MASTER LICENSE SERVICES AGREEMENT

SICAP SCHWEIZ AG

MASTER SOFTWARE LICENSE, MAINTENANCE, SUPPORT, AND SERVICES AGREEMENT

(“MASTER LICENSE AND SERVICES AGREEMENT” OR “MLSA”)

This Agreement is an agreement between Sicap Schweiz AG  (“SICAP”) and you (an individual or entity) (“Licensee”) and is effective as of the first date the Software is installed or License Keys are delivered, whichever is earlier. The current version of this Agreement is available at https://www.sicap.com/terms-conditions.  Any Order or SOW made pursuant to this Agreement is incorporated into and forms an integral part of this present Agreement.

For good and valuable consideration, SICAP and Licensee (each, a “Party” and collectively, the “Parties”) agree as follows:

  1. DEFINITIONS

“Confidential Information” or “CI” means any non-public, confidential information provided by one party to the other, including the Software and Documentation provided to Licensee and other information, data or materials relating to the business of either party as the case may be, including but not limited to information and materials concerning technology, business operations, customers and suppliers of the disclosing party.  “Confidential Information” does not include information or materials in the public domain;

“Device” means a managed IP device, a physical piece of equipment on a service provider’s network or located at a subscriber’s premise;

“Documentation” means the Specifications, system requirements, written operating instructions (including online instructions), release notes, maintenance and service level standards, training and support material, and user guides and manuals for the Software, as may be published or made available from time to time, and any other documentation created pursuant this Agreement or any associated agreement or SOW;

“IP Address” means the Internet Protocol Address, including a single active IP address allocated or a single IP address managed of a Subscriber;

“License” means a non-transferable license to use the Software in accordance with this Agreement solely on the device on which it was installed, as provided for in the applicable Order Form.

“License Key” means the permanent or temporary software license key provided by SICAP to Licensee to activate, start or permit access to the Software pursuant to a License granted to Licensee under this Agreement;

 “Order Form(s)” or “Order” means the applicable purchase order(s), quote(s) or order form(s) completed or issued by any party in connection with this Agreement and as accepted by SICAP;

Services” has the meaning set out in Section 2.2 below.

“Software” means the software referred to in the applicable Order Form(s) and any updates, upgrades, or bug fixes as may be provided from time to time pursuant to this Agreement or any associated agreement;

Solution” means any hardware, Software, Services or parts thereof, and any other deliverable or service provided by SICAP to Licensee under this Agreement, including, but not limited to, manuals, drawings or other documents, customization, design, project services, installation, and integration.

“SOW” has the meaning set out in Section 2.2.

“Specifications” means SICAP’s written description of the Software, release notes, operating environment, and any other specifications or technical descriptions related to the Software and as contained in the Documentation.

“Subscriber” means a single Licensee account established with Licensee that is valid and authorized to use the subscriber network in which the Software has been installed under this License.

  1. LICENSE AND SERVICES
    1. License
      1. The license granted herein is a non-exclusive, non-transferable (except as expressly set out herein) right to use the Software solely for the internal business purposes of Licensee as part of Licensee’s subscriber network in accordance with the terms of this Agreement and the Order Form(s).   If the term of the License for any Software product is not specified in the Order Form, then the term of such License shall be deemed to be perpetual, subject to compliance with this Agreement.
      1. The licensed use does not include any right to (i) copy, sell, rent, loan, transfer, make available to another party, sub-license, modify, adapt, translate, reverse engineer, or decompile the Software or (ii) provide hosted access to the Software to any person or operate the Software as part of a service bureau, other than for the business purposes of Licensee, unless specified in the applicable Order Form(s). Licensee may make one complete copy of the Software for backup or archive purposes only.
      1. The Software is protected by copyright and intellectual property laws.  All rights to the Software are owned by SICAP subject to any rights are expressly granted to Licensee in this Agreement. Certain aspects of the Software may be provided by third parties and Licensee hereby acknowledges and agrees that such aspects of the Software may be subject to additional terms and conditions and that such third parties shall have the right to directly enforce Licensee’s compliance with such terms and conditions.
      2. To prevent unauthorized installation and ensure compliance with Licensee’s obligations under this Agreement SICAP may, on an annual basis, request, and the Licensee shall provide, a written certification issued and signed by an officer of Licensee that Licensee is in compliance with the terms of this License and any associated agreement. Where applicable, SICAP may also use non-intrusive, automated industry-standard software license management tools to monitor and manage optimization of the Software and compliance with such obligations. 
      1. The license granted is restricted to the Licensee set out in the applicable Order Form(s).
      1. SICAP will not make custom modifications for Licensee except as may be agreed by the parties in writing.
      1. Licensee accepts and acknowledges that the Software may contain non-GPL source code.
      1. Delivery date will be upon acceptance of this Agreement or otherwise as agreed between the parties at which time Licensee will be permitted at its own expense to download and install the Software and Documentation from an SICAP designated web site or SICAP will e-mail License Keys to an email address designated by Licensee.
    1. Services

SICAP may, from time to time as agreed by the Parties , perform certain services for Licensee such as but not limited to support, maintenance, training and consulting (collectively,  “Services”). SICAP will provide Services in accordance with the terms and conditions set out in Section 10, 12 and any applicable Statement of Work (“SOW”). SICAP may engage third parties to assist with the provision of the Services. If SICAP engages such third parties, SICAP’s liability for such third parties shall be limited to the selection, instruction, and supervision of the contracted third parties.

  1. CONFIDENTIALITY

Each Party will: (a) use no less than a reasonable standard of care to protect the Confidential Information (“CI”) of the other party; (b) not disclose CI of the other Party to other parties without written consent of the Party owning the CI except for employees, agents, and subcontractors on a need-to-know basis, provided that each Party shall be responsible for any unauthorized disclosure of CI by such employees, agents, and subcontractors; and (c) not reproduce CI of the other Party without the other party’s advance written consent.  Subject to the License granted in this Agreement, either party may at any time on written request require the other party to immediately return any of the other party’s CI in the other party’s possession or control.  However, either party may disclose CI of the other party in accordance with a judicial, government or agency order, if reasonable prior notice is given to the party that owns the CI and the party ordered to disclose the CI complies with any applicable protective order or equivalent that applies to the disclosure.  Each party acknowledges that monetary damages, including but not limited to, the forfeiture of any License fees under this Agreement between the Parties may not be a sufficient remedy for a breach of these obligations and that the other party will be entitled to, and may seek, injunctive or other equitable relief as it may deem proper or necessary to ensure compliance with this section.

  1. LICENSE FEES AND PAYMENT

The Software licensed under this Agreement will be identified on the Order Form(s) created in connection with this Agreement. All Orders are binding on acceptance by SICAP.  Licensee agrees to pay to SICAP the fees specified in any accepted Order. Software or Services requested by Licensee for which no price was expressly agreed shall be invoiced by SICAP and paid for by Licensee on a services-provided and cost-incurred basis in accordance with SICAP’s then-current standard rates. Unless otherwise noted in the Order, Licensee agrees to pay SICAP within 30 days of delivery of the Software. For payments not received within 30 days from their due date SICAP reserves the right to charge interest payable at the lesser of 18% per annum or the most allowed by law. All license rights granted in this Agreement are conditional upon Licensee making timely and complete payment to SICAP of all license fees and other amounts due to SICAP hereunder and Licensee making payment of all applicable taxes.  Licensee shall make timely and complete payment to SICAP: (a) of all license fees and other amounts due to SICAP hereunder; and (b) of all country, federal, provincial, state, municipal, and other government excise, import, customs, sales, use, consumption, goods and services, property, value-added, internet, online, e-commerce, and other duties, levies and taxes of every kind arising out of this Agreement, whether imposed on the Software or otherwise and regardless of whether any or all of same exist as at the date of execution of this Agreement by SICAP and Licensee, or are imposed thereafter, except any taxes that may be imposed on SICAP’s income.  If SICAP is obligated to pay any taxes, fees, or levies on behalf of Licensee, Licensee shall reimburse SICAP in full for same promptly following receipt of SICAP’s invoice for same and/or SICAP shall be entitled to gross-up fees payable to account for such amounts.  SICAP shall be entitled to invoice and receive immediate payment of additional fees arising based on Licensee achieving additional users or subscribers under tiered pricing or otherwise in excess of the paid License.

  1. WARRANTY AND ACCEPTANCE
    1. SICAP warrants that upon delivery of the Software to Licensee, the Software will not contain any computer viruses or other programs that may affect the normal use of the Software in accordance with the Documentation and that for a period of 60 days from the date of delivery the Software will conform in all material respects to the Specifications. 
    1. Unless waived by Licensee in writing or by conduct, Licensee shall have 30 days (the “Acceptance Period”) from the initial delivery date of the Software to confirm Software is in accordance with the Specifications. Unless Licensee provides notice in writing within the Acceptance Period to SICAP rejecting the Software (which rejection shall only be valid to the extent the Software fails to fulfill the warranty set out above in this Section 5), Software shall be deemed to be accepted by Licensee on the thirty-first day after initial delivery.  There shall be no additional Acceptance Period for subsequent delivery of the same Software or updates or upgrades thereof.
    1. SICAP’s entire liability, and Licensee’s sole remedy against SICAP for breach of this warranty shall be limited to requiring SICAP, at SICAP’s option and sole discretion, to: (1) correct the error giving rise to such breach; or (2) assist Licensee to find a work around solution; or (3) replace the defective Software.  Provided that this warranty shall not apply to any breach and/or error arising from: (a) a change to the Software made by a party other than SICAP; (b) accident, neglect, or misuse by a party other than SICAP; (c) Any user or Licensee’s failure to provide correct installation or operating environment or comply with the Documentation; (d) software, hardware, firmware, data, processes, and/or technology not licensed or specified or provided by SICAP; (e) any IT infrastructure, system or telecommunications medium used by Licensee not supplied by SICAP.
  1. DISCLAIMER OF OTHER WARRANTIES

EXCEPT FOR THE EXPRESS LIMITED WARRANTY IN SECTION 5 ABOVE, ALL SOFTWARE AND SERVICES PROVIDED TO LICENSEE UNDER THIS AGREEMENT ARE PROVIDED BY SICAP ON AN “AS IS” BASIS WITH NO OTHER EXPRESS OR IMPLIED WARRANTY.  SICAP DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND APPLYING IN ANY WAY TO THE SOFTWARE OR SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE CONDITION, QUALITY OR FREEDOM FROM ERROR OF THE SOFTWARE OR SERVICES, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, DESCRIPTIONS, OPERATION, ADEQUACY, SUITABILITY, TITLE, INTENDED USE OR ENJOYMENT, OR NON INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, USAGE OF TRADE, COURSE OF DEALING, CUSTOM, OR OTHERWISE. LICENSEE ACKNOWLEDGES THAT SICAP IS NOT LIABLE, AMONG OTHER THINGS, IF THE SOFTWARE OR SERVICES DO NOT MEET THE REQUIREMENTS OF LICENSEE OR IF THE SOFTWARE OR SERVICES WILL NOT OPERATE FREE OF ERRORS, UNINTERRUPTED OR IN LICENSEE’S OPERATING ENVIRONMENT.  SICAP DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL IDENTIFY OR PROTECT AGAINST ALL KNOWN OR FUTURE VIRUSES, SECURITY OR SYSTEM RISKS.

  1. LIMITATION OF LIABILITY
    1. REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT (EVEN IF FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM), TORT (INCLUDING  NEGLIGENCE AND GROSS NEGLIGENCE), STRICT OR PRODUCT LIABILITY, OR OTHERWISE:  (A) SICAP’S TOTAL AGGREGATE LIABILITY TO LICENSEE OR TO ANY THIRD PARTY FOR DAMAGES (OF ANY SORT) FOR ANY BREACH OR SERIES OF BREACHES UNDER THIS AGREEMENT OR ARISING FROM OR RELATED TO THE SOFTWARE LICENSE, THE SOFTWARE, OR SERVICES, SHALL BE FOR DIRECT DAMAGES ONLY AND SHALL BE LIMITED TO AND IN NO EVENT EXCEED THE LOWER OF: (1) 100,000 CHF; OR (2) THE AGGREGATE LICENSE OR SERVICE FEES PAID BY LICENSEE TO SICAP UNDER THE APPLICABLE ORDER OR SOW; AND (B) IN NO EVENT SHALL SICAP BE LIABLE TO ANY PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, ECONOMIC OR PUNITIVE DAMAGES, OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFIT, REVENUE, TIME, DATA OR BUSINESS OPPORTUNITY, ARISING FROM OR RELATING TO THE SOFTWARE, LICENSE, OR SERVICES EVEN IF SICAP KNEW, SHOULD HAVE KNOWN OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    1. SICAP shall defend and indemnify Licensee and hold the Licensee harmless against any and all amounts payable by Licensee under any FINAL judgment, verdict, court order or settlement entered or agreed, and any and all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees, fines, penalties, and taxes), in any third party claim or action that alleges that the Software infringes a patent, copyright, or other proprietary right of such third party   (“Infringement Claim”), but only if  Licensee: (a) promptly notifies SICAP IN WRITING of any Infringement Claim; (b) grants SICAP the sole right to control the defence and disposition of any Infringement Claim; and (c)  provides SICAP with reasonable cooperation and assistance in the defense OR MITIGATION of any Infringement Claim.
    1. If the Software or any part thereof becomes, or SICAP reasonably determines that it is likely to become subject to an Infringement Claim, SICAP may at its option (a) procure for Licensee the right to continue to access and use the Software, (b) replace or modify the Software so that it becomes non-infringing without causing a material negative effect on the functionality of the Software; or (c) if neither of these options IS available, remove the infringing part of the Software and refund to Licensee all license fees paid by Licensee hereunder with respect to the infringing Software, adjust the support and maintenance fee payable by LICENSEE thereafter, in which case the license with respect to the infringing Software shall be terminated.  The obligations in this section are SICAP’s entire liability and the Licensee’s sole and exclusive remedy for any Infringement Claim.
    1. Licensee shall defend, indemnify, and hold harmless SICAP from any and all damages, claims, actions, suits, demands, liabilities, losses, costs, and expenses related to any claims by third parties or authorities relating to requirements instructions, concepts, information, data, or anything else provided or transferred by Licensee to SICAP.
  1. INDEPENDENT CONTRACTORS

No relationship of principal and agent shall exist or be implied between SICAP and Licensee. The Parties shall remain at all times independent contractors. Neither SICAP nor Licensee shall have any authority to bind or create any liability for the other to any third party in any manner. In no event will either party’s personnel or contractors be considered agents or employees of the other party and each party assumes all employment and other obligations for its own personnel.

  1. TERMINATION

Either party may terminate any licenses granted under this Agreement if the other breaches any material term and fails to remedy the breach within thirty (30) days from receiving written notice specifying the breach.  Upon issuing such notice of breach, the issuing party may suspend any license granted under this Agreement until the breach is cured. Either party may terminate this Agreement (i) if any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced against the other party or its property, and the same is not dismissed within thirty (30) days, or (ii) if the other party makes an assignment for the benefit of its creditors, becomes insolvent, commits an act of bankruptcy, ceases to do business, or seeks an arrangement or compromise with its creditors under any statute or otherwise.

Upon any termination of this Agreement: (a) all licenses granted by SICAP shall immediately terminate; and (b) Licensee shall immediately cease all use of the Software and return all copies of the Software and license keys to SICAP. All provisions of this Agreement, which by their nature are intended to survive termination, shall continue in full force and effect following any such termination, including Sections 3, 6, 7, 8 and 12 hereof.

  1. 10.SUPPORT AND MAINTENANCE

Notwithstanding anything else herein, the Services described in this Section 10 are subject to SICAP’s standard Documentation describing such Services. During the Warranty Period and for any annual support period for which Support Services Fees have been paid in full by Licensee, SICAP will maintain the Software so that it operates in substantial conformity with the descriptions and specifications for the Software set forth in the Documentation.  SICAP may provide to Licensee, when available, Updates and Releases to the Software, subject to applicable fees.  In the event that the Licensee requires a fix or feature that is present in a new Update or Release, Licensee agrees to install and upgrade to new Updates and Releases and acknowledges that SICAP will not be maintaining older Updates or Releases.   Support for non-current versions of the Software may result in additional charges at SICAP’s then published rates and terms unless provided for in the applicable Order.

Support and maintenance services and fees for the Software shall be set out in the applicable Order Form and shall be paid by Licensee annually in advance upon the Effective Date of the applicable Order Form. Only Licensees with paid-up maintenance fees will be provided support by SICAP as per the terms posted at [·]. SICAP reserves the right to increase the maintenance fees on an annual basis.

Licensees with paid-up maintenance fees will be notified by SICAP, via email to an address identified by Licensee, of new releases of software.  Licensees who do not maintain continuous yearly maintenance must pay in full any back maintenance fees to the last date for which fees were paid in order to gain access to support and maintenance services or any subsequent software release not already delivered.

Annual maintenance services shall automatically renew for a subsequent annual (twelve-month) period unless terminated by either party by delivering a written notice to the other no less than sixty (60) days before termination of then current term. SICAP shall notify Licensee no less than thirty (30) days before such notice date of any change in maintenance fees or services, including fee increases.

  1. 11.GENERAL
    1. Assignment. This Agreement or any rights, licenses or obligations hereunder, may not be assigned, pledged or transferred in any way by Licensee, in whole or in part, without SICAP’s prior written consent, which consent may not be unreasonably withheld.  Any purported assignment in violation of this section shall be void and of no effect.  Subject to this, this Agreement will benefit, bind and enure to the parties’ lawful successors and assigns.
    1. No Additional Services. Licensee agrees and acknowledges there are no other services provided under this Agreement by SICAP in relation to the Software, including, without limitation, software customization or repair of any errors, malfunctions or defects which may arise during the term of this Agreement, except where such services are determined by agreement in writing between the Parties.
    1. Force Majeure.  Except for payment obligations pursuant to this Agreement (including applicable taxes) or obligations relating to the protection of or restrictions applicable to protection of a party’s CI or intellectual property, neither party shall be liable to the other or in breach of this Agreement by reason of any failure or delay in performance of any obligations hereunder to the extent such failure or delay arises (and only for the duration that the affected Party is precluded from performing) as a result of acts of God, fire, disaster, explosion, vandalism, unlawful hacking,  storm, adverse weather conditions, strikes, labor disputes or disruptions, epidemics, wars, national emergencies, riots, civil disturbances, shortages of materials, actions or inactions of government authorities, terrorist acts, lockout, work stoppages or other labor difficulties, border delays, generalized failures or interruptions of the Internet, IT infrastructure,  utilities or telecommunications equipment or services, system failures or any other cause or event that is beyond the reasonable control of that party.
    1. Governing Law. Unless otherwise specified in the Order Form, this Agreement shall be governed by the laws of Switzerland excluding its conflicts and/or choice of law rules as well as the United Nations Convention on the International Sale of Goods and the venue for any disputes arising hereunder shall be Zug, Switzerland.
    1. Export and Other Laws.  Licensee shall comply with applicable laws, regulations and standards pertaining to the Software, including export laws, regulations, and/or directives, and comply with laws and regulations in Licensee’s jurisdiction and any other location related to the import, export, transfer, shipping, and/or use of the Software and any laws and regulations relating to personal and private information.
    1. Waiver, Amendment, Severability, Preprinted Terms. No waiver of any provision herein shall be binding on SICAP or Licensee unless set out in a written waiver signed by both parties.  This Agreement can only be amended by a written document signed by SICAP and Licensee stating such document is an amendment or an addendum hereto which may include any such statement or provision in a duly agreed SOW hereunder.  If any provision of this Agreement is found contrary to any applicable law or unenforceable by any court or body of competent jurisdiction, that provision shall be considered severed from this Agreement but all remaining provisions shall continue in full force.   Any terms and conditions on the front or back of any purchase order or like document that conflicts with the provisions of this Agreement, Order Form, quote, SOW or like document provided by SICAP or Licensee to the other in connection with this Agreement, shall be ineffective, void and of no force and effect to the extent of such conflict. 
    1. Use of Licensee Name. Licensee agrees SICAP may use and disclose Licensee’s name in a press release, publication, and/or marketing materials with the prior written consent of Licensee.
    1. Attribution Notices.  Within the Software, there are or may be ownership, attribution and/or branding notices including, but not limited to, notices attributing copyright and trademark ownership to SICAP (all such notices and instances collectively referred to as “Notices”).  Licensee shall maintain such Notices in their original form and shall not: i) remove, modify, obscure, re-size or re-locate Notices, or ii) cause any Notices to become not visible to any users of the Software, without the prior written consent of SICAP.
    1. Entire Agreement. This Agreement, together with each written amendment, and/or written addendum to this Agreement signed by SICAP and Licensee, and any SOW or Order Form(s) which reference this Agreement, sets forth the entire agreement between SICAP and Licensee regarding the subject matter hereof, and supersedes any prior oral or written representations, statements, agreements and understandings between the parties.  Neither party shall be bound by or liable for any alleged representation, warranty, promise, or inducement not expressly contained herein.
    1. Choice of Language. The Parties hereto confirm that it is their wish that this Agreement as well as other documents relating hereto including notices, have been and shall be   in the English language only.
  1. 12.TERMS AND CONDITIONS FOR SERVICES
    1. Services.  SICAP may provide to Licensee Services in accordance with the detailed terms set out, on a project by project basis, in the separately executed Statement(s) of Work (“SOW”), as may from time to time be issued hereunder. The SOWs shall be incorporated herein and form an integral part of this Agreement and be subject to the terms and conditions of this Agreement unless expressly stated otherwise in the SOW. Each SOW may be amended or modified by supplementary change orders agreed to by both parties hereto and attached to the related SOW, and the Services shall be deemed to include such change orders.

Services do not include any rights or License to Software, which rights are strictly and exclusively subject governed by the applicable License.

    1. No Restriction on Services to Others.  Licensee acknowledges that SICAP has extensive expertise and experience in the area and that SICAP intends to utilize such expertise, experience, products and tools in providing consulting, training and other services to other Licensees.  Subject to SICAP’s compliance with the confidentiality provisions stated herein, nothing in this Agreement shall restrict or limit SICAP from performing such consulting, training or other services to any other entity in any industry.  Licensee agrees that, except as otherwise agreed in this Agreement, SICAP and its employees may provide consulting, training and other services similar in nature to the Services for any third parties both during and after the term of this Agreement.
    1. Fees and Expenses (Services).  For Services defined in the applicable SOW, Licensee agrees to pay SICAP the fees set forth in the applicable SOW plus any applicable sales or use taxes or other charges in accordance with the SOW and section 4 above.  Licensee shall reimburse SICAP for all reasonable travel and other expenses incurred in connection with providing the Services, in accordance with SICAP’s corporate travel and expense policy.

For pay-as-you-go time and materials engagements, SICAP shall invoice Licensee on a monthly or bi-weekly basis for fees for Services and expenses as set out in the applicable SOW.  Time and expense reports will be provided as requested by Licensee in an agreed format.  For pre-paid credits and all other engagements, SICAP shall invoice the Licensee in advance for Services, and shall invoice Licensee on a monthly basis for expenses in an agreed format.  Invoices are due and payable on delivery, and shall be deemed overdue if unpaid 45 days.  Overdue amounts shall accrue interest at the rate of 2.0% per month and SICAP may, at its option suspend any on-going work until any overdue account is made current or, at SICAP’s reasonable discretion, full prepayment has been made or other adequate assurance for Licensee’s payment obligation has been provided by Licensee or a reasonably acceptable third party. SICAP will not be responsible for any damages resulting from a suspension of Services pursuant to this Section. If Licensee’s procedures require invoices be submitted against a purchase order, Licensee is responsible for issuing purchase order prior to the commencement of Services. If Licensee pre-pays for any consulting, training or other services, such pre-payment credits shall expire and are non-refundable if   not used within six (6) months or the due date or as specified in the applicable SOW.

    1. Intellectual Property Rights. As used herein, the term “IP Rights” shall mean recognized protectable intellectual property such as patents and applications, copyrights, trade-marks, trade secrets, mask works, industrial design rights, rights of priority, know how, design flows, methodologies and any and all other legal rights protecting intangible proprietary information. Without limiting the foregoing, IP Rights shall include all software, data, Documentation, and materials.

In providing Services, SICAP may use IP Rights previously or independently developed or acquired by SICAP.  Also, SICAP may use some of Licensee’s technology and IP Rights to perform the Services. Except as explicitly provided herein, neither this Agreement, nor supply of Services hereunder shall give either SICAP or Licensee any ownership interest in or rights to the IP Rights of the other party.

As between the parties: (1) Licensee shall retain all ownership rights to any and all innovations, inventions or developments (“Innovations”), whether or not jointly conceived, and IP Rights arising therefrom, that derive directly from the Licensee’s Technology, and/or the Licensee IP Rights, provided by Licensee to SICAP under this Agreement; (2) SICAP shall retain all ownership rights to all other Innovations, whether or not jointly conceived, and all IP Rights arising therefrom, including, but not limited to, those Innovations that (i) derive from SICAP’s proprietary information, materials and/or IP Rights, and/or (ii) relate to the business of SICAP.  Licensee is granted a royalty-free, non-exclusive, non-transferable license to use SICAP-owned Innovations made during performance of the Services only to the extent necessary to permit Licensee to use the Services.  The foregoing does not apply to any Licenses to the Software, which are separately and exclusively governed by the Software License provided for in this Agreement.

To perfect or protect ownership of either party’s IP Rights, the other party assigns to that party all rights they may have in the Innovations to be owned by the other party as provided herein, and agrees to assist and cooperate with that party in all reasonable respects, including to execute all documents and, subject to reasonable availability, give testimony and take or permit the other party to take all further acts reasonably necessary to acquire, transfer, maintain, and enforce such party’s IP Rights.

    1. Licensee’s Obligations. Licensee acknowledges that SICAP’s ability to perform the Services in accordance with this Agreement is dependent upon the completion of certain activities on the part of Licensee that are necessary in order to enable SICAP to do so. SICAP will not be liable for any failure to perform the Services in accordance with this Agreement to the extent that such failure is caused by a failure of Licensee to complete any activities upon which SICAP’s performance is dependent. Licensee is responsible for obtaining all governmental approvals, permissions, or licenses required to implement and operate Solution. Licensee shall be liable for all damages incurred by SICAP resulting from the non-availability of such permissions and licenses and the same applies to private approvals, permissions or licenses. Licensee acknowledges that the efficient and safe operation of the Solution requires:
      1. 12.5.1.an environment 
        1. 12.5.1.1.where the ambient temperature permanently lies between ten (10) degrees Celsius and twenty (20) degrees Celsius;
        2. 12.5.1.2.which is non-condensing, with a relative humidity between twenty (20) and sixty (60) percent;
        3. 12.5.1.3.with a low level of dust and no smoke particles present;
        4. 12.5.1.4.absent of any significant vibration
      2. 12.5.2.the power supply specified [in the Agreement], in particular an uninterruptible power supply;
      3. 12.5.3.that Solution is not used in proximity to any external source of significant electro-magnetic radiation as specified in the Agreement or any pertinent statutory or industrial standards;
      4. 12.5.4.the safety earth be established by a permanent link.
    1. Services Termination. If SICAP terminates this Agreement or any applicable SOW for failure of Licensee to pay any amounts owing to thereunder, the rights of Licensee to use the applicable Deliverables including any express or implied licenses which may have been granted herein shall immediately terminate.
    1. No Refund. All Service fees are non-refundable and non-cancellable and any unused services days or credits or other pre-paid Services fees will expire and be forfeited by Licensee automatically without notice on expiry of six months from the date of purchase unless otherwise specified in the applicable SOW.