Software License and Support
GALILEO SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD). GALILEO DOES NOT SELL OR TRANSFER TITLE TO SOFTWARE TO YOU. YOUR LICENSE OF GALILEO WILL NOT COMMENCE UNTIL YOU HAVE EXECUTED THIS AGREEMENT AND AN AUTHORISED REPRESENTATIVE OF GALILEO HAS RECEIVED, APPROVED, AND EXECUTED A COPY OF IT AS EXE-CUTED BY YOU.
Definitions. As used in this Agreement:
“Desktop” means a computer used by your employee or contractors.
"Instance" means one specific SAP instance with a specific SAP system-ID, the Software may be accessed from.
„Named User“ includes both humans and non-human operated devices or programs, accessing the Software. If Software is part of an environment in which multiplexing hardware or software is used, then all users and/or devices or programs must be licensed at the multiplexing front end. The same methodology applies for group accounts, where several end users may use the software by using the same login.
„SAP End User“ includes both humans and non-human operated devices or programs, accessing and using the SAP systems of the customer. If Software is part of an environment in which multiplexing hardware or software is used, then all types of users and/or devices or programs must be licensed at the multiplexing front end. The same methodology applies for group accounts, where several end users may use the software by using the same login.
“Software” means the object code version of Galileo software program(s) listed on the attached Order Schedule, together with any fixes, updates, modifications, enhancements, and new versions (if any) as may, from time to time, be provided to you as part of Galileo support service(s). The term “Software” also includes the documentation and other written materi-als packaged with this Agreement, together with such additional documentation and materials as may, from time to time, be provided by Galileo to you for use in connection with the Software (collectively, the “Documentation”).
“Intellectual Property” means any patent, copyright, registered design, design right, trade mark, service mark, domain name, know-how, database, or database right, trade secrets, confidential information or other intellectual property right in or relating to the Software and any applications of the same.
Grant of License.
In consideration of your payment of the applicable fee, Galileo grants you a timely limited, non-exclusive, non-transferable license to use the Software as expressly stated within the attached Order Schedule and based on the terms and conditions set forth in this Agreement. You may use the Software only for the internal benefit of your business. The number of Desk-tops, Instances, Named User or SAP End Users entitled to have access to and use of the Software is determined by the type of package and product licensed to you as set forth the attached Order Schedule. You may make a reasonable number of archival copies of the Software for back-up purposes.
This Agreement does not grant you any right to use the Software except as expressly set forth herein, nor does it grant you any ownership right, title or interest in or to the Software. All right, title and interest in and to the Intellectual Property in the Software are and shall remain with Galileo and/or Galileo’s suppliers. You agree to reproduce the copyright and other notices relating to the rights of Galileo and its suppliers on every copy or partial copy of the Software you make. You may not remove, obscure, or modify any such notices without Galileo’s prior written consent.
Protection of Intellectual Property.
You acknowledge that the Software contains Intellectual Property including confidential and proprietary information and substantial and valuable trade secrets of Galileo and its third party suppliers. You agree to use the same care to protect the Software against any use, copying, disclosure or dissemination not expressly authorized by this Agreement that you use to protect your own most valuable proprietary information and materials, but in no event less than the care a reasonable business person would use under similar circumstances. Without limiting the foregoing, you may not give any third party access to the Software, except third-party contractors who need access to the Software to perform services for you and who have signed a non-disclosure agreement agreeing to protect the confidentiality of the Software. You shall notify Gali-leo immediately if you become aware of any unauthorized use of the whole or any part of the Software by any person. The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of this Agreement.
You may not, and you may not authorize or permit third parties to (a) use, copy, modify, or prepare derivative works of the Software or any part thereof, except as expressly authorized in this Agreement; (b) distribute, lease, sublicense, lend, give, transfer, assign or otherwise make all or any portion of the Software available to any third party, except as expressly au-thorized in Paragraph 17 of this Agreement; (c) reverse engineer, decompile or disassemble the Software or cause or allow discovery of the source code of the Software or attempt to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law; (d) use the Software to manage or process documents or data on behalf of any third party without Galileo’s prior written consent; (e) use the Software for any multiple-user or time-sharing arrangement, or for any dial-up, remote access, interactive or other on-line service (for example, an ASP service), or for any other type of commer-cial venture that generates revenue as a direct result of use of the Software (for example, a service bureau or a subscrip-tion service) without Galileo’s prior written consent.
Price and Payment.
In consideration for the license granted in this Agreement, you agree to pay the fees as stated in the attached Order Schedule. You also agree to pay directly or to reimburse Galileo for all sales, use or other taxes resulting from the transac-tion covered by this Agreement, except taxes based on Galileo’s net income. Terms of payment are due from the effective date, unless other terms have been agreed upon and made in writing and signed by a duly authorized representative of Galileo contained in the attached Order Schedule. In the event that you fail to make any payment within 30 days after the applicable payment date, Galileo may require you to pay interest at a rate of 4% above the base rate of the European Central Bank from the due date until payment in full is received.
Provided that Customer has elected to contract for (in an applicable Order Schedule) and paid the applicable Maintenance Fees, Galileo will provide Customer with maintenance and support services (as described in Exhibit A to this Agreement) , New Releases and Upgrades, if and when available (collectively referred to as “Maintenance Services”) for the Software to which the Maintenance Fees correspond. Galileo will have no obligation to provide Maintenance Services beyond the end of any Maintenance Services term (as set forth in the applicable Order Schedule) unless Customer elects to obtain addi-tional Maintenance Services by paying Galileo its current annual Maintenance renewal fee.
Effect of Cancellation of Maintenance Services.
In the event Customer elects not to obtain or renew Maintenance Services, Customer may continue to use the Software and supporting documentation pursuant to this Agreement but will have no further right to Maintenance Services for the Software.
Maintenance Services do not cover hardware, operating systems, networks, or third party Software not provided to Cus-tomer by Galileo. Additional fees will be charged for troubleshooting such third party product at Galileo’s normal and customary consulting rates.
Term and Termination.
This Agreement shall be effective from the date it is executed by both parties and shall continue to remain in effect unless terminated as provided for in this Agreement. Galileo may immediately terminate this Agreement by notice to you if you breach the terms and conditions of this Agreement and fail to cure such breach within thirty (30) days' notice of same. Upon the termination of this Agreement, you must (a) cease all use of the Software, (b) destroy or return to Galileo all copies of the Software in your possession or under your control, and (c) deliver to Galileo a certificate signed by an officer of your company verifying compliance with this Paragraph. Termination of this Agreement for any reason shall not affect any of the rights of the parties accrued prior to the date of such termination.
Galileo warrants, for your benefit alone (a) that it has the right to grant the license granted in this Agreement; and (b) that for a period of three (3) months after shipment of the Software, the Software, when operated with the equipment configu-ration and in the operating environment specified in the Documentation, will perform substantially in accordance with the technical specifications included or referred to in the Documentation.
As your sole and exclusive remedy for any defect or error covered by the warranty set forth in Paragraph 9 above, and as Galileo’s entire liability in contract, tort, or otherwise (subject to the disclaimer set out in paragraph 11 below), Galileo shall use commercially reasonable efforts to correct or cure such defect or error by issuing corrected instructions, a fix or a bypass. If Galileo has not corrected such defect or error within 4 weeks after receiving notice of the defect, you shall have the right to terminate this license with respect to the defective or nonconforming module(s) of the Software, and Galileo shall refund the amount paid by you as the license fee for the defective or nonconforming module(s) of the Software. These remedies are provided on the condition that (a) you report the defect or error within the warranty period and provide Galileo with information sufficient to allow Galileo to reproduce the defect or error; (b) you have not modified, misused or damaged the Software or used it with other software or equipment with which it is incompatible; and (c) Galileo’s exami-nation of the Software discloses that the defect or error actually existed. Ongoing Software support and maintenance is available from Galileo at additional cost.
DISCLAIMER OF WARRANTIES.
THE WARRANTIES SET FORTH IN PARAGRAPH 9 ARE IN LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES ON THE PART OF GALILEO AND ITS SUPPLIERS WITH RESPECT TO THE SOFTWARE. EXCEPT AS EXPRESSLY STATED IN PARA-GRAPH 9 AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, GALILEO MAKES NO WARRANTIES OR REPRESENTA-TIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, GALI-LEO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. ALL THIRD PARTY SOFTWARE IS PROVIDED WITHOUT WARRANTY OF ANY KIND, AND YOU ARE RESPONSIBLE FOR THE ENTIRE RISK WITH RESPECT TO ITS QUALITY AND PERFORMANCE.
Limitation on Liability.
To the extent permitted by law and save in respect of claims for personal injury or death arising from Galileo’s negligence, the maximum liability of Galileo to you for any cause whatsoever and regardless of the form of action, will be for direct costs and damages only and will be limited to the greater of:-
The sum for which Galileo carries comprehensive insurance cover; or
A sum equivalent to all the licence fees paid to Galileo by you for the Software licensed under this Agreement plus damag-es limited to 25% of the same amount for any additional costs directly, reasonably and necessarily incurred by you in ob-taining alternative products and/or services
In no event shall Galileo or its suppliers be liable for any damages resulting from loss of data, lost profits or revenues, loss of anticipated savings, loss of use of any software or hardware, interruption of business nor for any damages that are an indirect or secondary consequence of any act or omission of Galileo whether such damages were reasonably foreseeable or actually foreseen.
The parties hereby acknowledge and agree that the limitations contained in this paragraph 12 are reasonable in light of all the circumstances.
Indemnification for Infringement.
If a third party claims that the Software infringes any patent, copyright, trade secret or similar intellectual property right of a third party, and provided that you are not in default under this Agreement, Galileo shall defend you against such claim at Galileo’s expense and pay all damages that a court finally awards against you; provided, however, that you promptly notify Galileo in writing of the claim, and allow Galileo to control such a claim, and cooperate with Galileo in, the defense or settlement of the claim. If such a claim is made or appears possible, Galileo may, at its option, secure for you the right to continue to use the Software, modify or replace the Software so that it is non-infringing but retains substantially the same functionality, or, if neither of the foregoing options is reasonably available (in Galileo’s sole opinion), require you to return the infringing module(s) of the Software for a refund equal to your net book value for such module(s) determined in ac-cordance with generally accepted accounting principles. Galileo shall have no obligation to indemnify you (as set out in this Paragraph) for any claim (a) based on your modification or misuse of the Software, or (b) based on the combination, operation or use of the Software with any product, data or apparatus not specified or provided by Galileo, if the claim would have been avoided had the Software not been combined, operated or used with such product, data or apparatus. THIS PARAGRAPH STATES GALILEO’s ENTIRE OBLIGATION TO YOU AND YOUR SOLE REMEDY FOR CLAIMS OF INFRINGE-MENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OR FOR BREACH OF THE WARRANTY SET OUT IN PARAGRAPH 9 ABOVE.
Indemnification for Infringement by You.
You agree to defend, indemnify, and hold harmless Galileo and its third-party suppliers from and against any claims, loss, liability, or damages (including, but not limited to, reasonable legal fees) arising out of your operation or use of the Soft-ware with any third-party content accessed using the Software. YOUR USE OF ANY THIRD PARTY MATERIALS OBTAINED BY USE OF THE SOFTWARE IS SUBJECT TO APPLICABLE COPYRIGHT LAWS AND NEITHER GALILEO NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY INFRINGEMENT.
You acknowledge that the use, copying, disclosure or dissemination of the Software, or the Intellectual Property rights embodied therein, in a manner not authorized by this Agreement would cause irreparable harm to Galileo that could not be fully remedied by monetary damages. You therefore agree that Galileo shall be entitled, in addition to any other reme-dies available to it at law or in equity, to such injunctive or other equitable relief as may be necessary or appropriate to prevent such unauthorized use or disclosure without the necessity of proving actual or irreparable damage by reason of any such unauthorized use, disclosure, dissemination or copying.
The validity, construction and performance of this Agreement shall be governed by German Law. Any dispute arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of Germany. The place of jurisdiction shall be Munich.
You may not transfer or assign your rights or obligations under this Agreement without Galileo ’s prior written consent except that you may assign your rights and obligations under this Agreement to your successor in interest by merger, oper-ation of law or otherwise, or to any individual or entity that purchases your entire business, provided your successor as-sumes in writing all of your obligations under this Agreement
All notices, demands and requests required or permitted to be given under this Agreement shall be in writing and delivered (a) personally or by local courier, (b) by a nationally recognized overnight courier or (c) by recorded delivery mail, return receipt requested, postage prepaid and addressed to the parties at their respective addresses set forth above. Notices shall be effective upon receipt if delivered personally, by local courier or by recorded mail and on the next business day if sent by overnight courier.
The parties hereby undertake to comply with the provisions any related legislation insofar as the same relates to the provisions and obligations of this Agreement.
For the purposes of Paragraphs 12 and 14 Galileo includes its employees, sub-contractors and suppliers. You acknowledge that Galileo’s employees, sub-contractors and suppliers shall have the benefit of the limits and exclusions of liability set out in those paragraphs and, subject to that, the parties confirm their intent not to confer any rights on any other third parties by virtue of this Agreement.
No amendment to this Agreement shall be binding unless made in writing and signed by a duly authorized representative of the party against whom enforcement is sought. Whenever the consent of a party is required, such consent may be withheld in that party’s sole and absolute discretion. The failure of either party at any time to require performance of any provision of this Agreement or to exercise any right provided for herein shall not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by either party of any breach of any provision of this Agreement or of any right provided for herein shall be con-strued as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under this Agreement. All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise. This Agreement contains the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all previous communications, negotiations and agreements, whether oral or written, between the parties with respect to such subject matter. Any obligations that by their nature continue after the expiration of this Agreement shall remain binding upon the parties.