Omtco License and Service Agreement (OLSA)

Omtco License and Service Agreement (OLSA)

November 2017

 

Document reference 201711OLSA

Released 01 November 2017

Author: OMT-CO Operations Management Technology Consulting GmbH, Wesendonkstr. 7, 81925 Muenchen (Germany), company house registration: HRB Muenchen 192056

Contact us to request changes and report errors: info@omtco.eu

 

This document is Published by OMT-CO Operations Management Technology Consulting GmbH (Omtco), a company registered in Munich, Germany. Copyright © 2013–2017 Omtco and/or its affiliates. All rights reserved.

This document is current as of its date of publication and may be changed by Omtco at any time. Not all offerings are available in every country in which Omtco operates. THE INFORMATION IN THIS DOCUMENT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING NO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT. Refer also to the disclaimer Published at http://omtco.eu/disclaimer.

The information contained herein is subject to change without notice and is not warranted to be error-free. If you find any errors, please report them to us in writing to info@omtco.eu.

Thank you.


 

Content

1.    Universal License terms

1.1.     Applicability

1.2.     Glossaries

1.3.     General

1.4.     Agreement structure

1.5.     Payments due

1.6.     Program transfer

1.7.     Warranty and exclusions

1.8.     Licensee data and databases

1.9.     Limitation of liability

1.10.   Compliance verification

1.11.   Legal issues

2.    Program license terms

2.1.     Applicability

2.2.     License grant

2.3.     Software assurance benefits

2.4.     Program-specific terms

2.5.     Termination

2.6.     Commercial services

2.7.     Other restrictions

2.8.     Training

2.9.     Program support

3.    Price List

4.    Notices

 

 

 

1.  Universal License terms

1.1.               Applicability

Universal License terms apply to all Programs licensed through the Agreement.

Software and related Documentation are provided under a License agreement containing restrictions on use and disclosure and are protected by intellectual property laws. Except as expressly permitted in your License agreement or allowed by law, you may not use, copy, reproduce, translate, broadcast, modify, license, transmit, distribute, exhibit, perform, Publish, make available, or display any part, in any form, or by any means. Reverse engineering, disassembly, or decompilation of Program or software, unless required by law for interoperability, is prohibited.

By downloading, installing, copying, accessing, clicking on an accept button, running or otherwise using a Program, the Licensee agrees to the terms of the Agreement. If you are accepting these terms on behalf of the Licensee, you represent and warrant that you have full authority to bind the Licensee to these terms. If you do not have authority to do so or do not agree to these terms, do not download, install, copy, access, click on an accept button, run, load in memory or use a Program, nor let these be done by an employee, contractor or consultant acting on your behalf or for your benefit; and promptly return the unused media and Documentation to the party from whom it was obtained and request a refund of the amount paid. If a Program was downloaded, destroy all copies of the Program.

1.2.               Glossaries

1.2.1.   Applicability of the glossaries

Capitalized words throughout this document refer to the definitions from the Glossary of contractual words and the Glossary of technical words.

1.2.2.   Glossary of contractual words

Agreement is the Omtco License and Service Agreement (OLSA) and the Price List and any amendments or modifications made through the Executable Quote.

Authorized Use means the specified level at which the Licensee is authorized to install and run a Program. This level may be measured in several ways, including by number of users, devices, processor cores, Appliances,        Subnets 0/24 IPv4,   Vcenters, database Instances,       OSEs, or any other level of use specified in the Price List or in the OLSA, or in any Program-specific or general Documentation or Publication.

Documentation or Publication means any document available with a Program, or communicated or made available by any means to the Licensee including via letter or email, or Published on Omtco’s website, http://omtco.eu. The OLSA and the Price List are Published on Omtco’s website, http://omtco.eu/ and http://omtco.eu/terms/.

Current Price is the price as Published in the latest Price List.

Effective Use means the specified level at which the Licensee installs and/or runs and/or uses a Program. This may be measured in several ways, including by number of Users, Devices, Processor Cores, Appliances,           Subnets 0/24 IPv4,   Vcenters        , database instances,       OSEs, or any other level of use specified in the Price List or in the OLSA, or in any Program-specific or general Documentation or Publication.

Evaluation Period means the length of time during which a Program’s functionality and capacity can be assessed by the Licensee. Data and outputs produced by a Program during an Evaluation Period may not be used for any other purpose than the evaluation of the Program. Data and outputs produced by a Program during an Evaluation Period must be destroyed at the end of the Evaluation Period.

Executable Quote is the document which can be provided with the purchase quote or Purchase Order.

License means the permit which grants the right to download, install, load in memory, access and use a Program, wholly or partially, within its Authorized Use.

Licensee means the organization being granted a License of a Program, including any personnel acting on behalf of, or for the benefit of, the Licensee, such as employees, contractors and consultants.

Omtco License and Service Agreement (OLSA) or OLSA Program Terms or OLSA Terms means this document and related or referenced Documentation or Publications referencing the terms and conditions governing the License of a Program.

Omtco means the company Omtco or any of its subsidiaries, such as OMT-CO Operations Management Technology Consulting Gmbh, registered in Munich, Germany.

Party or Parties means either Omtco or the Licensee, or both.

Price List means the Publication by Omtco listing the prices of Programs.

Publication – see Documentation.

Project means all Licensed Devices, Licensed Servers, Licensed Users and deployments and usage of Programs in the context of one service of the Licensee. All applications used for the same service belong to the same Project. All Production and Non-Production Environments used for the same services belong to the same Project.

Publish means to communicate or make available any document to the Licensee by any means, including posting the document on Omtco’s website, http://omtco.eu/ and http://omtco.eu/terms/.

Program means the following, including the original and all whole or partial copies: 1) machine-readable instructions and data; 2) components, files, and modules; 3) audio-visual content (such as images, text, recordings, or pictures), and 4) related licensed materials (such as keys, Documentation, Publication, intellectual property). Programs, for instance, include – but are not limited to – software, libraries, procedures, reports, intellectual property and related Documentation and Publications by Omtco. The purpose of a Program is documented in Omtco Documentation or Publications.

Purchase Order means the act of accepting an Executable Quote.

Restriction means any restriction associated with the use of a Program as mentioned in the Agreement or in any Documentation or Publications.

Software Assurance or SA means the service allowing the Licensee to access supplementary benefits of Authorized Use, known as Software Assurance Benefits.

Software Assurance Benefits are the benefits which the Licensee receives for Authorized Use solely under Software Assurance – Version Upgrade Rights and Technical Support.

Software Assurance Reinstatement means the act of placing an Authorized Use (which has never been, or is no longer, under Software Assurance) under Software Assurance.

Reinstatement – see Software Assurance Reinstatement.

Technical Support is a Software Assurance benefit. With Technical Support, the Licensee may request assistance from Omtco for routine, short-duration installation and code-related usage questions.

Third-Party means an organization or person distinct from Omtco and the Licensee, who is not a Party signing the Agreement, but who may be affected by it or may be affecting it.

Version Upgrade Rights is a Software Assurance benefit allowing the Licensee to deploy corrections or bypasses of existing versions, and upgrade or update the version of a Program.

Warranty Period lasts for 12 months, starting on the date the Licensee is granted the License.

1.2.1.   Glossary of technical words

Appliance means one or several Programs combined with an operating system to run optimally on industry-standard hardware or in a virtual environment. An appliance may be hardware or software.

Client OSE (Operating System Environment) means an OSE running a client operating system.

Client or Client device or Client environment means a device which is not a Server.

Concurrent Users are users accessing a Program at the same time.

Connector is defined as each connector connecting a Program with a Third-Party Program. A unique connector is required for each distinct Third-Party Program that the Program is required to interface with.

Container is a feature to segregate an environment, such as an OSE and applications, from other environments or OSEs. Various technologies may be used, including Docker, Oracle Sun (Solaris zones), Microsoft Windows Server (Windows Server containers), Microsoft HyperV (HyperV containers). Each container is considered to be a single virtual OSE.

External Users are users who are not Internal Users.

Hardware Thread means either a Physical Core or a hyper-thread in a Physical Processor.

Instance means an image of the Program that is created by executing the Program’s setup or install procedure, or by duplicating an existing Instance.

Internal Users are either Licensees or their affiliates’ employees, or their affiliates’ on-site contractors or on-site agents. Contractors or agents granted access to Licensees’ systems are considered on-site contractors or on-site agents, and thus are internal users.

Licensed Device means a single physical hardware system to which a License is assigned. A hardware partition or blade is considered a separate device.

Licensed Server means a single server, dedicated to the Licensee’s use, to which a License is assigned. A hardware partition or blade is considered a separate server. Licensed Servers may be hosted by a Third-Party, or the Program provided as a service.

Licensed User means a single person to whom a License is assigned.

Managing an OSE (Operating System Environment) means to solicit or receive data about, configure, or give instructions to the hardware or software that is directly or indirectly associated with the managed OSE, discover the presence of a device or OSE, discover any characteristic of the hardware or OSE, such as IP addresses, ports, services, any hardware characteristics, any OSE characteristics, installed software, or any OSE configuration.

Non-Production Environment means any OSE which is not a Production Environment.

Operating System Environment (OSE) means all or part of an operating system instance, or all or part of a virtual, or otherwise emulated, operating system instance which enables separate machine identities (primary computer name or similar unique identifier) or separate administrative rights, and instances of applications, if any, configured to run on the operating system instance or parts identified above. A physical hardware system can have one Physical OSE and one or more Virtual OSEs.

Physical Core means a core in a Physical Processor.

Physical Server means each physical server on which the Program is installed.

Physical OSE (Operating System Environment) means an OSE that is configured to run directly on a physical hardware system. The operating system instance used to run hardware virtualization software or to provide hardware virtualization services is considered part of the Physical OSE.

Physical Processor means a processor in a physical hardware system.

Production Environment means any Physical OSE or Virtual OSE running a production workload or accessing production data, or any Physical OSE hosting one or more Virtual OSEs running production workloads or accessing production data.

Server or Server device or Server environment means a physical hardware system capable of running server software. Any device with more than two concurrent users is considered a Server. Any device with any virtual OSE is considered a Server. Any device running a server operating system is considered a Server.

Single IP means a unique numerical label assigned to each device connected to a computer network that uses the Internet Protocol for communication.

Running Instance means an instance of a Program that is loaded into memory and for which one or more instructions have been executed. A Licensee runs an instance of Program by loading it into memory and executing one or more of its instructions. Once running, an instance is considered running, whether or not its instructions continue to execute, until it is removed from memory.

Subnet 0/24 IPv4 means a logical subdivision of an IP network, under Internet Protocol Version 4 (IPv4), where the routing prefix of said subdivision is 24 bits long, with a maximum of 256 IP addresses.

Subnet 0/16 IPv4 means a logical subdivision of an IP network, under Internet Protocol Version 4 (IPv4), where the routing prefix of said subdivision is 16 bits long, with a maximum of 65,536 IP addresses.

Transposition Single Row means each single row in the transposition tables used, i.e. each single value used as a possible entry to be transposed by means of the transposition table.

V-Center or Vcenter means the centralized management tool for the vSphere suite produced by VMware.

Vendor Operating System Environment (OSE) means all or part of an operating system instance, or all or part of a virtual, or otherwise emulated, operating system instance which enables separate machine identities (primary computer name or similar unique identifier) or separate administrative rights, and instances of applications, if any, configured to run on the operating system instance or parts identified above. A physical hardware system can have one physical OSE and one or more Virtual OSEs.

Virtual Core means the unit of processing power in a virtual hardware system. A Virtual Core is the virtual representation of one or more hardware threads.

Virtual OSE (Operating System Environment) means an OSE that is configured to run on a virtual hardware system.

1.3.               General

Omtco is an independent contractor, not the Licensee’s agent, joint venturer, partner, nor fiduciary, and does not undertake responsibility for any of the Licensee’s regulatory obligations, nor assume any responsibility for the Licensee’s business or operations. Each Party determines the assignment of its personnel and contractors, their direction, control, and compensation.

For Programs that Omtco provides to the Licensee in tangible form, Omtco fulfils its shipping and delivery obligations upon the delivery of such Programs to the Omtco-designated carrier, unless otherwise agreed to in writing by the Parties.

The Licensee authorizes Omtco and its subsidiaries (and their successors, assigns, affiliates and contractors) to store and use the Licensee’s business contact information wherever they do business, in connection with Omtco Programs and services, or in furtherance of Omtco’s business relationship with the Licensee.

No right or cause of action for any Third-Party is created by the Agreement, nor is Omtco responsible for any Third-Party claims against the Licensee, or any transaction under it, except as permitted in the liability subsection (Items for which Omtco may be liable) for bodily injury (including death) or damage to real or tangible personal property for which Omtco is legally liable to that Third-Party.

Parties will not disclose confidential information without a separate, signed confidentiality agreement. If confidential information is exchanged, the confidentiality agreement is incorporated into, and subject to, the Agreement.

The Licensee is responsible for obtaining all necessary permissions to use, provide, store and process content in any services, maintenance, or support, and grants Omtco permission to do the same. Some of the Licensee’s content may be subject to governmental regulation or may require security measures beyond those specified by Omtco for an offering. The Licensee will not input or provide such content unless Omtco has first agreed in writing to implement additional required security measures.

This Program is developed for general use in various information management applications. It is not developed or intended for use in any inherently dangerous applications, including applications that may create a risk of personal injury. If you use this Program in dangerous applications, then you shall be responsible to take all appropriate fail-safe, backup, redundancy and other measures to ensure its safe use. Omtco and its affiliates disclaim any liability for any damages caused by use of this Program in dangerous applications.

Where approval, acceptance, consent, access, cooperation or similar action by either Party is required, such action will not be unreasonably delayed or withheld.

1.4.               Agreement structure

1.4.1.   Complete Agreement

The complete Agreement applicable to the License is comprised of the following three documents: the Executable Quote, the Price List and the OLSA. The Executable Quote supersedes the Price List and the OLSA. The Price List supersedes the OLSA. These documents replace any prior oral or written communication between the Licensee and Omtco concerning the Licensee’s License of the Program.

The Executable Quote, the Price List and the OLSA may be provided to the Licensee at the time of purchase, alongside the purchase quote or Purchase Order, and apply to the purchase referred to in the Executable Quote.

If no Executable Quote has been provided to the Licensee at the time of purchase, then the Price List and the OLSA as Published by Omtco applies to the purchase. If no OLSA has been provided to the Licensee at the time of purchase, then the OLSA as Published by Omtco applies to the purchase. If no Price List has been provided to the Licensee at the time of purchase, then the Price List as Published by Omtco applies to the purchase.

If the Effective Use is not covered at any time by a purchase by the Licensee of Authorized Use of the Program, then the Price List as Published by Omtco applies to the part of the Effective Use not covered by the Authorized Use, and the OLSA as Published by Omtco applies to the complete Effective Use.

1.4.2.   Changes to the OLSA

Omtco reserves the right to modify the OLSA. Changes to the OLSA are Published by Omtco, or made available by any other means to the Licensee. Changes to the OLSA apply from their Publication date to subsequent Executable Quotes and Purchase Orders, Program deployments, and any whole or partial update or upgrade of a Program and its code, libraries, components, procedures or Documentation.

The Licensee accepts changes in the OLSA by any of the following actions: 1) Accepting an Executable Quote or placing a Purchase Order, for instance for Authorized Use, after the Publication date; 2) Installing a Program version released after the Publication date; 3) updating or upgrading a Program, wholly or partially, or any of its code, libraries, components, procedures or Documentation.

1.4.3.   Miscellaneous

In entering into the Agreement, neither Party is relying on any representation not specified in the Agreement, including, but not limited to: 1) the performance or function of the Program, other than as expressly warranted in the section Warranty and exclusions; 2) the experiences or recommendations of other Parties; or 3) any output or result that the Licensee may achieve.

All notices under the Agreement must be in writing and sent to the Parties’ addresses: the main address of business will be used, unless a Party designates in writing a different address.

The Parties consent to use electronic means and facsimile transmissions for communication as a form of signed writing.

Any reproduction of the Agreement made by reliable means is considered an original.

Nothing in the Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.

If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement remain in full force and effect.

Neither Party may assign the Agreement to a Third-Party, in whole or in part, without the prior written consent of the other.

1.5.               Payments due

If any authority imposes on the Program a duty, tax, levy, or fee, excluding those based on Omtco’s net income, then the Licensee agrees to pay that amount, as specified in an invoice, or supply exemption Documentation. The Licensee is responsible for any personal property taxes for the Program from the date that the Licensee obtains it.

The Licensee agrees to pay all applicable charges specified by Omtco, charges for use in excess of authorizations, any customs or other duty, tax, levy, or fee imposed by any authority resulting from the Licensee’s acquisitions under the Agreement, and any late payment fees. Amounts are due upon receipt of the invoice and payable within thirty (30) days of the invoice date, to an account specified by Omtco. Omtco does not give credits or refunds for any prepaid, one-time charges, or other charges already due or paid.

The Licensee agrees to: 1) pay withholding tax directly to the appropriate government entity where required by law; 2) provide a tax certificate evidencing such payment to Omtco; 3) pay Omtco only the net proceeds after tax; and 4) fully cooperate with Omtco in seeking a waiver or reduction of such taxes and promptly complete and file all relevant documents.

1.6.               Program transfer

The Licensee may not transfer the Program, nor any of their License rights and obligations, to a Third-Party – except if that Third-Party agrees to the terms of the Agreement and if Omtco has given its written approval to the Licensee prior to the transfer.

If that Third-Party does not agree to the terms of the Agreement, the Licensee may not transfer the Program. If Omtco has not given its written approval to the Licensee, the Licensee may not transfer the Program. If the License is terminated for any reason by either Party, the Licensee is prohibited from transferring the Program to a Third-Party. The Licensee may not transfer a portion of the Program, nor of the Program’s Authorized Use. When the Licensee transfers the Program, the Licensee must also transfer a hard copy of the Agreement. Immediately after the transfer, the Licensee’s License terminates. The party receiving the Program may have to activate the Program and/or the License by registering the Program and/or License by connecting to a remote Omtco server, such as a License server, and registering a License key with Omtco. Activation will not be granted if the transfer has not been approved as stated above.

1.7.               Warranty and exclusions

1.7.1.   Limited warranty

Omtco warrants that the Program, when used in its specified operating environment, will conform to specifications documented in Omtco Documentation or Publications. This warranty applies only to the current version at the time. The Program’s specifications, and specific operating environment information, can be found in Documentation accompanying the Program, such as a readme file, or in a Publication by Omtco, such as an announcement letter or technical Documentation or Publication. The Licensee agrees that such Documentation and other Program content will be supplied only in the English language, unless otherwise required by local law without the possibility of contractual waiver or limitation.

The warranty applies only to the unmodified portion of the Program. Omtco does not warrant uninterrupted or error-free operation of the Program, nor that Omtco will correct all Program defects. The Licensee is responsible for the results obtained from the use of the Program.

During the Warranty Period, Omtco provides the Licensee with access to Omtco knowledge containing information on known Program defects, restrictions, corrections and bypasses – at no additional charge.

If the Program does not function as warranted during the Warranty Period and the problem cannot be resolved with information available from Omtco, the Licensee may return the Program to Omtco and receive a refund of the amount the Licensee paid. After returning the Program, the Licensee’s License terminates. If the Licensee downloaded the Program, the Licensee should contact the Party from whom the Licensee obtained it for instructions on how to obtain a refund.

Omtco warrants support and services using reasonable care and skill.

The Program may contain Third-Party proprietary Programs or components or any intellectual property from Third-parties – including Adobe, Docker, IBM, Microsoft, Oracle, VMware, Sun and The Open Group – which are subject to license agreements. This includes purchasing the authorized usage in compliance with the licensing for the deployed Third-Party Programs. It is the Licensee’s responsibility to verify whether Third-Party License agreements apply and to comply with their terms.

Programs from Third-parties are only licensed to the Licensee by Omtco if explicitly indicated in an agreement with the Licensee or a Publication by Omtco. In such cases, the Program includes explicitly-stated Third-Party code only. Omtco’s service and support obligations, if any, apply only to the unmodified Program. This explicitly-stated Third-Party code is then licensed by Omtco to the Licensee under OLSA Program terms.

This Program and Documentation may provide access to or information about content, products, and services from Third-parties. Omtco is not responsible for, and expressly disclaims, all warranties of any kind with respect to Third-Party content, products, and services unless otherwise set forth in an applicable agreement between you and Omtco. Omtco is not responsible for any loss, costs, or damages incurred due to your access to or use of Third-Party content, products, or services, except as set forth in an applicable agreement between you and Omtco. Should any content, products or services from Third-parties become unavailable or unusable, Omtco is not responsible for and expressly disclaims all warranties of any kind.

1.7.2.   Exclusions

These warranties are the Licensee’s exclusive warranties and replace all other warranties or conditions, express or implied, including, but not limited to, any implied warranties or conditions of merchantability, satisfactory quality, fitness for a particular purpose, title, and any warranty or condition of non-infringement. Some states or jurisdictions do not allow the exclusion of express or implied warranties, so the above exclusion may not apply to the Licensee. In these cases, such warranties are limited in duration to the Warranty Period. No warranties apply after that period. Some states or jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to the Licensee.

These warranties give the Licensee specific legal rights. The Licensee may also have other rights that vary between jurisdictions.

The warranties in this section (Warranty and exclusions) are provided solely by Omtco. The disclaimers in this subsection (Exclusions) also apply to Omtco’s suppliers of Third-Party code. Said Third-parties provide such code without warranties or conditions of any kind. This paragraph does not nullify Omtco’s warranty obligations under the Agreement.

1.8.               Licensee data and databases

To assist the Licensee in isolating the cause of a problem with the Program, Omtco may request that the Licensee allows Omtco to remotely access the Licensee’s system or sends Licensee information or system data to Omtco. However, Omtco is not obligated to provide such assistance unless Omtco and the Licensee enter a separate written agreement under which Omtco agrees to provide said type of support to the Licensee, which is beyond Omtco’s warranty obligations in the Agreement. In any event, Omtco uses information about errors and problems to improve its Programs, products and services, and assist with its provision of related support offerings. For these purposes, Omtco may use Omtco entities and subcontractors, including in one or more countries other than the one in which the Licensee is located, and the Licensee authorizes Omtco to do so.

The Licensee remains responsible for 1) any data and the content of any database the Licensee makes available to Omtco, 2) the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data (including any personally-identifiable data), and 3) backup and recovery of any database and any stored data. The Licensee will not send or provide Omtco access to any personally-identifiable information, whether in data or any other form, and will be responsible for reasonable costs and other amounts that Omtco may incur relating to such information mistakenly provided to Omtco or the loss or disclosure of such information by Omtco, including those arising out of any Third-Party claims.

1.9.               Limitation of liability

The limitations and exclusions in this section (Limitation of liability) apply to the full extent that they can without being prohibited by applicable law and the possibility of contractual waiver.

Omtco’s entire liability for all claims related to the Agreement will not exceed any actual direct damages incurred by the Licensee up to the amounts paid (if recurring charges, up to twelve months’ charges apply) for the Program or service that is the subject of the claim, regardless of the basis of the claim. This limit applies collectively to Omtco, its subsidiaries, contractors, and suppliers. Omtco will not be liable for special, incidental, exemplary, indirect, or economic consequential damages, or lost profits, business, revenue, goodwill, or anticipated savings, including any costs or penalty incurring because of a decision made by the Licensee based on any Omtco Program output.

The following amounts, if a Party is legally liable for them, are not subject to the above cap: i) Third-Party payments referred to in the paragraph below; ii) damages for body injury (including death); and iii) damages to real property and tangible personal property; and iv) damages that cannot be limited under applicable law.

If a Third-Party asserts a claim against the Licensee that an Omtco Program acquired under the Agreement infringes a patent or copyright, the Licensee may consult Omtco regarding said claim and Omtco will provide the Licensee all information known to Omtco in order for the Licensee to achieve the best mitigation efforts. In such cases, the Licensee should promptly notify Omtco in writing of the claim and supply information requested by Omtco.

Omtco has no responsibility for claims based, in whole or in part, on non-Omtco Programs, Programs from Third-Parties, items not provided by Omtco, nor any violation of law or Third-Party rights caused by the Licensee’s content, materials, designs, specifications, or use of a non-current version or release of an Omtco Program when an infringement claim could have been avoided by using a current version or release. Each non-Omtco Program is governed by the terms of the Third-Party end user License agreement that accompanies it. Omtco is not a Party in the Third-Party end user License agreement and assumes no obligations under it.

1.9.1.   Items for which Omtco may be liable

Circumstances may arise for which, because of a default on Omtco’s part or other liability, the Licensee is entitled to recover damages from Omtco. Regardless of the basis on which the Licensee is entitled to claim damages from Omtco (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), Omtco’s entire liability for all aggregate claims arising from, or related to each Program, or otherwise arising under the Agreement, will not exceed the amount of any 1) damage for bodily injury, including death, and damage to real property and tangible personal property and 2) other actual direct damages up to the charges (if the Program is subject to fixed term charges, up to twelve months’ charges) the Licensee paid for the Program that is the subject of the claim.

This limit also applies to any of Omtco’s Program developers and suppliers. It is the maximum for which Omtco and its Program developers and suppliers are collectively responsible.

1.9.2.   Items for which Omtco is not liable

Under no circumstances is Omtco, its Program developers or suppliers, liable for any of the following, even if informed of their possibility: (1) loss of, or damage to, data; (2) special, incidental, exemplary, or indirect damages, or for any economic consequential damages; (3) lost profits, business, revenue, goodwill, or anticipated savings; (4) financial consequences faced by the Licensee following the Licensee’s decisions based on interpretation by the Licensee of any output or result provided by the Program; (5) any consequences faced by the Licensee in connection of the Program in any situation such as, but not limited to, contract negotiation and signatures, internal audits, audits from Third-parties, purchase decisions, commercial decisions, or management decisions.

1.10.          Compliance verification

The rights and obligations set forth in this section remain in effect during the period the Program is licensed to the Licensee, and for four years thereafter.

1.10.1.                  Verification process

The Licensee agrees to create, retain, and provide to Omtco and its auditors accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that the Licensee’s use of all Programs is in compliance with the Agreement, including, without limitation, all of Omtco’s applicable licensing and pricing qualification terms. The Licensee is responsible for 1) ensuring that it does not exceed its Authorized Use at any time, and 2) remaining in compliance with the Agreement at any time.

Upon reasonable notice, Omtco may verify the Licensee’s compliance with the Agreement at all sites and for all environments in which the Licensee uses Programs, for any purpose, subject to the Agreement. Such verification will be conducted in a manner that minimizes disruption to the Licensee’s business, and may be conducted on the Licensee’s premises, during normal business hours. Omtco may use an independent auditor to assist with such verification, provided Omtco has a written confidentiality agreement in place with such an auditor. The Licensee must keep records which are necessary to determine the Authorized Use of each Program at any time during the last 36 months. The Licensee must provide these records when required by Omtco during a License compliance verification within six months of the notification of the compliance verification.

1.10.2.                  Resolution

Omtco will notify the Licensee in writing if any such verification indicates that the Licensee has used any Program in excess of its Authorized Use or is otherwise not in compliance with the Agreement. The Licensee agrees to promptly pay directly to Omtco the charges that Omtco specifies in an invoice for 1) any such excess use, 2) Software Assurance for such excess use for the lesser of the duration of such excess use or four years, and 3) any additional charges and other liabilities determined as a result of such verification.

1.11.          Legal issues

1.11.1.                  Governing law

Each Party is responsible for complying with: i) laws and regulations applicable to its business and content, and ii) import, export and economic sanction laws and regulations, including those of the United States that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users. The Licensee is responsible for its use of Omtco and Third-Party Programs and products.

Both Parties agree to the application of the laws of the country where the transaction is performed (or for services, the laws of the country of the Licensee’s business address) to the Agreement, without regard to conflict of law principles. The rights and obligations of each Party are valid only in the country where the transaction is performed or, if Omtco agrees, the country where the Program is placed in productive use, except all licenses that are valid as specifically granted. If any provision is invalid or unenforceable, the remaining provisions remain in full force and effect.

The United Nations Convention on Contracts for the International Sale of Goods does not apply.

1.11.2.                  Jurisdiction

All rights, duties, and obligations are subject to the courts of the country in which the Licensee obtained the Program License. Should the Licensee and Omtco not agree on the jurisdiction, the applicable law and the language to be used, by default, are the courts of Munich, German law and the German language.

1.11.3.                  Claim

Each Party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under the Agreement. The Parties will attempt in good faith to resolve all disputes, disagreements, or claims between the Parties relating to the Agreement.

Neither the Licensee nor Omtco is responsible for failure to fulfil any obligations due to causes beyond its control.

Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: 1) neither Party will bring legal action, regardless of form, for any claim arising out of, or related to, the Agreement more than two years after the cause of action arose; and 2) upon the expiration of said time limit, any such claim and all respective rights related to the claim lapse.

2.  Program license terms

2.1.               Applicability

Program license terms apply to all Programs licensed through the Agreement.

2.2.               License grant

2.2.1.   Use

The Program is owned by Omtco and is copyrighted and licensed, not sold. The Licensee is by no means the owner of the Program or any of its code, libraries, components, Documentation, procedures or intellectual property.

Omtco grants the Licensee a non-exclusive License to 1) benefit from the Program up to the Authorized Use, 2) make and install copies to support such Authorized Use, and 3) make a backup copy, all provided that:

  • The Licensee has lawfully obtained the Program and complies with the terms of the Agreement;
  • The Licensee obtained the necessary Authorized Use before installation or usage of the Program; if the Licensee wishes to increase their Authorized Use, the Licensee must acquire the Authorized Use in advance and pay any applicable charges;
  • The backup copy is not running or loaded in memory unless the primary Program cannot run;
  • The Licensee reproduces all copyright notices and other legends of ownership on each copy, or partial copy, of the Program;
  • The Licensee ensures that anyone who benefits from the Program 1) does so only on the Licensee’s behalf and 2) complies with the terms of the Agreement; any employee, contractor or consultant acting on behalf of, or for the benefit of, the Licensee is deemed to act on the Licensee’s behalf for any interaction with the Program;
  • The Licensee does not 1) copy, modify, or distribute the Program except as expressly permitted in the Agreement; 2) reverse assemble, reverse compile, otherwise translate, or reverse engineer the Program, except as expressly permitted by law without the possibility of contractual waiver; 3) use any of the Program’s components, files, modules, audio-visual content, or related licensed materials separately from the Program; or 4) sublicense, rent, or lease the Program.

The Licensee must allow Omtco stakeholders and designated auditors free access to the Program, at least under supervision of the Licensee, for control or verification purposes.

Any modification, evolution or change made by the Licensee are forbidden; should the Licensee attempt to modify the Program, it will result in an immediate termination of the Authorized Use.

The Agreement applies to each copy of the Program that Licensee makes.

2.2.2.   Upgrades, updates, fixes, and patches

When the Licensee installs an upgrade, update, fix or patch to the Program, the Licensee accepts any additional or different terms that are applicable to such update, fix or patch. If no additional or different terms are made available to the Licensee then the update, fix, or patch is subject solely to the Agreement. If the Program is replaced by an update, the Licensee agrees to promptly discontinue use of the replaced Program.

2.2.3.   Right to use prior versions of the Program

For any permitted copy or instance, the Licensee may create, store, install, run or access a copy or instance of a prior version in place of the version licensed. The Agreement for the licensed version still applies. Licenses for prior versions do not satisfy the licensing requirements for a Program. Omtco is not obliged to provide support or Documentation or any corrections for any prior version of the Program.

2.3.               Software assurance benefits

Omtco optionally provides Software Assurance (SA) with each Program licensed under the Agreement.

Software Assurance begins on the date mentioned in the Executable Quote. If no date is mentioned in the Executable Quote, then the SA starts on the date that the Executable Quote is signed by both Parties.

Software Assurance ends on the last day of the corresponding month in the following year, unless the date of acquisition is the first day of the month, in which case coverage ends on the last day of the month, 12 months from acquisition. For instance, if SA starts on 20th December 2015 then it will end on 31st December 2016; however, if Software Assurance starts on 1st June 2016 then it will end on 31st May 2017.

2.3.1.1.       Software Assurance Benefits

For Authorized Use under Software Assurance, the Licensee receives two benefits: Version Upgrade Rights and Technical Support.

These benefits are restricted solely to Authorized Use under Software Assurance.

Once Software Assurance has elapsed, the Software Assurance Benefits are no longer available to the Licensee. This applies also if the Licensee chose not to exercise the right to Software Assurance Benefits while an Authorized Use was under Software Assurance.

Version Upgrade Rights: As long as Software Assurance is in effect for an Authorized Use, the Licensee may use any Published code corrections or bypasses of existing versions, any Published new versions, new releases, or updates of a Program and any Published Documentation and Publications.

Technical Support: While Software Assurance is in effect, Omtco provides assistance for the Licensee’s routine, short-duration installation and code-related usage questions. Technical Support does not cover extensive questions, consultancy or training. Technical Support does not include answering questions already explained in the user manual or technical Documentation. Technical Support does not include any commitment as to when a solution will be provided. The Licensee must channel Technical Support requests through the channel provided by Omtco. Technical Support includes only providing existing code patches and fixes and does not include developing or providing new patches or fixes for those versions or releases. Technical Support for a particular version or release of a Program is available only until Omtco withdraws Technical Support for that Program’s version or release. Support withdrawals are Published by Omtco. Once Support is withdrawn, the Licensee must upgrade to a supported version of the Program to continue receiving Technical Support.

2.3.1.   Software Assurance Reinstatement

For a specific Project, the Authorized Use cannot be partially under Software Assurance: either the whole Authorized Use is completely covered and thus eligible for Software Assurance Benefits, or not at all and thus not eligible. If the Licensee chooses to acquire Software Assurance for a Project, the Licensee must maintain Software Assurance for all uses and installations of the designated Project. If the Authorized Use for a Project is only partially under Software Assurance, the Licensee must acquire Software Assurance Reinstatement sufficient to cover all Authorized Use of the Project at the Current Prices.

Should the Licensee use any Software Assurance Benefit for Programs which are not covered by Authorized Use under Software Assurance, the Licensee must acquire Software Assurance Reinstatement sufficient to cover all such unauthorized use at the Current Prices. If a specific Software Assurance Reinstatement price is not mentioned in the Price List, then the Software Assurance Reinstatement price is three-quarters (75%) of the Current Price of the License.

2.4.               Program-specific terms

2.4.1.   Perpetual License

If the License type refers to or contains the phrase “Perpetual License”, then the Program is licensed for a perpetual duration, i.e. an unlimited duration. This license includes only the right to install and/or run the version of the Program which was released at the time of purchase. The Licensee does not have the right to install and/or run any succeeding Program, code, library, component, procedure or intellectual property.

2.4.1.   Fixed term

If the License type refers to or contains the phrase “Fixed term” or “Term”, then the Program is licensed only for a fixed term, i.e. for a limited duration. If the term is not specified, then the term is twelve (12) months, starting on the first day of the month following purchase and ending twelve (12) months later. This license includes only the right to install and/or run the version of the Program which was released at the time of purchase. The Licensee does not have the right to install and/or run any succeeding Program, library, component, procedure or intellectual property.

The Licensee’s License terminates at the end of the fixed term, unless the Licensee and Omtco agree in writing to renew the License. The Licensee must either renew the License or uninstall the Program and destroy any copies. Renewal of the Program License is not automatic. Renewal may require a charge to be paid by the Licensee to Omtco.

2.4.1.   Subscription

If the License type refers to or contains the phrase “Subscription”, then the Program is licensed only for a limited duration called the subscription duration. If the subscription duration is not specified, then the duration is twelve (12) months, starting on the first day of the month following the purchase and ending twelve (12) months later. The License includes the right to install and/or run any version of the Program during the subscription duration.

The Licensee’s License terminates at the end of the fixed term, unless the Licensee and Omtco agree in writing to renew the License. The Licensee must either renew the License or uninstall the Program and destroy any copies. Renewal of the Program License is not automatic. Renewal may require a charge to be paid by the Licensee to Omtco.

2.4.1.   Appliance

If the License type refers to or contains the phrase “Appliance”, then the Program is at the disposal of the Licensee as a compiled Program or containerized application. The Licensee does not have the right to access the Appliance or try to gain access to it. The Licensee is responsible for enforcing this obligation among any Third-parties who have access to the environment hosting the appliance, such as cloud solution providers, hosters, server and application administrators, contractors and consultants. Should the Program need to temporarily or permanently have part of its code copied onto managed devices or environments for the purpose of running the Program, the Licensee does not receive the right to observe, copy or duplicate said code. If discovered, the code must be destroyed by the Licensee and any Third-Party.

2.4.2.   Restricted use

If the License type refers to or contains the phrase “Restricted use”, then Program operations may be restricted to personnel registered with and authorized by Omtco. Authorization by Omtco may be reserved to selected personnel. Omtco may require, during the selection process, for personnel to sign a specific confidentiality agreement or pass Program administration training. Unless explicitly specified, training is not included in the Agreement.

2.4.1.   Evaluation

If the License type refers to or contains the phrase “Evaluation”, then the Program is licensed for a limited duration for the Licensee to assess the Program’s functionality. Unless explicitly specified, the duration is limited to 60 days for evaluation, in a Non-Production environment. Evaluation Licenses are only valid if the Licensee is in possession of an Executable Quote from Omtco stating the evaluation status of the Program. At the end of the Evaluation Period, the Program must be uninstalled, data may no longer be used and must be destroyed, the use of the Program must be discontinued and any copy of the Program destroyed, otherwise the Licensee must purchase a new License with new Authorized Use. The Evaluation Period begins on the date of signing the Executable Quote and ends upon the earliest of 1) the end of the duration or the date specified in writing by Omtco or 2) the date on which the Program automatically disables itself. The Licensee will destroy the Program and all copies made of it within ten days of the end of the Evaluation Period. If Omtco specifies that the Licensee may retain the Program, and the Licensee elects to do so, then the Program will be subject to a new License Agreement, which Omtco will provide to the Licensee. In addition, a charge may apply. The Program may contain a disabling procedure or device that may prevent it from being used after the Evaluation Period ends. The Licensee agrees not to tamper with the disabling procedure, device or the Program itself. The Licensee should take precautions to avoid any loss of data that might result when the Program can no longer be used.

2.4.1.   Non-Production Environment

If the License type refers to or contains the phrase “Non-Production Environment”, then Program installation and usage is restricted to Non-Production Environments.

2.4.1.   Other restrictions

If the License type contains a particular phrase, then this phrase is equivalent to a restriction. This phrase can be a specific organization, location, user, environment, procedure, or any other restriction; the License is restricted to the specific organization, location, user, environment, procedure, or other restriction mentioned in the phrase. Any other use is not permitted.

2.5.               Termination

Either Party may terminate the License if the other does not comply with any of the terms of the Agreement, provided the one not complying is given written notice and reasonable time to comply.

If the License is terminated for any reason by either Party, the Licensee agrees to promptly discontinue use of and destroy all of the Licensee’s copies of the Program. Written confirmation will be provided by the Licensee to Omtco. Any terms of the Agreement that by their nature extend beyond termination of the Agreement remain in effect until fulfilled, and apply to both Parties’ respective successors and assignees.

2.6.               Commercial services

The Licensee may not (and is not licensed to) use the Program to offer commercial hosting services to Third-parties.

2.7.               Other restrictions

The Licensee may not work around any technical limitations in the Program or restrictions in Program Documentation, or separate the Program for use in more than one OSE under a single License (even if the OSEs are on the same physical hardware system), unless expressly permitted by Omtco. Rights to use the Program do not give the Licensee any right to implement Omtco patents or other Omtco intellectual property in the device itself or in any other software or devices.

Administrative rights of the Program are solely managed by Omtco.

2.8.               Training

Program training is not included with the fees related to the license for the Program. Training may be delivered through a separate agreement to be signed between the Licensee and Omtco. Charges may apply.

2.9.               Program support

Omtco provides support with each Omtco Program licensed under the OLSA.

Omtco Program support begins on the date of the Omtco Program License being granted and ends on the last day of the corresponding month in the following year, unless the date of the License being granted is the first day of the month, in which case coverage ends on the last day of the month, 12 months from the date the License was granted.

Omtco Program support includes defect corrections, restrictions, bypasses, and any new versions, releases, or updates Omtco makes generally available.

Omtco aims to correct or modify any defects that are identified in the Program and its Documentation within a reasonable period of time after it has been acknowledged by Omtco support. This correction may relate to the Program itself or a workaround in the use of the Program.

Integration of patches is done by the Licensee based on the Program Documentation. Omtco reserves the right to refuse any modification that detract from the functional specifications of its Program. Omtco cannot be held responsible for system unavailability or processing errors resulting from improper use of its Program by the Licensee.

3.  Price List

Omtco reserves the right to modify the Price List. Changes to the Price List are Published by Omtco or made available by any means to the Licensee. Changes to the Price List apply from their Publication date.

4.  Notices

The following terms are registered trademarks of organizations in the United States and other countries:

Trademark Organization
AIX AIX IBM International Business Machines, Corp
HP-UX HP Hewlett-Packard
Java Sun Microsystems, Inc. or Oracle Corp.
Oracle Virtual Machine, Oracle Database Oracle Corp.
UNIX The Open Group
Linux Linus Torvalds

 

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