RillRate Stack License Agreement
Last update: 27 Jan 2022
This RillRate Stack License Agreement (“Agreement”) is a legal agreement for the licensing of Licensed Software (as defined below) between RillRate (as defined below) and the Licensee who has accepted the terms of this Agreement by downloading or using the Licensed Software and/or as defined herein:
Capitalized terms used herein are defined in Section 1.
(A) Licensee wishes to use the Licensed Software for the purpose of developing and distributing Applications and/or Devices (each as defined below); and
(B) RillRate is willing to grant the Licensee a right to use Licensed Software for such a purpose pursuant to term and conditions of this Agreement.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
“Affiliate” of a Party shall mean an entity (i) which is directly or indirectly controlling such Party; (ii) which is under the same direct or indirect ownership or control as such Party; or (iii) which is directly or indirectly owned or controlled by such Party. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty percent (50 %) or more of the votes in such entity, is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
“Add-on Products” shall mean RillRate’s specific add-on software products (for example Trading Pack, Business Pack), which are not licensed as part of RillRate’s standard offering, but shall be included into the scope of Licensed Software only if so specifically agreed between the Parties.
“Applications” shall mean Licensee's software products created using the Licensed Software, which may include the Redistributables, or part thereof.
“Contractor(s)” shall mean third party consultants, distributors and contractors performing services to the Licensee under applicable contractual arrangement.
“Customer(s)” shall mean Licensee’s end users to whom Licensee, directly or indirectly, distributes copies of the Redistributables.
“Data Protection Legislation” shall mean the General Data Protection Regulation (EU 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, as may be amended or updated from time to time, as well as any other data protection laws or regulations applicable in relevant territory.
“Deployment Platforms” shall mean operating systems and/or hardware specified in the License Certificate, on which the Redistributables can be distributed pursuant to the terms and conditions of this Agreement.
“Designated User(s)” shall mean 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. Designated Users shall be named in the License Certificate.
“Development License” shall mean the license needed by the Licensee for each Designated User to use the Licensed Software under the license grant described in Section 3.1 of this Agreement.
“Development Platforms” shall mean those operating systems specified in the License Certificate, in which the Licensed Software can be used under the Development License, but not distributed in any form or used for any other purpose.
“Devices” shall mean hardware devices or products that 1) are manufactured and/or distributed by the Licensee or its Affiliates or Contractors, and (2)(i) incorporate or integrate the Redistributables or parts thereof; or (ii) where the main user interface or substantial functionality of such unit , when used by a Customer, is provided by Application(s) or otherwise depends on the Licensed Software, regardless of whether the Redistributables are distributed together with the hardware or not. Devices covered with this Agreement shall be specified in Appendix 2 or in a quote.
“Distribution License(s)” shall mean the license required for any kind of sale, trade, exchange, loan, lease, rental or other distribution by or on behalf of Licensee to a third party of Redistributables in connection with Devices pursuant to license grant described in Section 3.3 of this Agreement.
“Distribution License Packs” shall mean set of prepaid Distribution Licenses for distribution of Redistributables, as defined in RillRate’s standard price list, quote, Purchase Order confirmation or in an appendix hereto, as the case may be.
“Intellectual Property Rights” shall mean patents (including utility models), design patents, and designs (whether or not capable of registration), chip topography rights and other like protection, copyrights, trademarks, service marks, trade names, logos or other words or symbols and any other form of statutory protection of any kind and applications for any of the foregoing as well as any trade secrets.
“License Certificate” shall mean a certificate generated by RillRate for each Designated User respectively upon them downloading the Licensed Software, which will be available under respective Designated User’s RillRate Account at account.rillrate.com. License Certificates will specify the Designated User, the Development Platforms, Deployment Platforms and the License Term. Such terms are considered part of the licenses granted hereunder and shall be updated from time to time to reflect any agreed changes to the foregoing terms relating to Designated User’s rights to the Licensed Software.
“License Fee” shall mean the fee charged to the Licensee for rights granted under the terms of this Agreement.
“License Term” shall mean the agreed validity period of the Development License of the respective Designated User, during which time the Designated User is entitled to use the Licensed Software, as set forth in the respective License Certificate.
“Licensed Software” shall mean either
(i) RillRate Stack or
(ii) selected Add-on Products, if any,
depending on which product(s) the Licensee has purchased under this Agreement, as well as corresponding online or electronic documentation, associated media and printed materials, including the source code (where applicable), example programs and the documentation, licensed to the Licensee under this Agreement. Licensed Software does not include Third Party Software (as defined in Section 4). RillRate may, in the course of its development activities, at its free and absolute discretion and without any obligation to send or publish any notifications to the Licensee or in general, 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” shall mean the individual or legal entity that is party to this Agreement, as identified on the signature page hereof.
“Licensee’s Records” shall mean books and records that are likely to contain information bearing on Licensee’s compliance with this Agreement, Licensee’s use of Licensed Software and/or the payments due to RillRate under this Agreement, including, but not limited to user information, assembly logs, sales records and distribution records.
“Modified Software” shall have the meaning as set forth in Section 2.3.
“Online Services” shall mean any services or access to systems made available by RillRate to the Licensee over the Internet relating to the Licensed Software or for the purpose of use by the Licensee of the Licensed Software or Support. Use of any such Online Services is discretionary for the Licensee and some of them may be subject to additional fees.
“RillRate Open” shall mean the non-commercial RillRate computer software products, licensed under other open source licenses approved by Open Source Initiative as listed on https://opensource.org/licenses.
”Party” or “Parties” shall mean Licensee and/or RillRate.
“Permitted Software” shall mean any (i) open source software that is a) generally available for public in source code form without additional cost under any of the licenses approved by Open Source Initiative as listed on https://opensource.org/licenses; and (b) is in no way, directly or indirectly, developed by or for or otherwise related to or in the interest of the Licensee or its Affiliates, or (ii) software RillRate has made available via its RillRate Marketplace online distribution channel.
“Pre-Release Code” shall have the meaning as set forth in Section 4.
“Prohibited Combination” shall mean any means to (i) use, combine, incorporate, link or integrate Licensed Software with any software created with or incorporating RillRate Open, (ii) use RillRate Open for creation of any software created with or incorporating Licensed Software, or (iii) incorporate or integrate Applications into a hardware device or product other than a Device.
"Redistributables" shall mean the portions of the Licensed Software set forth in Appendix 1 that may be distributed pursuant to the terms of this Agreement in object code form only, including any relevant documentation. Where relevant, any reference to Licensed Software in this Agreement shall include and refer also to Redistributables.
“Renewal Term” shall mean an extension of previous License Term as agreed between the Parties.
“Submitted Modified Software” shall have the meaning as set forth in Section 2.3.
“Support” shall mean standard developer support that is provided by RillRate to assist Designated Users in using the Licensed Software in accordance with RillRate’s standard support terms available at https://rillrate.com/legal/terms/ and as further defined in Section 8 hereunder.
“Taxes” shall have the meaning set forth in Section 10.5.
“Term” shall have the meaning set forth in Section 12.
“RillRate” shall mean a private limited company RillRate OÜ (registry code 16147745) that is registered at Harju maakond, Tallinn, Kesklinna linnaosa, Tornimäe tn 7-26, 10145.
"Third-Party Software" shall have the meaning set forth in Section 4.
“Updates” shall mean a release or version of the Licensed Software containing bug fixes, error corrections 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 Licensed Software version number. RillRate shall make Updates available to the Licensee under the Support. Updates shall be considered as part of the Licensed Software hereunder.
“Upgrades” shall mean a release or version of the Licensed Software containing enhancements and new features and are generally depicted as a change to the first digit of the Licensed Software version number. In the event Upgrades are provided to the Licensee under this Agreement, they shall be considered as part of the Licensed Software hereunder.
2.1. Ownership of RillRate
The Licensed Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Licensed Software is licensed, not sold.
All of RillRate's Intellectual Property Rights are and shall remain the exclusive property of RillRate or its licensors respectively.
2.2. Ownership of Licensee
All the Licensee's Intellectual Property Rights are and shall remain the exclusive property of the Licensee or its licensors respectively.
All Intellectual Property Rights to the Modified Software, Applications and Devices shall remain with the Licensee and no rights thereto shall be granted by the Licensee to RillRate under this Agreement (except as set forth in Section 2.3 below).
2.3. Modified Software
Licensee may create bug-fixes, error corrections, patches or modifications to the Licensed Software (“Modified Software”). Such Modified Software may break the source or binary compatibility with the Licensed Software (including without limitation through changing the application programming interfaces ("API") or by adding, changing or deleting any variable, method, or trait signature and its implementations in the Licensed Software and/or any inter-process protocols, services or standards in the Licensed Software libraries and crates). To the extent that Licensee’s Modified Software so breaks source or binary compatibility with the Licensed Software, Licensee acknowledges that RillRate's ability to provide Support may be prevented or limited and Licensee's ability to make use of Updates may be restricted.
Licensee may, at its sole and absolute discretion, choose to submit Modified Software to RillRate (“Submitted Modified Software”) in connection with Licensee’s Support request, service request or otherwise. In the event Licensee does so, then, Licensee hereby grants RillRate a sublicensable, assignable, irrevocable, perpetual, worldwide, non-exclusive, royalty-free and fully paid-up license, under all of Licensee’s Intellectual Property Rights, to reproduce, adapt, translate, modify, and prepare derivative works of, publicly display, publicly perform, sublicense, make available and distribute such Submitted Modified Software as RillRate sees fit at its free and absolute discretion.
3. LICENSES GRANTED
3.1. Development with Licensed Software
Subject to the terms of this Agreement, RillRate grants to Licensee a worldwide, non-exclusive, non-transferable license, valid for the License Term, to use, modify and copy the Licensed Software by Designated Users on the Development Platforms for the sole purposes of designing, developing, demonstrating and testing Application(s) and/or Devices, and to provide thereto related support and other related services to end-user Customers.
Licensee may install copies of the Licensed Software on three (3) computers per Designated User, provided that only the Designated Users who have a valid Development License may use the Licensed Software.
Licensee may at any time designate another Designated User to replace a then-current Designated User by notifying RillRate in writing, provided that any Designated User may be replaced only once during any six-month period.
Upon expiry of the initially agreed License Term, the respective License Terms shall be automatically extended to one or more Renewal Term(s), unless and until either Party notifies the other Party in writing, or any other method acceptable to RillRate, that it does not wish to continue the License Term, such notification to be provided to the other Party no less than thirty (30) days before expiry of the respective License Term. Unless otherwise agreed between the Parties, Renewal Term shall be of equal length with the initial License Term.
Any such Renewal Term shall be subject to License Fees agreed between the Parties or, if no advance agreement exists, subject to RillRate’s standard pricing applicable at the commencement date of any such Renewal Term.
Any price or other term specified for a Renewal Term shall be valid only for the specified time.
RillRate may either request the Licensee to place a purchase order corresponding to a quote by RillRate, or uses Licensees stored Credit Card information in the RillRate Account to automatically charge the Licensee for the relevant Renewal Term.
3.2. Distribution of Applications
Subject to the terms of this Agreement, RillRate grants to Licensee a worldwide, non-exclusive, non-transferable, revocable (for cause pursuant to this Agreement) right and license, valid for the Term, to
(i) distribute, by itself or through its Contractors, Redistributables as installed, incorporated or integrated into Applications for execution on the Deployment Platforms, and
(ii) grant sublicenses to Redistributables, as distributed hereunder, for Customers solely for Customer’s internal use and to the extent necessary in order for the Customers to use the Applications for their respective intended purposes.
Right to distribute the Redistributables as part of an Application as provided herein is not royalty-bearing but is conditional upon the Licensee not having any unpaid License Fees for Development Licenses owed to RillRate at the time of distribution of any Redistributables to Customers.
3.3. Distribution of Devices
Subject to the terms of this Agreement, RillRate grants to Licensee a worldwide, non-exclusive, non-transferable, revocable (for cause pursuant to this Agreement) right and license, valid for the Term, to
(i) distribute, by itself or through one or more tiers of Contractors, Redistributables as installed, incorporated or integrated, or intended to be installed, incorporated or integrated into Devices for execution on the Deployment Platforms, and
(ii) grant sublicenses to Redistributables, as distributed hereunder, for Customers solely for Customer’s internal use and to the extent necessary in order for the Customers to use the Devices for their respective intended purposes.
Right to distribute the Redistributables with Devices as provided herein is conditional upon the Licensee (i) not having any unpaid License Fees for Development Licenses owed to RillRate, and (ii) having purchased and paid corresponding Distribution Licenses at the time of distribution of any Redistributables to Customers.
3.4. Further Requirements
The licenses granted above in this Section 3 by RillRate to Licensee are conditional and subject to Licensee's compliance with the following terms:
(i) Licensee shall not remove or alter any copyright, trademark or other proprietary rights notice(s) contained in any portion of the Licensed Software;
(ii) Applications must add primary and substantial functionality to the Licensed Software so as not to compete with the Licensed Software;
(iii) Applications may not pass on functionality which in any way makes it possible for others to create software with the Licensed Software; provided however that Licensee may use the Licensed Software's scripting and configuring functionality solely in order to enable scripting, themes and styles that augment the functionality and appearance of the Application(s) without adding primary and substantial functionality to the Application(s);
(iv) Licensee shall not use Licensed Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual property or right of any third party, or that violates any applicable law;
(v) Licensee shall not use RillRate's or any of its suppliers' names, logos, or trademarks to market Applications, except that Licensee may use “Built with Ri!” logo to indicate that Application(s) was developed using the Licensed Software;
(vi) Licensee shall not distribute, sublicense or disclose source code of Licensed Software to any third party (provided however that Licensee may appoint employee(s) of Contractors as Designated Users to use Licensed Software pursuant to this Agreement). Such right may be available for the Licensee subject to a separate software development kit (“SDK”) license agreement to be concluded with RillRate;
(vii) Licensee shall not grant the Customers a right to (i) make copies of the Redistributables except when and to the extent required to use the Applications and/or Devices for their intended purpose, (ii) modify the Redistributables or create derivative works thereof, (iii) decompile, disassemble or otherwise reverse engineer Redistributables, or (iv) redistribute any copy or portion of the Redistributables to any third party, except as part of the onward sale of the Device on which the Redistributables are installed;
(viii) Licensee shall not and shall cause that its Affiliates or Contractors shall not use Licensed Software in any Prohibited Combination, unless Licensee has received an advance written permission from RillRate to do so. Absent such written permission, any and all distribution by the Licensee during the Term of a hardware device or product a) which incorporate or integrate any part of Licensed Software or RillRate Open; or b) where the main user interface or substantial functionality is provided by software built with Licensed Software or RillRate Open or otherwise depends on the Licensed Software or RillRate Open, shall be considered to be Device distribution under this Agreement and shall be dependent on Licensee’s compliance thereof (including but not limited to obligation to pay applicable License Fees for such distribution). Notwithstanding what is provided above in this sub-section (viii), Licensee is entitled to use and combine Licensed Software with any Permitted Software;
(ix) Licensee shall cause all of its Affiliates and Contractors entitled to make use of the licenses granted under this Agreement, to be contractually bound to comply with the relevant terms of this Agreement and not to use the Licensed Software beyond the terms hereof and for any purposes other than operating within the scope of their services for Licensee. Licensee shall be responsible for any and all actions and omissions of its Affiliates and Contractors relating to the Licensed Software and use thereof (including but not limited to payment of all applicable License Fees);
(x) Except when and to the extent explicitly provided in this Section 3, Licensee shall not transfer, publish, disclose, display or otherwise make available the Licensed Software; and
(xi) Licensee shall not attempt or enlist a third party to conduct or attempt to conduct any of the above.
Above terms shall not be applicable if and to the extent they conflict with any mandatory provisions of any applicable laws.
Any use of Licensed Software beyond the provisions of this Agreement is strictly prohibited and requires an additional license from RillRate.
4. THIRD-PARTY SOFTWARE
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. In some cases, access to Third-Party Software may be included with the Licensed Software. Such Third-Party Software will be listed in the source tree delivered with the Licensed Software or documented in the Licensed Software, as such may be 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.
5. PRE-RELEASE CODE
The Licensed Software may contain pre-release code and functionality, or sample code marked or otherwise stated with appropriate designation such as “Technology Preview”, “Alpha”, “Beta”, “Sample” etc. (“Pre-Release Code”).
Such Pre-Release Code may be present complimentary for the Licensee, in order to provide experimental support or information for new platforms or preliminary versions of one or more new functionalities or for other similar reasons. The Pre-Release Code may not be at the level of performance and compatibility of a final, generally available, product offering. The Pre-Release Code may not operate correctly, may contain errors and may be substantially modified by RillRate prior to the first commercial product release, if any. RillRate is under no obligation to make Pre-Release Code commercially available, or provide any Support or Updates relating thereto. RillRate assumes no liability whatsoever regarding any Pre-Release Code, but any use thereof is exclusively at Licensee’s own risk and expense.
For clarity, unless Licensed Software specifies different license terms for the respective Pre-Release Code, the Licensee is entitled to use such pre-release code pursuant to Section 3, just like other Licensed Software, provided however that in the event Add-on Products are included and available as such Pre-Release Code, Licensee’s right to use such Add-on Products is nevertheless subject to and conditional upon conclusion of separate agreement with RillRate.
6. LIMITED WARRANTY AND WARRANTY DISCLAIMER
RillRate hereby represents and warrants that it has the power and authority to grant the rights and licenses granted to Licensee under this Agreement.
Except as set forth above, the Licensed Software is licensed to Licensee "as is" and Licensee’s exclusive remedy and RillRate’s entire liability for errors in the Licensed Software shall be limited, at RillRate’s option, to correction of the error, replacement of the Licensed Software or return of the applicable fees paid for the defective Licensed Software for the time period during which the License is not able to utilize the Licensed Software under the terms of this Agreement.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RILLRATE ON BEHALF OF ITSELF AND ITS LICENSORS, SUPPLIERS AND AFFILIATES, DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH REGARD TO THE LICENSED SOFTWARE. RILLRATE DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL SATISFY LICENSEE’S REQUIREMENTS OR THAT IT WILL OPERATE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED.
7. INDEMNIFICATION AND LIMITATION OF LIABILITY
7.1. Limitation of Liability
EXCEPT FOR (I) CASES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, AND (II) BREACH OF CONFIDENTIALITY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY 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 AGREEMENT.
EXCEPT FOR (I) CASES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, AND (II) BREACH OF CONFIDENTIALITY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE LICENSE FEES PAID OR PAYABLE TO RILLRATE FROM LICENSEE DURING THE PERIOD OF TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT RESULTING IN SUCH LIABILITY.
THE PROVISIONS OF THIS SECTION 7 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN RILLRATE AND LICENSEE AND THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, LICENSEE SHALL ALWAYS BE LIABLE TO PAY THE APPLICABLE LICENSE FEES CORRESPONDING TO ITS ACTUAL USE OF LICENSED SOFTWARE.
8. SUPPORT, UPDATES AND ONLINE SERVICES
Upon due payment of the agreed License Fees the Licensee will be eligible to receive Support and Updates and to use the Online Services during the License Term, provided, however, that in the event the License Term is longer than 36 months, the initial payment includes Support for only the first 12 months, unless the Parties specifically otherwise agree.
Unless otherwise decided by RillRate at its free and absolute discretion, Upgrades will not be included in the Support but may be available subject to additional fees.
From time to time RillRate may change the Support terms, provided that during the respective ongoing License Term the level of Support provided by RillRate may not be reduced without the consent of the Licensee.
Unless otherwise agreed, RillRate shall not be responsible for providing any service or support to Customers.
Each Party acknowledges that during the Term of this Agreement each Party may receive information about the other Party's business, business methods, business plans, customers, business relations, technology, and other information, including the terms of this Agreement, that is confidential and of great value to the other Party, and the value of which would be significantly reduced if disclosed to third parties (“Confidential Information”). Accordingly, when a Party (the “Receiving Party”) receives Confidential Information from the other Party (the “Disclosing Party”), the Receiving Party shall only disclose such information to employees and Contractors on a need to know basis, and shall cause its employees and employees of its Affiliates to: (i) maintain any and all Confidential Information in confidence; (ii) not disclose the Confidential Information to a third party without the Disclosing Party's prior written approval; and (iii) not, directly or indirectly, use the Confidential Information for any purpose other than for exercising its rights and fulfilling its responsibilities pursuant to this Agreement. Each Party shall take reasonable measures to protect the Confidential Information of the other Party, which measures shall not be less than the measures taken by such Party to protect its own confidential and proprietary information.
Obligation of confidentiality shall not apply to information that (i) is or becomes generally known to the public through no act or omission of the Receiving Party; (ii) was in the Receiving Party's lawful possession prior to the disclosure hereunder and was not subject to limitations on disclosure or use; (iii) is developed independently by employees or Contractors of the Receiving Party or other persons working for the Receiving Party who have not had access to the Confidential Information of the Disclosing Party, as proven by the written records of the Receiving Party; (iv) is lawfully disclosed to the Receiving Party without restrictions, by a third party not under an obligation of confidentiality; or (v) the Receiving Party is legally compelled to disclose, in which case the Receiving Party shall notify the Disclosing Party of such compelled disclosure and assert the privileged and confidential nature of the information and cooperate fully with the Disclosing Party to limit the scope of disclosure and the dissemination of disclosed Confidential Information to the minimum extent necessary.
The obligations under this Section 9 shall continue to remain in force for a period of five (5) years after the last disclosure, and, with respect to trade secrets, for so long as such trade secrets are protected under applicable trade secret laws.
10. FEES, DELIVERY AND PAYMENT
10.1. License Fees
License Fees are described in RillRate’s standard price list, quote or Purchase Order confirmation or in an appendix hereto, as the case may be.
The License Fees shall not be refunded or claimed as a credit in any event or for any reason whatsoever.
10.2. Ordering Licenses
Licensee may purchase Development Licenses and Distribution Licenses pursuant to agreed pricing terms or, if no specific pricing terms have been agreed upon, at RillRate's standard pricing terms applicable at the time of purchase. Unless specifically otherwise provided, any pricing terms referenced in this Agreement shall be valid for twelve (12) months from the date of this Agreement.
Licensee shall submit all purchase orders for Development Licenses and Distribution Licenses to RillRate by email or any other method acceptable to RillRate (each such order is referred to herein as a “Purchase Order”) for confirmation, whereupon the Purchase Order shall become binding between the Parties.
10.3. Distribution License Packs
Unless otherwise agreed, Distribution Licenses shall be purchased by way of Distribution License Packs.
Upon due payment of the ordered Distribution License Pack(s), the Licensee will have an account of Distribution Licenses available for distributing the Redistributables in accordance with this Agreement.
Each time Licensee distributes a copy of Redistributables, then one Distribution License is used, and Licensee’s account of available Distribution Licenses is decreased accordingly.
Licensee may distribute copies of the Redistributables so long as Licensee has Distribution Licenses remaining on its account.
10.4. Payment Terms
License Fees and any other charges under this Agreement shall be paid by Licensee no later than thirty (30) days from the date of the applicable invoice from RillRate.
RillRate will submit an invoice to Licensee after the date of this Agreement and/or after RillRate receives a Purchase Order from Licensee.
A late payment charge of the lower of (a) one percent per month; or (b) the interest rate stipulated by applicable law, shall be charged on any unpaid balances that remain past due.
All License Fees and other charges payable hereunder are gross amounts but exclusive of any value added tax, use tax, sales tax, withholding tax and other taxes, duties or tariffs (“Taxes”) levied directly for the sale, delivery or use of Licensed Software hereunder pursuant to any applicable law. Such applicable Taxes shall be paid by Licensee to RillRate, or, where applicable, in lieu of payment of such Taxes to RillRate, Licensee shall provide an exemption certificate to RillRate and any applicable authority.
11. RECORD-KEEPING AND REPORTING OBLIGATIONS; AUDIT RIGHTS
11.1. Licensee’s Record-keeping
Licensee shall at all times during the Term of this Agreement and for a period of seven (7) years thereafter maintain Licensee’s Records in an accurate and up-to-date form. Licensee’s Records shall be adequate to reasonably enable RillRate to determine Licensee’s compliance with the provisions of this Agreement. The records shall conform to general good accounting practices.
Licensee shall, within thirty (30) days from receiving RillRate’s request to that effect, deliver to RillRate a report based on Licensee’s Records, such report to contain information, in sufficient detail, on (i) number and identity of users working with Licensed Software or RillRate Open, (ii) copies of Redistributables distributed by Licensee during the most recent calendar quarter and/or any other term specified by RillRate, (iii) number of undistributed copies of Redistributables and corresponding number of unused Distribution Licenses remaining on Licensee’s account, and (iv) any other information as RillRate may reasonably require from time to time.
11.2. RillRate’s Audit Rights
RillRate or an independent auditor acting on behalf of RillRate’s, may, upon at least five (5) business days’ prior written notice and at its expense, audit Licensee with respect to the Licensee’s use of the Licensed Software, but not more frequently than once during each 6-month period. Such audit may be conducted by mail, electronic means or through an in-person visit to Licensee’s place of business. Any such in-person audit shall be conducted during regular business hours at Licensee's facilities and shall not unreasonably interfere with Licensee's business activities. RillRate or the independent auditor acting on behalf of RillRate shall be entitled to inspect Licensee’s Records and conduct necessary interviews of Licensee’s relevant employees and Contractors. All such Licensee’s Records and use thereof shall be subject to an obligation of confidentiality under this Agreement.
If an audit reveals that Licensee is using the Licensed Software beyond scope of the licenses Licensee has paid for, Licensee agrees to pay RillRate any amounts owed for such unauthorized use within 30 days from receipt of the corresponding invoice from RillRate.
In addition, in the event the audit reveals a material violation of the terms of this Agreement (without limitation, either (i) underpayment of more than 10 % of License Fees or 10,000 euros (whichever is more) or (ii) distribution of products, which include or result from Prohibited Combination, shall be deemed a material violation for purposes of this section), then the Licensee shall pay RillRate's reasonable cost of conducting such audit.
12. TERM AND TERMINATION
12.1. Agreement Term
This Agreement shall enter into force upon due acceptance by both Parties and remain in force for as long as there is any Development License(s) purchased under this Agreement in force (“Term”), unless and until terminated pursuant to the terms of this Section 12.
12.2. Termination and suspension of rights
Either Party shall have the right to terminate this Agreement upon thirty (30) days prior written notice if the other Party commits a material breach of any obligation of this Agreement and fails to remedy such breach within such notice period.
Instead of termination, RillRate shall have the right to suspend or withhold grants of all rights to the Licensed Software hereunder, including but not limited to the Development Licenses, Distribution License, and Support, should Licensee fail to make payment in timely fashion or otherwise violates or is reasonably suspected to violate its obligations or terms of this Agreement, and where such violation or breach is not cured within five (5) business days following RillRate’s written notice thereof.
12.3. Mutual Right to Terminate
Either Party shall have the right to terminate this Agreement immediately upon written notice in the event that the other Party becomes insolvent, files for any form of bankruptcy, makes any assignment for the benefit of creditors, has a receiver, administrative receiver or officer appointed over the whole or a substantial part of its assets, ceases to conduct business, or an act equivalent to any of the above occurs under the laws of the jurisdiction of the other Party.
12.4. Parties´ Rights and Duties upon Termination
Upon expiry or termination of the Agreement, Licensee shall cease and shall cause all Designated Users (including those of its Affiliates’ and Contractors’) to cease using the Licensed Software and distribution of the Redistributables under this Agreement.
Notwithstanding the above, in the event the Agreement expires or is terminated:
(i) as a result of RillRate choosing not to renew the Development License(s) as set forth in Section 3.1, and where such decision of non-renewal is not due to any ongoing breach or alleged breach (as reasonably determined by RillRate) by Licensee of the terms of this Agreement or any applicable license terms of RillRate Open, then all valid licenses possessed by the Licensee at such date shall be extended to be valid in perpetuity under the terms of this Agreement and Licensee is entitled to purchase additional licenses as set forth in Section 10.2; or
(ii) for reason other than by RillRate pursuant to item (i) above or pursuant to Section 12.2, then the Licensee is entitled, for a period of six (6) months after the effective date of termination, to continue distribution of Devices under the Distribution Licenses paid but unused at such effective date of termination.
Upon any such termination the Licensee shall destroy or return to RillRate all copies of the Licensed Software and all related materials and will certify the same to RillRate upon its request, provided however that Licensee may retain and exploit such copies of the Licensed Software as it may reasonably require in providing continued support to Customers.
Expiry or termination of this Agreement for any reason whatsoever shall not relieve Licensee of its obligation to pay any License Fees accrued or payable to RillRate prior to the effective date of termination, and Licensee shall immediately pay to RillRate all such fees upon the effective date of termination. Termination of this Agreement shall not affect any rights of Customers to continue use of Applications and Devices (and therein incorporated Redistributables).
12.5. Extension in case of bankruptcy
In the event RillRate is declared bankrupt under a final, non-cancellable decision by relevant court of law, and this Agreement is not, at the date of expiry of the Development License(s) pursuant to Section 3.1, assigned to party, who has assumed RillRate’s position as a legitimate licensor of Licensed Software under this Agreement, then all valid licenses possessed by the Licensee at such date of expiry, and which the Licensee has not notified for expiry, shall be extended to be valid in perpetuity under the terms of this Agreement.
13. GOVERNING LAW AND LEGAL VENUE
14. GENERAL PROVISIONS
14.1. No Assignment
Except in the case of a merger or sale of substantially all of its corporate assets, Licensee shall not be entitled to assign or transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of RillRate, which shall not be unreasonably withheld or delayed. RillRate shall be entitled to freely assign or transfer any of its rights, benefits or obligations under this Agreement.
14.2. No Third-Party Representations
Licensee shall make no representations or warranties concerning the Licensed Software on behalf of RillRate. Any representation or warranty Licensee makes or purports to make on RillRate’s behalf shall be void as to RillRate.
14.3. Surviving Sections
Any terms and conditions that by their nature or otherwise reasonably should survive termination of this Agreement shall so be deemed to survive. Such sections include especially the following: 1, 2, 6, 7, 9, 11, 12.4, 13 and 14.
14.4. Entire Agreement
This Agreement, the exhibits hereto, the License Certificate and any applicable Purchase Order accepted by RillRate constitute the complete agreement between the Parties and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matters discussed herein.
In the event of any conflict or inconsistency between this Agreement and any Purchase Order, the terms of this Agreement will prevail over the terms of the Purchase Order with respect to such conflict or inconsistency.
Parties specifically acknowledge and agree that this Agreement prevails over any click-to-accept or similar agreements the Designated Users may need to accept online upon download of the Licensed Software, as may be required by RillRate’s applicable processes relating to Licensed Software.
No modification of this Agreement shall be effective unless contained in a writing executed by an authorized representative of each Party. No term or condition contained in Licensee's Purchase Order (“Deviating Terms”) shall apply unless RillRate has expressly agreed such Deviating Terms in writing. Unless and to the extent expressly agreed by RillRate, any such Deviating Terms shall be deemed void and with no legal effect. For clarity, delivery of the Licensed Software following the receipt of the Purchase Order including Deviating Terms shall not constitute acceptance of such Deviating Terms.”
14.6. Force Majeure
Except for the payment obligations hereunder, neither Party shall be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of act of God, terrorist attack or other similar unforeseeable catastrophic event that prevents either Party for fulfilling its obligations under this Agreement and which such Party cannot avoid or circumvent (“Force Majeure Event”). If the Force Majeure Event results in a delay or non-performance of a Party for a period of three (3) months or longer, then either Party shall have the right to terminate this Agreement with immediate effect without any liability (except for the obligations of payment arising prior to the event of Force Majeure) towards the other Party.
Any notice given by one Party to the other shall be deemed properly given and deemed received if specifically acknowledged by the receiving Party in writing or when successfully delivered to the recipient by hand, fax, or special courier during normal business hours on a business day to the addresses specified for each Party on the signature page. Each communication and document made or delivered by one Party to the other Party pursuant to this Agreement shall be in the English language.
14.8. Export Control
Licensee acknowledges that the Redistributables, as incorporated in Applications or Devices, may be subject to export control restrictions under the applicable laws of respective countries. Licensee shall fully comply with all applicable export license restrictions and requirements as well as with all laws and regulations relating to the Redistributables and exercise of licenses hereunder and shall procure all necessary governmental authorizations, including without limitation, all necessary licenses, approvals, permissions or consents, where necessary for the re-exportation of the Redistributables, Applications and/or Devices.
14.9. No Implied License
There are no implied licenses or other implied rights granted under this Agreement, and all rights, save for those expressly granted hereunder, shall remain with RillRate and its licensors. In addition, no licenses or immunities are granted to the combination of the Licensed Software with any other software or hardware not delivered by RillRate under this Agreement.
14.10. Attorney Fees
The prevailing Party in any action to enforce this Agreement shall be entitled to recover its attorney’s fees and costs in connection with such action.
Licensee acknowledges and agrees that for the purpose of this Agreement, RillRate may collect, use, transfer and disclose personal data pertaining to Designated Users as well as any other employees and directors of the Licensee and its Contractors relevant for carrying out the intent of this Agreement. Such personal data may be collected from the Licensee or directly from the relevant individuals. The Parties acknowledge that with regard to such personal data processed hereunder, RillRate shall be regarded as the Data Controller under the applicable Data Protection Legislation. RillRate shall process any such personal data in accordance with its privacy policies and practices, which will comply with all applicable requirements of the Data Protection Legislation.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.