WEBTESTIT SOFTWARE SUBSCRIPTION AGREEMENT
Strassganger Strasse 289
BY PROCEEDING TO DOWNLOAD, INSTALL OR USE THE SOFTWARE IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED OR BY OBTAINING A LICENSE OR ESTABLISHING A USER ACCOUNT FOR THIS SOFTWARE, YOU HEREBY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN CLICK “DO NOT ACCEPT,” DO NOT INSTALL OR USE THE SOFTWARE AND DELETE THE SOFTWARE FROM YOUR COMPUTER SYSTEM. BY INSTALLING OR USING THE SOFTWARE OR BY CLICKING ON “ACCEPT” YOU ACKNOWLEDGE AND AGREE THAT ON BEHALF OF YOURSELF AND YOUR EMPLOYER YOU HAVE READ THIS SOFTWARE SUBSCRIPTION AGREEMENT CAREFULLY, THAT YOU AND YOUR EMPLOYER AGREE TO BE BOUND BY THIS AGREEMENT AND THAT IF APPLICABLE YOUR EMPLOYER HAS INFORMED YOU OF THE RELEVANT PROVISIONS OF THIS AGREEMENT WHICH MAY BE APPLICABLE TO YOU. THIS AGREEMENT, SHALL GOVERN YOUR INSTALLATION AND USE OF THE SOFTWARE IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED. RANOREX URGES YOU TO CAREFULLY READ THIS AGREEMENT AND ASSESS YOUR USE OF THE SOFTWARE PRIOR TO INSTALLING OR USING THE SOFTWARE OR MAKING ANY DECISION TO USE OR SUBSCRIBE TO IT.
THIS SOFTWARE SUBSCRIPTION AGREEMENT, is dated as of the date of, in the case of any Evaluation Software (as defined in Section 16 below), the date of Customer’s acquisition of a trial license, or in the case of any purchase of a license for use of the Licensed Software (as defined below), the date of the Purchase Order (as defined below) pursuant to which such license is purchased, is between Ranorex GmbH, an Austrian limited liability company (“Ranorex”), and, in the case of any Evaluation Software, the customer to whom temporary license is delivered or, in the case of any purchase of a license for use of the Licensed Software, the customer set forth on the purchase order pursuant to which such license is purchased (in each case, herein “Customer”), and sets forth the terms and conditions whereby Ranorex agrees to provide to Customer for a limited period of time and Customer agrees to acquire from Ranorex one or more limited licenses to use certain software and documentation and maintenance services related thereto, owned or licensed by Ranorex or a subsidiary or an affiliate of Ranorex, as set forth on the Purchase Order delivered in connection with this Agreement. To the extent any terms or conditions contained in the Purchase Order conflict with the terms or conditions contained in this Agreement, the terms and conditions of the Purchase Order shall supersede only those conflicting terms or conditions contained in this Agreement and only to the minimum extent necessary to harmonize the terms and conditions in such Purchase Order with the terms and conditions contained herein. The Purchase Order together with the terms and conditions of this Agreement (as defined below), shall constitute and be construed as a single agreement consisting of the terms and conditions contained in the Purchase Order together with the terms of this Agreement. This Agreement specifically supersedes and replaces the terms and conditions of all prior agreements between Ranorex and Customer relating to the software subscribed to hereunder by Customer, including, but not limited to, any shrink-wrap agreements, click-wrap agreements or any demo or trial agreements which may accompany or are embedded in Ranorex’s products or which have been previously in force between the parties. If Customer is evaluating Evaluation Software, then only the terms and conditions of Section 16 below (including those Sections of this Agreement incorporated therein by reference) will govern Customer’s temporary use of such Evaluation Software (and no other terms of this Agreement shall apply to Customer or govern Customer’s use of Evaluation Software) and upon purchase of a commercial license for such Evaluation Software, this entire Agreement, exclusive of Section 16, shall apply to Customer and govern all use of the Licensed Material (as defined below). In consideration of the mutual promises and agreements contained herein, the parties hereto also agree as follows:
GENERAL TERMS AND CONDITIONS
(a) “Agreement” means this software subscription agreement, together with all exhibits, schedules, annexes and Purchase Orders made a part hereof in accordance with the terms of this Agreement and all amendments, modifications, supplements and alterations thereto effected in accordance with the terms of this Agreement.
(b) “Confidential Information” means all technical and non-technical information in both tangible and intangible form, including, but not limited to, product design information, software code, technical information, customer information, discounting, cost and pricing information, financial information and the results derived from or methodology employed by Customer in conducting any benchmark testing of the Licensed Software; provided that the term “Confidential Information” shall not include information which the recipient can show by reasonable proof (i) to have been known by the recipient prior to the time of disclosure by the disclosing party, (ii) to have become part of the public domain through no fault or breach of this Agreement by the recipient, (iii) to have been disclosed to the recipient in good faith by a third party who is not under any obligation of confidence or secrecy to the disclosing party at the time such third party discloses the information to the recipient or (iv) to have been compelled to be produced by a court of competent jurisdiction, provided that the recipient shall first give notice to the disclosing party of any such request or order of the court to give the disclosing party an opportunity to contest or limit said request or order of the court.
(c) “Error” means any error, defect or omission that (i) is discovered in the Licensed Software, (ii) is reproducible and (iii) prevents operation of the Licensed Software substantially in accordance with the Licensed Documentation.
(d) “Licensed Documentation” means the published user manuals that Ranorex makes gener¬ally available for the Licensed Software.
(e) “Licensed Material” means the Licensed Software and the Licensed Documentation.
(f) “Licensed Software” means the machine-readable object code ver¬sion of (i) the software specified on each Purchase Order, whether embed¬ded on disc, tape, internet download site or other media and (ii) all Updates for the Licensed Software that Customer is entitled to receive in connection with its receipt of Maintenance Services pursuant to Section 4 of this Agreement.
(g) “License Term” means (A) the initial period of time (the “Initial Term”) (i) specified on the Purchase Order pursuant to which Customer subscribed to such Licensed Software or (ii) to the extent no such initial time period is specified in such Purchase Order, a one-year period of time, in each case commencing on the date of such Purchase Order, and (B) all subsequent renewals and extensions thereof effected in accordance with the terms of this Agreement (each, a “Renewal Term”).
(h) “Maintenance Services” means the technical support services provided by Ranorex pursuant to Section 4 hereof.
(i) “Purchase Order” means Ranorex’s standard price quote, purchase order, order form or purchase confirmation (including such price quotes, order forms and purchase confirmations as may be delivered through use of Ranorex’s online store), as such document may be amended, supplemented or modified from time to time in accordance with this Agreement.
(j) “Update” means any revision, enhancement, improvement or modification to or programming fix for the Licensed Software or Licensed Documentation which Ranorex makes generally available, incorporates into and makes a part of the Licensed Software or Licensed Documentation and does not separately price or market.
(a) Use – Subject to the terms and conditions of this Agreement, including, but not limited to the applicable licensing restrictions set forth in Section 2(b) below, and subject further to Customer’s full compliance herewith and according to the scope, time period and other terms indicated on the applicable Purchase Order delivered in connection with this Agreement, Ranorex hereby grants Customer and Customer hereby accepts from Ranorex, a limited, non-exclusive and non-transferable (except as otherwise expressly provided in Section 17(a) below) right and license during the License Term to install the Licensed Software on computer hardware that is owned or operated by or on behalf of Customer, to access and use the Licensed Material in accordance with the applicable restrictions and conditions contained in this Agreement and to copy the Licensed Material as permitted by this Agreement. Customer’s right to use the Licensed Material during the License Term shall extend to use by third parties under a written agreement with Customer to provide outsourcing services for Customer’s own internal business operations; provided, that (i) such third parties have agreed to abide by the terms of this Agreement and (ii) Customer shall remain primarily liable for all acts and omissions by such third parties.
(b) License Usage and Restrictions – Customer acknowledges and agrees that, as between Customer and Ranorex, Ranorex, its subsidiaries and affiliates and its licensors own and shall continue to own all right, title, and interest in and to the Licensed Material and all derivatives thereof, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant Customer any ownership interest in or to the Licensed Material, but only a limited right and license to use the Licensed Materials during the License Term in accordance with the terms of this Agreement and each applicable Purchase Order. Customer further acknowledges and agrees that the licenses granted hereunder and the restrictions applicable to Customer’s installation and use of the Licensed Software will vary according to the type of Licensed Software purchased by Customer and the type of license purchased by Customer. One or more of the restrictions set forth in this Section 2 may apply to the Licensed Software depending upon the type of Licensed Software purchased by Customer, the type of license purchased and the terms contained in the applicable Purchase Order relating to the Licensed Software. Customer is encouraged to carefully review all terms and restrictions contained in this Section 2 and each Purchase Order. Customer hereby agrees to the following license restrictions and conditions applicable to the Licensed Software as set forth in the Purchase Orders delivered by Customer under this Agreement:
(i) For all Licensed Software made generally available by Ranorex on a “per-user” or “per-seat” basis and licensed hereunder by Customer on a “per-user” or “per-seat” basis, Customer may install and operate such Licensed Software during the License Term on any number of physical or virtual machines or computers but Customer shall not simultaneously access and use such Licensed Software by more than one (1) concurrent user having a single user account per license purchased by Customer; and
(ii) For all Licensed Software made generally available by Ranorex on a “named user” basis and licensed hereunder by Customer on a “named user” basis (a “Named User License”), Customer may install and operate such Licensed Software during the License Term on any number of computers and designate in writing one (1) person in Customer’s organization having a single user account (the “Named User”) who shall have the right to use the Licensed Software, provided that only the Named User uses the Licensed Software and such use is not conducted on more than one such computer simultaneously.
In no event shall Customer install, operate, use or access the Licensed Software in contravention of the foregoing restrictions applicable to the Licensed Software or any other restrictions contained in this Agreement.
(c) User Account – Customer acknowledges that each user authorized to use the License Software by Customer is required to register a user account with Ranorex having a unique email address and strong password (a “User Account”) in order to access and use the Licensed Software. Customer hereby agrees that all User Account information, including the password thereto, shall be safeguarded against disclosure and treated as Confidential Information of Ranorex. In no event shall any person access or use the Licensed Software other than the user in whose name such User Account is registered. Customer is solely responsible for safeguarding all User Account information (including passwords thereto) and hereby agrees to do so in a timely and secure manner.
(d) Copies & Disaster Recovery – Subject to Customer’s compliance with Section 2(b), Customer may make a reasonable number of copies of the Licensed Software. Customer shall repro¬duce all confidentiality and proprietary notices on each of the copies permitted hereunder and maintain an accurate record of the location of each of the copies. Customer shall not otherwise copy or duplicate the Licensed Material. Customer shall not reverse engineer, disassemble, translate, modify, adapt, or decompile the Licensed Material or apply any procedure or process to the Licensed Material in order to ascertain, derive, and/or appropriate the source code or source listings for the Licensed Software or any trade secret or other proprietary information contained in the Licensed Software.
(e) Renewal of License Term – Upon expiration of the Initial Term and each Renewal Term, all limited subscription licenses granted under this Agreement shall automatically renew for the duration of the Initial Term until the Customer deactivates the auto-renewal feature in his Ranorex account profile. Customer’s election not to renew a subscription license for an additional Renewal Term must be made in its Ranorex account at least five (5) days, if the Customer has a month-to-month subscription, or within thirty (30) days, if the Customer has an annual subscription, prior to the expiration of such then-current Initial Term or Renewal Term, as applicable.
(f) Other Services – All licenses and Maintenance Services subscribed to by Customer in respect of the Licensed Material shall be governed by this Agreement, together with the applicable Purchase Orders delivered hereunder. Unless otherwise agreed by the parties in writing, all other services purchased by Customer in respect of the Licensed Software, if any, including implementation services, training services and professional services (collectively, “Ancillary Services”), shall be governed solely by a separate written mutually acceptable services agreement entered into by the parties or, in the absence of such agreement, Ranorex’s standard professional services agreement, and acceptance of the Licensed Material shall not be contingent upon Customer’s acceptance of any such Ancillary Services.
3. DELIVERY AND PAYMENT TERMS
(a) Delivery – All Licensed Material shall be delivered by Ranorex to Customer via electronic delivery using a secure internet download site. Customer’s subscription to all Licensed Software subscribed to hereunder, the License Term in respect of such Licensed Software and risk of loss for such Licensed Materials shall be deemed to have commenced once Ranorex has made the Licensed Material available for download by Customer and notified Customer of the availability of the Licensed Material for download.
(b) Payment – Upon submission of an order for the License Software by Customer via Ranorex’s online store, Ranorex shall deliver a Purchase Order to Customer confirming such purchase and all subscription license fees shall be immediately due and payable by customer via credit card. Customer hereby consents to Ranorex automatically processing and charging all fees due by Customer hereunder, including all renewal subscription fees, to the credit card submitted by Customer. Customer is required to provide Ranorex with a valid form of credit card payment and to keep all such credit card information current and accurate in respect of all fees owing hereunder. Customer shall promptly notify Ranorex if its credit card has changed or has been declined. All fees payable by Customer in respect of such Ancillary Services may be separately invoiced. Customer’s payment obligation with respect to all subscription license fees owing hereunder shall be independent of the provision of Ancillary Services, whether or not such Ancillary Services are separately invoiced. Ranorex may, in its sole discretion, permit Customer to submit a Purchase Order for Licensed Software, in lieu of ordering through Ranorex’s online store. All orders submitted by Customer through delivery of a Purchase Order by Customer shall be non-cancellable and Ranorex shall invoice Customer for all subscription fees relating to such order and Customer shall pay all such invoiced amounts within thirty (30) days of its receipt of such invoice. Any late payment of any amount owing hereunder shall accrue interest at a rate equal to the lesser of (i) 15% per annum and (ii) the maximum rate permitted by law. Ranorex, at its sole discretion, may suspend the Customer account if the Customer has an outstanding payment for more than thirty (30) days or if Customer’s credit card is declined.
(c) Taxes – All payments referred to in this Agreement are exclusive of value added tax, sales tax and any other applicable taxes, duties or imposts which (with the exception only of those based on Ranorex’s income) shall also be payable by Customer in accordance with applicable law.
Ranorex does not warrant that the Licensed Software will operate error-free or may be used error-free. Customer’s right to use the Licensed Software during the License Term shall include the provision of Maintenance Services by Ranorex at no additional fee. Upon Customer’s payment of the subscription license fees associated with the License Term purchased by Customer for the Licensed Software specified in a Purchase Order, Ranorex shall provide Maintenance Services in accordance with this Section 4 and in accordance with any additional Maintenance Services terms specified in such Purchase Order. Ranorex or its authorized representative will provide Maintenance Services for the Licensed Software during each License Term. Maintenance Services includes problem determinations, reasonable problem resolutions, provisioning of software program temporary fixes and new releases. Maintenance Services shall also include the additional Maintenance Service terms expressly set forth in writing in the Purchase Order delivered by Customer, which are hereby incorporated herein by reference. Maintenance Services shall entitle Customer to receive, at no additional cost, all Updates.
5. PROPRIETARY RIGHTS
Customer shall not acquire, by virtue of this Agreement, any right or license other than as expressly provided herein. Customer shall not reproduce the Licensed Material or other confidential or proprietary information of Ranorex, except as provided in this Agreement. All proprietary rights in and to the Licensed Material and all Evaluation Software (as defined in Section 16 below), all derivatives, translations, modifications, adaptations, improvements, enhancements or developments thereof and all confidential or proprietary information of Ranorex, including without limitation, all rights under and with respect to patents, copyrights, trademarks and rights under the trade secret laws of any jurisdiction shall remain the sole property of Ranorex, its subsidiaries or affiliates or its applicable licensors, whether recognized by or perfected under applicable local law. Customer shall promptly notify Ranorex of any infringement of Ranorex’s proprietary rights of which it becomes aware.
6. LIMITED WARRANTIES
(a) Warranty – Ranorex warrants to Customer that during the License Term (the “Warranty Period”) such Licensed Software will perform substantially as described in the accompanying Licensed Documentation. Ranorex does not war¬rant that (i) the Licensed Software will satisfy or may be customized to satisfy any of Customer’s requirements or any other particular use or (ii) the use of the Licensed Software will be uninterrupted or error-free. Laws from time to time in force may imply warranties that cannot be excluded or can only be excluded to a limited extent. This Agreement shall be read and construed subject to any such statutory provisions.
(b) Remedies – If at any time during the Warranty Period, Ranorex breaches the warranty set forth in clause (a) above, then Customer shall promptly notify Ranorex of such Error or breach and Ranorex shall (A) use all commercially reasonable efforts to correct such Error or breach within thirty (30) days of notification or (B) provide Customer within thirty (30) days of notification with a plan reasonably acceptable to Customer for correcting such Error or breach. If such Error or breach is not corrected or if a reasonably acceptable plan for correcting such Error or breach is not established within such thirty (30) day period, Ranorex shall replace the defective Licensed Software or, if not practicable, accept the return of the defective Licensed Software and refund to Customer the pro rata portion of all pre-paid license fees actually paid by Customer for the defective Licensed Software in respect of the remaining portion of the current License Term. Ranorex’s obligations under this Section 6(b) shall be waived in the event such Error or breach is due to (I) any defect in or misconfiguration of the computer hardware upon which the Licensed Software is installed, (II) improper handling or use of the software media by Customer, or (III) an unauthorized alteration, revision or configuration of the Licensed Software or to Customer’s computer system by Customer or its employees. Customer acknowledges that this Section 6(b) sets forth Customer’s sole and exclusive remedy, and Ranorex’s and its authorized representatives’ sole and exclusive liability, for any breach of warranty, Error or failure of the Licensed Software to function properly.
(c) Disclaimer – EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, REPRE¬SENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE LICENSED MATERIAL, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY RANOREX OR ITS AUTHORIZED REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN AND DISCLAIMED.
(a) Indemnity – Subject to this Section 7 and Section 8 below, Ranorex agrees during the License Term to indemnify, defend and hold harmless Customer from and against all claims, damages, losses, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of any claim by a third party asserting that the Licensed Material or any of Customer’s use thereof, infringes upon any third party’s patent, copyright or trademark, provided that (i) Customer promptly notifies Ranorex in writing no later than thirty (30) days after Customer’s notice of any potential claim, (ii) Customer permits Ranorex to defend, compromise or settle the claim, and provided further that no settlement intended to bind Customer shall be made without Customer’s prior written authorization and (iii) Customer gives Ranorex all available information, reasonable assistance, and authority to enable Ranorex to do so.
(b) Alternative Remedy – If a claim described in Paragraph 7(a) may or has been asserted, Customer will permit Ranorex, at Ranorex’s option and expense, to (i) procure the right to continue using the Licensed Material during the current License Term, (ii) replace or modify the Licensed Material to eliminate the infringement while providing functionally equivalent performance or (iii) accept the return of the Licensed Material and refund to Customer the pro rata portion of all pre-paid license fees actually paid by Customer for such Licensed Software in respect of the remaining portion of the current License Term.
(c) Limitation – Ranorex shall have no indemnity obligation to Customer hereunder if the violation or infringement claim results from (i) a correction or modification of the Licensed Material not provided by Ranorex or its authorized representative, (ii) the failure to promptly install an Update, (iii) the combination of the Licensed Software with other non-Ranorex software and (iv) continuing the allegedly infringing activity after receiving written notice of such infringement claim from Ranorex.
8. NO CONSEQUENTIAL DAMAGES
UNDER NO CIRCUMSTANCES WILL RANOREX, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CON-SEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCI-DENTAL DAMAGES, WHETHER FORE¬SEE¬ABLE OR UNFORE¬SEEABLE, BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE LICENSED MATERIALS, INTER¬RUPTION IN USE OR AVAIL¬¬ABILITY OF DATA, STOP¬PAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WAR¬RANTY, BREACH OF CONTRACT, BREACH OF ANY INTELLECTUAL PROPERTY RIGHT, MISREP¬RESENTATION, NEG¬LIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIA¬BILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY INCURRED IN ANY ACTION OR PROCEEDING BY RANOREX, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE AUTHORIZED REPRESENTATIVE EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPE¬CIFIC LICENSED SOFTWARE THAT DIRECTLY CAUSED THE DAMAGE DURING THE CURRENT LICENSE TERM.
(a) Confidentiality. – Customer acknowledges that the Licensed Materials incor¬porate confidential and proprie¬tary information developed or acquired by or licensed to Ranorex and that all results of testing of the Licensed Software, whether performed by Customer or another third party, are confidential. In no event will Customer publish or disclose the results of any testing or performance specifications of the Licensed Software without Ranorex’s express prior written consent. A party that receives Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) shall not: (i) export or re-export any Confidential Information, except in strict compliance with all applicable laws; (ii) reverse engineer any Confidential Information; or (iii) disclose or make available the Disclosing Party’s Confidential Information to any of the Receiving Party’s employees, agents, contractors or consultants or to any third parties, except those that have agreed in writing to be bound by terms and conditions substantially similar to, and no less restrictive with respect to limitations on use and disclosure, than those contained in this Agreement and each of which have a “need to know” in order to carry out the purposes set forth in this Agreement. Each party shall take all reasonable precautions necessary to safeguard the confiden¬tiality of all Confidential Information disclosed by the other party, including those precautions (A) taken by the disclosing party to protect its own Confidential Infor¬ma¬¬tion and (B) which the disclosing party or its authorized representative may reasonably request from time to time. Neither party shall allow the removal or deface¬ment of any confidentiality or proprietary notice placed on the Confidential Information disclosed by the disclosing party. The placement of copy¬right notices on Confidential Information shall not consti¬tute publication or otherwise impair their confidential nature of such information.
(b) Disclosure – If an unauthorized use or disclosure of the disclosing party’s Confidential Information occurs within the recipient party’s enterprise, the recipient party will immed¬iately notify the disclosing party or its authorized representative and take, at recipient party’s expense, all steps which may be available to recover such Confidential Information and to prevent its subsequent unauthorized use or dissemination.
Customer may terminate this Agreement and all subscriptions purchased hereunder upon selection of the termination feature in its account with Ranorex. Except during the first year License Term for the Customers enrolled in the annual subscription, which such Customers may only terminate this Agreement after the expiration of the initial License Term, the termination of this Agreement will be effective if the Customer License Term termination is selected 30-days prior to the expiration of the License Term, for the annual subscription Customers, or 5-days prior to the expiration of the License Term, for the month-to-month subscription Customers; provided, however, that Customer shall not be entitled to any refund or credit (except as otherwise expressly set forth in this Agreement) of any amounts paid by Customer or a release from or cancellation, waiver or novation of any amounts payable or promised to be paid by Customer hereunder and all such amounts payable or promised to be paid by Customer in respect of the remaining portion of the current License Term shall automatically accelerate, become immediately due and payable and shall survive termination of this Agreement. If Customer or any of Customer’s employees, consultants, authorized representatives or permitted third parties breach any term or condition of this Agreement, Ranorex may terminate this Agreement, without judicial or administrative resolution or obligation to refund and all amounts payable or promised to be paid by Customer in respect of the remaining portion of the current License Term shall automatically accelerate, become immediately due and payable and shall survive termination of this Agreement. This Agreement will terminate automatically (i) upon expiration or termination of all License Terms hereunder, or (ii) if Customer ceases to do business, becomes insolvent, goes or is put into receivership or liquidation, passes a resolution for its winding up (other than for the purpose of reconstruction or amalgamation) or for any of the foregoing, makes an arrangement for the benefit of its creditors, enters into bankruptcy, suspension of payments, moratorium, reorganization or any other proceeding that relates to insolvency or protection of creditors’ rights or takes or suffers any similar action in consequence of debt. Upon the termination of this Agreement for any reason, all rights granted to Customer hereunder will cease, and Customer will promptly (A) purge the Licensed Software and any related Updates from all of Customer’s computer systems, storage media and other files, (B) destroy the Licensed Material and all copies thereof and (C) deliver to Ranorex an affidavit certifying that Customer has complied with these termination obligations. The provision of Sections 1, 3, 8 through 15 and 17 shall survive the termination of this Agreement.
11. U.S. EXPORT RESTRICTIONS
Customer acknowledges that it may not re-export or divert the Licensed Material or any related technical information, document or mater¬ial, or direct derivatives thereof, to any country set forth on the U.S. Department of Commerce’s list of State Sponsors of Terror (currently, Iran, North Korea, Sudan and Syria), including any future changes to the government’s list of State Sponsors of Terror.
12. EQUITABLE RELIEF
The parties recognize that Sections 5, 9, 11 and 13 are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose. The parties agree that any breach of such Sections would cause the other party substantial and irreparable damage and therefore, in the event of any such breach, in addition to other remedies which may be available, the non-breaching party shall have the right to seek specific performance and other injunctive and equitable relief in a court of law.
13. REPORTING & AUDIT
(a) Reporting and Audit. – Ranorex reserves the right to gather data on license usage by Customer for each item of Licensed Software, including User Account information, computer or machine IP addresses, email addresses of users, domain counts and other information deemed relevant, to ensure that the Licensed Software is being used in accordance with the terms of this Agreement. Ranorex expressly prohibits domain count overrides without prior written approval. Customer hereby consents to Ranorex gathering and processing such usage information and agrees not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any unauthorized use of the Licensed Software by Customer or other use by Customer in violation of the restrictions contained in this Agreement shall be deemed a material breach of this Agreement. In addition to the foregoing, within ten (10) business days of Customer’s receipt of Ranorex’s written request, Customer shall provide to Ranorex a written report certifying to Ranorex the number of licenses for Licensed Software installed, used or accessed by Customer, the identity of the applicable machines, hardware or computers upon which such licenses are installed and, as applicable, the total number of concurrent users accessing or using such Licensed Software, in each case for the time period so specified in Ranorex’s written request, together with such other information as may be requested by Ranorex and necessary to confirm Customer’s compliance with the terms of this Agreement. The auditing, reporting and certification rights and obligations set forth in this Section 13(a) shall survive termination of this Agreement for a period of eighteen months.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, void, invalid or illegal, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
15. ENTIRE AGREEMENT
(a) Customer acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms. Customer and Ranorex further agree that, subject to clause (b) below, this Agreement, together with all Purchase Orders delivered in connection herewith and all exhibits, schedules and annexes hereto, is the complete and exclusive statement of the agreement between Customer and Ranorex and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement, including any shrink-wrap agreements, click-wrap agreements or demo or trial agreements which may accompany the Licensed Material or which may have been previously in force between the parties. Subject to clause (b) below, this Agreement may not be amended, modified, supplemented or altered except by a written agreement that is signed by both parties.
(b) UNDER NO CIRCUMSTANCES MAY THE TERMS OF THIS AGREEMENT OR ANY RANOREX PURCHASE ORDER BE AMENDED, MODIFIED, SUPPLEMENTED, ALTERED, SUPERSEDED OR REPLACED BY ANY NON-RANOREX INVOICE OR NON-RANOREX PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT DELIVERED BY CUSTOMER TO RANOREX. EACH PARTY ACKNOWLEDGES AND AGREES THAT, SOLELY AS A CONVENIENCE TO CUSTOMER AND ONLY FOR CUSTOMER’S INTERNAL ACCOUNTING PROCEDURES, CUSTOMER MAY DELIVER TO RANOREX A CUSTOMER INVOICE OR CUSTOMER PURCHASE ORDER OR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTION CONTEMPLATED HEREUNDER AND THAT NO ACTION BY RANOREX, INCLUDING RANOREX’S DELIVERY OF ANY LICENSED MATERIALS OR ACCEPTANCE OF PAYMENT, SHALL BE DEEMED TO BE ACCEPTANCE OF ANY OF THE TERMS OR CONDITIONS CONTAINED IN SUCH CUSTOMER INVOICE OR CUSTOMER PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT AND SUCH TERMS AND CONDITIONS SHALL BE VOID AND OF NO FORCE OR EFFECT, UNLESS ACCEPTED BY RANOREX PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY BOTH PARTIES.
16. TRIAL LICENSE
(a) If Customer is evaluating Evaluation Software (as defined below), then only the terms and conditions of this Section 16 (including those Sections of this Agreement incorporated in this Section 16 by reference) will govern Customer’s temporary use of such Evaluation Software (and no other terms of this Agreement shall apply to Customer or govern Customer’s use of Evaluation Software) and upon purchase of a commercial license for such Evaluation Software, this entire Agreement, exclusive of this Section 16, shall apply to Customer and govern all use of the Licensed Material.
(b) Ranorex is the owner and provider of certain proprietary software and documentation that Customer may request to use, from time to time, on a temporary basis for the sole purpose of testing and evaluating such software prior to purchasing a commercial license for such software (“Evaluation Software”). The Evaluation Software is valid for 30 days. All installation and usage of Evaluation Software by Customer requires a temporary license or trial license to be issued by Ranorex and Customer is only permitted to use Evaluation Software during the term of the temporary license or trial license issued by Ranorex.
(c) Evaluation Software is provided to Customer solely for evaluation purposes for Customer’s own testing and evaluation purposes (an “Evaluation”) and upon delivering a temporary license or trial license to Customer, Ranorex hereby grants Customer a non-transferable, nonexclusive, limited license to operate and use the Evaluation Software for such Evaluation during the period commencing on the date Customer downloads the Evaluation Software and ending on the expiration of the temporary license or trial license (including any extensions thereof authorized by Ranorex, the “Evaluation Period”). Customer agrees not to cause or permit the reverse engineering, disassembly, modification, translation or decompilation of any Evaluation Software. Customer shall not copy the Evaluation Software, or create or develop any derivative software based upon the Evaluation Software.
(d) Customer acknowledges that all Evaluation Software incor¬porates confidential and proprie¬tary information developed or acquired by or licensed to Ranorex and that all results of testing of the Evaluation Software, whether performed by Customer or another third party, are confidential. In no event will Customer publish or disclose the results of any testing or performance specifications of the Evaluation Software without Ranorex’s express prior written consent. Customer shall not remove or deface¬ of any confidentiality or proprietary notice placed on the Evaluation Software. The placement of copy¬right notices on Evaluation Software shall not consti¬tute publication or otherwise impair their confidential nature of such information.
(e) ALL EVALUATION SOFTWARE PROVIDED BY RANOREX IS DELIVERED “AS IS, WHERE IS” AND RANOREX SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. RANOREX DOES NOT WARRANT THAT THE EVALUATION SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. UNDER NO CIRCUMSTANCES WILL RANOREX OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CON-SEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCI¬DENTAL DAMAGES, WHETHER FORE¬SEE¬ABLE OR UNFORE¬SEEABLE OR WHETHER BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF EVALUATION SOFTWARE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF RANOREX OR ITS AUTHORIZED REPRESENTATIVES INCURRED IN ANY ACTION OR PROCEEDING RELATING TO CUSTOMER’S USE OF EVALUATION SOFTWARE EXCEED ONE HUNDRED DOLLARS.
(f) The Evaluation and the evaluation license granted under this Section 16 shall automatically terminate immediately upon the earliest of (i) the expiration of the Evaluation Period, (ii) the date upon which Customer purchases a commercial license for such Evaluation Software and (iii) the date upon which either party notifies the other party of its termination of the Evaluation. Upon expiration of the Evaluation Period or the Evaluation, Customer shall cease using and shall uninstall and destroy the Evaluation Software unless Customer has purchased a commercial license for such Evaluation Software on or prior to such expiration.
(g) Sections 1, 5, 8, 11, 14, 15 and 17(a) through 17(g) of this Agreement shall be deemed incorporated by this reference in this Section 16 and the Evaluation license granted under this Section 16.
(a) Customer shall not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity, whether by contract, merger or operation of the law, without Ranorex’s prior written consent. In the event of any merger of Customer or a sale of substantially all of the assets of Customer in which Customer is not the surviving entity, Customer may assign or transfer any licenses granted under this Agreement; provided, that Customer provides Ranorex with written notice of such transfer within thirty days of such merger or sale. Any assignment or delegation in breach of this Section 17(a) shall be void. This Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns.
(b) All notices or approvals required or permitted under this Agreement must be given in writing and delivered to the appropriate party at the address set forth in this Agreement or in any Purchase Order delivered in connection with this Agreement.
(c) The waiver of compliance with or breach of any term or condition of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other failure to comply or breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement. Unless otherwise specified herein, the rights and remedies of Ranorex set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.
(d) THIS AGREE¬MENT WILL BE GOVERNED BY AND INTER-PRETED IN ACCORDANCE WITH THE LAWS OF THE REPUBLIC OF AUSTRIA WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES. RANOREX AND CUSTOMER HEREBY IRREVOCABLY AGREE ON BEHALF OF THEMSELVES THAT THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY LITIGATION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE IN AN APPROPRIATE COURT IN AUSTRIA LOCATED IN THE CITY OF GRAZ.
(e) Unless otherwise specified herein, the rights and remedies of Ranorex set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.
(f) This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of business organization or agency relationship.
(g) Headings used in this Agreement are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of this Agreement. This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the parties hereto.
(h) In consideration of the mutual covenants contained herein, including the rights and licenses granted to Customer herein, the parties hereto do hereby agree that for a period of two years following Customer’s most recent purchase of any licenses or services, including Maintenance Service, from Ranorex or its authorized representative, Customer shall not solicit, induce, hire, engage, or attempt to hire or engage any employee of Ranorex, or in any other way interfere with Ranorex’s contractual or employment relations with any of its employees, nor will Customer hire or engage or attempt to hire or engage any individual who was an employee of Ranorex at any time during such two-year period.