditions, the Licensee is entitled to terminate the License Agreement. The Licensee shall give notice of termination of the agreement within thirty (30) calendar days from the date of receipt of Combine’s notice, or the Licensee will lose its right to terminate the License Agreement on the basis of the changes. If the Licensee terminates the License Agreement the termination will take effect no later than 30 calendar days following Licensee’s notice. If the Licensee does not give notice of termination the updated terms and conditions start to apply between the Parties on the date stated by Combine in its notice.
Should any clause in this License Agreement or part thereof be void or invalid, the other provisions of the License Agreement shall remain in force and the clause may be amended to the extent such invalidity materially affects the rights or obligations of either Party under this License Agreement.
Any terms and conditions that by their nature or otherwise reasonably should survive termination of this License Agreement shall so be deemed to survive.
Neither Party may assign its rights and/or obligations under this License Agreement without the prior written consent of the other Party.
This License Agreement is governed by Swedish law, without regard to its conflict of law provisions.
Any dispute, controversy or claim arising out of or in connection with this License Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC Institute”). The seat of arbitration shall be Gothenburg, Sweden. The language to be used in the arbitral proceedings shall be English.
The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC Institute in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.
The Parties undertake, indefinitely, not to disclose the existence or contents of any judgment or decision related to or in connection with this License Agreement or any information regarding negotiations, arbitral proceedings or mediation in connection therewith. This confidentiality undertaking shall not apply in relation to information which a Party is required to disclose by law, pursuant to an order of a governmental authority, pursuant to applicable stock exchange rules, or which may be required for the enforcement of a judgment or an award.