License and Support Agreement

 

This Day CRX license and support agreement (“Agreement”), is entered into and executed as of the Effective Date (as defined below) between Day Software AG (“Day”), Barfuesserplatz 6, CH-4051 Basel, Switzerland, and you as the end using Customer of the Software “Customer”, identified as on the Order Form.

By downloading, installing or using the Software Customer agrees to the following terms and conditions:

"Application" means a computer program designed for a specific task or use using the Software to access and store any content. Examples of an Application are a corporate website, a blog, a wiki, an e-learning platform, online shopping, games, online calendar, maps, auction sites, etc.

"Instance" means one in-memory copy of the Software instantiated and running within a Java virtual machine process on one server machine.)

"Production Environment" means each server or server unit that is used, in whole or parts, for production/live purposes, i.e. is not exclusively used for development or testing of the Software.

"Named User" means the named individual as identified in the Order Form.

"Documentation" means the most recent documentation relating to the Software at http://docs.day.com (or such other location as may be designated by Day from time to time).

"Effective Date" of this Agreement shall be the date of Customer’s download of the Software.

"Product Key" is a series of letters and digits that uniquely identify a Software installation and authorize Customer to use it during the Subscription Period.

"Order Form" means the online form on www.day.com as filled in by Customer during the ordering process.

"Software" means the object code version of the Day software marketed and licensed under the name CRX Content Repository Extreme together with all Updates thereto.

"Subscription Fee" means the price in accordance with Customer’s order of the Software at the Effective Date or – if renewed – the then current pricing provided at http://www.day.com

"Subscription Period" means the period commencing upon payment of the Subscription Fee and ending after one (1) year. The Subscription Period may be extended and/or renewed at any time by paying the then-applicable Subscription Fee for an additional year.

Upon execution of this Agreement, Customer shall receive a Product Key that must be entered during the Software installation to authorize Customer to use the Software. Day shall provide Product Key to Customer via e-mail at the address provided by Customer via Order Form.  The Software will be fully operational, and will be updated from time to time.  If Customer does not renew the Subscription Period prior to the expiration of the then current Subscription Period, the granted license rights will expire.  In order to activate the Subscription Period, Customer must pay the Subscription Fee to Day or its Authorized Resellers.

3.1 License Grant

Subject to all of the terms and conditions of this Agreement, Day grants to Customer, during the Subscription Period, a non-exclusive, non-sublicensable, non-transferable and royalty-free license to install and use the Software as set forth in this agreement and according to their order.

3.2 Restrictions on Use

(i) Customer agrees to use the Software only in the ordinary course of its business. Customer shall not rent, sell, license, distribute or otherwise transfer the Software or any rights therein, or use it for the benefit of any third party.

(ii) Customer shall not attempt to reverse engineer, disassemble or decompile any part of the Software, or otherwise attempt to derive any Software source code.

(iii) Customer shall not attempt to modify, enhance, improve or adapt the Software, or create any derivative works of the underlying computer code of the Software, or any part thereof.

(iv) Customer shall not remove any copyright, trade secret or other proprietary legends or notices that appear on or in the Software.  Customer will cooperate with Day, upon Day’s reasonable request, in connection with Day’s efforts to pro- tect its copyright and other legal rights in the Software.

3.3 Customer’s Use of the Software is limited as follows

General: Customer’s maximum use of the Software is limited to the scope as ordered by Customer via Order Form.

In accordance with Customer’s order of the Software and, where applicable, subject to the full payment of the Subscription Fee, the following limitations apply:

(i) Day CRX Developer Edition: Named User license for evaluation, development, testing and demonstration purposes. The use of the Software in a Productive Environment is not permitted.

(ii) Day CRX One Edition: Deployment on a maximum of two (2) Instances. Customer is entitled to run a maximum of one (1) Application on top of the Software.

Customer agrees to pay Day the Subscription Fees as per the Order Form.

Upon execution of this Agreement or any renewal of the Subscription Period, Day will invoice Customer for the Subscription Fee promptly following delivery of the Software. 

Customer shall make all payments due to Day in full within 30 days from the date of each invoice. Any amounts payable to Day by Customer that remain unpaid after the due date are subject to a late charge of 1.5% (or the maximum rate allowed by applicable law) of the invoice amount per month from the due date until such amount is paid.

The Software is copyrighted. Title to the Software and all other rights remains with Day or its licensor(s) at all times. Source code underlying the Software object code ("Source Code") is Day’s trade secret that Customer may not access. Customer may not reverse assemble, reverse engineer, or decompile the Software or otherwise attempt to access the Source Code. Customer agrees to abide by the copyright law and all other applicable laws.

The Subscription Fee entitles for the Software releases current as of the date of download of the Software.

During the Subscription Period Day will provide Customer with access to all updates, upgrades, bug fixes, patches, error corrections, and minor and major releases to the Software that are made generally available by Day to its end-users. Customer shall be solely responsible for downloading and/or installing any of the services or updates provided by Day.

Day, may in its sole discretion, modify the Software and deliver Software updates to Customer which may add new and/or eliminate existing features, functions, operating environment and/or hardware platforms to the Software.

During the Subscription Period Customer may report any incidents in the Software or enhancement requests through Day’s support system.

Day may, without Customer’s approval and without incurring any liability to Customer, modify the Software or discontinue its manufacture, sale or generally available support.

The license granted in Section 2.1 hereof, and Customer’s right to use the Software, shall expire at the end of the Subscription Period, as applicable.  Day may terminate this Agreement immediately, without notice, in the event of a breach by Customer of any of the terms hereof.  The disclaimers of warranties and damages and limitations on liability shall survive termination.

Customer acknowledges and agrees that the Software may contain verification and reporting functionality that allows the remote reporting of Customer’s usage of the Software for the purpose of verifying Customer’s compliance with the terms and conditions of this Agreement (“Remote Verification”).  Customer agrees to cooperate and assist with Day’s reasonable requests regarding the facilitation of such Remote Verification, and Customer agrees that it shall not (or allow any of its employees or any third party) directly or indirectly attempt to disable or remove such Remote Verification functionality.  In addition, Day may, at its expense, perform an audit of Customer’s use of the Software to verify Customer’s compliance with the terms and conditions of this Agreement.  If Remote Verification or an audit reveals that Customer is using the Software in violation of the Agreement and Customer’s use of the Software granted herein, Customer agrees to take all reasonable measures requested by Day to remedy such unauthorized use and to pay Day’s reasonable expenses and retroactive license fees associated with Day’s audit and Customer’s unauthorized use.  If Customer fails to take such measures within two (2) calendar days, Day may immediately terminate the license granted pursuant to the Agreement.  In connection with such termination, all amounts owed to Day hereunder shall be immediately due and payable.

The Software may also include technological measures that are designed to enable Day to disable the Software upon the expiration of the Subscription Period, or if Customer has breached the terms of this Agreement.

Day warrants that, for a period of thirty (30) days from the date of delivery of the Software to Customer: (i) the media, if any, on which the Software is distributed will be free from defects; and (ii) the Software will perform substantially in accordance with the Documentation accompanying the Software.  Customer’s sole remedy in the event of a breach of this warranty will be that Day will, at its option, replace any defective media returned to Day within the warranty period or refund to Customer the Subscription Fees.

DAY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.  THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS.  CUSTOMER MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.

SOME STATES AND COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO LIMITATION OR EXCLUSION SET FORTH BELOW MAY NOT APPLY TO CUSTOMER IN THIS RESPECT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL DAY OR ITS LICENSORS BE LIABLE TO CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF DAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL DAY'S OR ITS LICENSORS' LIABILITY EXCEED THE SUBSCRIPTION FEE FOR THE SOFTWARE.

RESTRICTED RIGHTS LEGEND. All Day products and documentation are commercial in nature.  The Software and Documentation are “Commercial Items,” as that term is defined in 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1), and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable.  Consistent with 48 C.F.R. section 12.212, 48 C.F.R. section 252.227-7015, 48 C.F.R. section 227.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, Day's Software and Documentation are licensed to United States Government end users with only those rights as granted to all other end users or customers, according to the terms and conditions contained in this Agreement.

Customer agrees that the Software, support or service to the Software, technical data, and Documentation delivered under the Agreement are subject to U.S. export laws and applicable laws of other countries. Customer agrees to strictly comply with all such laws and assumes responsibility to obtain licenses to export, re-export, or import as may be required. Unless authorized by the applicable export laws, Customer agrees that (i) no Software, support or service to the Software, technical data, and Documentation, nor any direct product therefrom, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to Afghanistan, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Syria, and the Sudan nor any other restricted country and its nationals as identified in the U.S. export regulations, including but not limited to the Export Administration Regulations (15 C.F.R. Parts 730-774); (ii) that Customer is not identified on any U.S. Government export exclusion lists; and (iii) the Software, support or services to the Software, technical data, and Documentation will not be used for nuclear, missile, chemical biological weaponry, or other weapons of mass destruction. These obligations shall survive expiration or termination of this Agreement.

The Agreement shall be governed by and construed and interpreted in accordance with the laws of Switzerland, disregarding any conflict-of-laws rules (including, without limitation, the United Nations Convention on Contracts for the International Sales of Goods or the Hague Convention on Purchase Law) which may direct the application of the laws of another jurisdiction.  The parties submit to the jurisdiction of the courts of the Canton Basel Stadt, Switzerland, and agree that said courts have the sole and exclusive jurisdiction over any and all disputes and causes of action involving such party that arise out of or relate to the Agreement.

Should Customer have any questions concerning this Agreement, or if Customer desires to contact Day for any reason, Customer may visit the Day’s on-line technical support center located at www.day.com, and follow instructions or possibilities given there.

Each of the provisions of this Agreement shall be construed as independent of every other such provision, so that if any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other provisions of this Agreement shall not be affected.

This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior existing understandings between the parties relating thereto.  In the event of any conflict between the terms of this Agreement and any later agreement, the terms of the latter shall control.