openQRM Enterprise Server and Client Licenses Agreement
This openQRM Enterprise Server and Client License Agreement (“Agreement”) is by and between OPENQRM AUSTRALIA PTY LTD, 1 Ransley Street, Penrith NSW 2750, Australia, and the Customer as identified on the Order Form on the use of openQRM Software.
openQRM Software is a client-server-based platform to manage and automate complete Datacenter Workflows.
This Agreement and its annexes shall form the entire Agreement. Conflicting or deviating Customer conditions do not apply, even if OPENQRM grants licenses in full knowledge of Customer's general terms and conditions.
For 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 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
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. The submitting of an Order Form by the Customer to OPENQRM shall be considered a binding offer on the part of the Customer.
The contract is concluded upon the receipt of electronic order confirmation of OPENQRM (e.g. via eMail) by the Costumer that contains a link to the download area of the relevant website of OPENQRM.
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
Server License – OPENQRM 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 the terms and conditions of this Agreement.
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.
It is explicitly prohibited to revise, modify or edit the Software to circumvent or in any other form manipulate a license check.
Unless specified in this Agreement no other rights to use or exploit the Software are granted to the Customer. The 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.
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.
Software is made available for download at the download area of the relevant website of OPENQRM.
6. Audit Rights
The customer undertakes to allow OPENQRM or an agent of OPENQRM to audit whether Customer’s use of the Software is consistent with the rights to Customer herein upon request by OPENQRM and provided there is a legitimate interest therein. Customer will give full co-operation to OPENQRM 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 per cent (5%) of the proper amount owed to OPENQRM.
7. License Fees
The customer has to pay a one-time license fee for each Server License and the fees for the Client Licenses as outlined in the relevant Price List. Unless otherwise stated, all prices are net prices and subject to value-added tax at the statutory rate.
If an Audit as outlined 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 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.
License fees and other charges from OPENQRM 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 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
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.
The right to terminate a Client License for cause remains unaffected. A reason, which entitles OPENQRM to a termination for cause, is given in particular if Customer (a) fails to perform any of its 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; or (b) files a petition in the 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.
OPENQRM warrants that the Software is substantially by the specifications as outlined in the Software Description and free from third party rights, which prevent the use of the Software by this Agreement.
A precondition for any warranty claim of the Customer is Customer's full compliance with all requirements regarding inspection and objection of the Software.
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 in a reasonable time after being reported to OPENQRM. Defects shall be remedied by making free subsequent repairs or free substitute delivery, at OPENQRM’s sole option, in particular by supplying, transmitting or providing an Update or by notification of a workaround.
Defects must be notified in writing or electronically (e.g. via email) with a comprehensible description of the error symptoms, as far as possibly 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 to inspect and notify defects.
Updates are provided at OPENQRM’s sole discretion to the Customers for downloading from the relevant website. OPENQRM will inform Customer in written form or electronically (e.g. via E-Mail) 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 may provide Updates to the Licensee on a suitable data carrier.
OPENQRM 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.
OPENQRM does also not accept warranty claims, if the defect is caused by hardware or software that has not been supplied by OPENQRM or if Customer does not make use or does make improper or incorrect use of Updates provided by OPENQRM.
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.
Any claims for damages are subject to the limitations set forth under Section 10 of this Agreement.
OPENQRM shall be liable under the statutory provisions if Customer raises claims for damages based on a wilful act or gross negligence.
In the case OPENQRM 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 the observance of which the Customer may duly rely, the liability of OPENQRM in damages will be limited to the predictable, typically occurring damage.
Liability for loss of data is limited to the typical recovery expense that would have been incurred in case of regular and risk-adequate storage of data on backup copies by the customer.
Liability for culpable loss of life, bodily injury or impaired health and liability under the Product Liability Act remains unaffected.
Insofar as the liability of OPENQRM is limited, this also applies to the personal liability of OPENQRM’s employees, staff members, representatives and servants.
Unless stipulated otherwise above, any liability of OPENQRM is excluded.
Each Party will treat as confidential beyond the license term concerning 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 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 to obtain 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
All agreements adding to or changing this Agreement will be recorded in writing.
Details or specifications of the Software on websites, in prospectuses, in the Software Description or 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 in writing.
Where this Agreement stipulates the written form, this exclusively means the written form.
OPENQRM shall have the right, to make use of subcontractors as long as such use is not contrary to the legitimate interests of the Customer.
The customer has no right to retention or to set off unless the counterclaim is legally established or undisputed.
The contractual relationship of the Parties is governed by Australian law.
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.
Copyright 2020 by OPENQRM AUSTRALIA PTY LTD
Last Update: 11/13/2020 - 12:45pm