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.QT-ENTERPRISE-LICENSE-AGREEMENT
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.QT-ENTERPRISE-LICENSE-AGREEMENT
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QT LICENSE AGREEMENT
Agreement version 4.4.1
This Qt License Agreement ("Agreement") is a legal agreement for the licensing
of Licensed Software (as defined below) between The Qt Company (as defined
below) and the Licensee who has accepted the terms of this Agreement by signing
this Agreement or by downloading or using the Licensed Software or in any other
appropriate means.
Capitalized terms used herein are defined in Section 1.
WHEREAS:
(A) Licensee wishes to use the Licensed Software for the purpose of
developing and distributing Applications and/or Devices (each as defined
below);
(B) The Qt Company is willing to grant the Licensee a right to use Licensed
Software for such a purpose pursuant to term and conditions of this
Agreement; and
(C) Parties wish to enable that their respective Affiliates also can sell
and purchase licenses to serve Licensee Affiliates' needs to use Licensed
Software pursuant to terms of the Agreement. Any such license purchases by
Licensee Affiliates from The Qt Company or its Affiliates will create
contractual relationship directly between the relevant The Qt Company and
the respective ordering Licensee Affiliate "Acceding Agreement").
Accordingly, Licensee shall not be a party to any such Acceding Agreement,
and no rights or obligations are created to the Licensee thereunder but all
rights and obligations under such Acceding Agreement are vested and borne
solely by the ordering Licensee Affiliate and the relevant The Qt Company
as a contracting parties under such Acceding Agreement.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS
"Affiliate" of a Party shall mean an entity
(i) which is directly or indirectly controlling such Party;
(ii) which is under the same direct or indirect ownership or control as
such Party; or
(iii) which is directly or indirectly owned or controlled by such Party.
For these purposes, an entity shall be treated as being controlled by another
if that other entity has fifty percent (50 %) or more of the votes in such
entity, is able to direct its affairs and/or to control the composition of its
board of directors or equivalent body.
"Add-on Products" shall mean The Qt Company's specific add-on software products
which are not licensed as part of The Qt Company's standard product offering,
but shall be included into the scope of Licensed Software only if so
specifically agreed between the Parties.
"Agreement Term" shall mean the validity period of this Agreement, as set forth
in Section 12.
"Applications" shall mean software products created using the Licensed
Software, which include the Redistributables, or part thereof.
"Contractor(s)" shall mean third party consultants, distributors and
contractors performing services to the Licensee under applicable contractual
arrangement.
"Customer(s)" shall mean Licensee's customers to whom Licensee, directly or
indirectly, distributes copies of the Redistributables as integrated or
incorporated into Applications or Devices.
"Data Protection Legislation" shall mean the General Data Protection Regulation
(EU 2016/679) (GDPR) and any national implementing laws, regulations and
secondary legislation, as may be amended or updated from time to time, as well
as any other data protection laws or regulations applicable in relevant
territory.
"Deployment Platforms" shall mean target operating systems and/or hardware
specified in the License Certificate, on which the Redistributables can be
distributed pursuant to the terms and conditions of this Agreement.
"Designated User(s)" shall mean the employee(s) of Licensee or Licensee's
Affiliates acting within the scope of their employment or Licensee's
Contractors acting within the scope of their services on behalf of Licensee.
"Development License" shall mean the license needed by the Licensee for each
Designated User to use the Licensed Software under the license grant described
in Section 3.1 of this Agreement. Development Licenses are available per
respective Licensed Software products, each product having its designated scope
and purpose of use.
"Development License Term" shall mean the agreed validity period of the
Development License or QA Tools license during which time the relevant Licensed
Software product can be used pursuant to this Agreement. Agreed Development
License Term, as ordered and paid for by the Licensee, shall be memorialized in
the applicable License Certificate.
"Development Platforms" shall mean those host operating systems specified in
the License Certificate, in which the Licensed Software can be used under the
Development License.
"Devices" shall mean
(1) hardware devices or products that
i. are manufactured and/or distributed by the Licensee, its Affiliates,
Contractors or Customers, and
ii. incorporate, integrate or link to Applications such that
substantial functionality of such unit, when used by an End User,
is provided by Application(s) or otherwise depends on the Licensed
Software, regardless of whether the Application is developed by
Licensee or its Contractors; or
(2) Applications designed for the hardware devices specified in item (1).
Devices covered by this Agreement shall be specified in Appendix 2 or in a
quote.
"Distribution License(s)" shall mean a royalty-bearing license required for any
kind of sale, trade, exchange, loan, lease, rental or other distribution by or
on behalf of Licensee to a third party of Redistributables in connection with
Devices pursuant to license grant described in Section 3.3 of this Agreement.
Distribution Licensed are sold separately for each type of Device respectively
and cannot be used for any type of Devices at Licensee's discretion.
"Distribution License Packs" shall mean set of prepaid Distribution Licenses
for distribution of Redistributables, as defined in The Qt Company's standard
price list, quote, Purchase Order confirmation or in an Appendix 2 hereto, as
the case may be.
"End User" shall mean the final end user of the Application or a Device.
"Evaluation License Term" shall mean a time period specified in the License
Certificate for the Licensee to use the relevant Licensed Software for
evaluation purposes according to Section 3.6 herein.
"Intellectual Property Rights" shall mean patents (including utility models),
design patents, and designs (whether or not capable of registration), chip
topography rights and other like protection, copyrights, trademarks, service
marks, trade names, logos or other words or symbols and any other form of
statutory protection of any kind and applications for any of the foregoing as
well as any trade secrets.
"License Certificate" shall mean a certificate generated by The Qt Company for
each Designated User respectively upon them downloading the Licensed Software,
which will be available under respective Designated User's Qt Account at
account.qt.io. License Certificates will specify relevant information
pertaining the Licensed Software purchased by Licensee and Designated User's
license to the Licensed Software.
"License Fee" shall mean the fee charged to the Licensee for rights granted
under the terms of this Agreement.
"Licensed Software" shall mean specified product of commercially licensed
version of Qt Software and/or QA Tools defined in Appendix 1 and/or Appendix 3,
which Licensee has purchased and which is provided to Licensee under the terms
of this Agreement. Licensed Software shall include corresponding online or
electronic documentation, associated media and printed materials, including the
source code (where applicable), example programs and the documentation.
Licensed Software does not include Third Party Software (as defined in Section
4) or Open Source Qt. The Qt Company may, in the course of its development
activities, at its free and absolute discretion and without any obligation to
send or publish any notifications to the Licensee or in general, make changes,
additions or deletions in the components and functionalities of the Licensed
Software, provided that no such changes, additions or deletions will affect
the already released version of the Licensed Software, but only upcoming
version(s).
"Licensee" shall mean the individual or legal entity that is party to this
Agreement.
"Licensee's Records" shall mean books and records that contain information
bearing on Licensee's compliance with this Agreement, Licensee's use of Open
Source Qt and/or the payments due to The Qt Company under this Agreement,
including, but not limited to user information, assembly logs, sales records
and distribution records.
"Modified Software" shall have the meaning as set forth in Section 2.3.
"Online Services" shall mean any services or access to systems made available
by The Qt Company to the Licensee over the Internet relating to the Licensed
Software or for the purpose of use by the Licensee of the Licensed Software or
Support. Use of any such Online Services is discretionary for the Licensee and
some of them may be subject to additional fees.
"Open Source Qt" shall mean Qt Software available under the terms of the GNU
Lesser General Public License, version 2.1 or later ("LGPL") or the GNU General
Public License, version 2.0 or later ("GPL"). For clarity, Open Source Qt shall
not be provided, governed or used under this Agreement.
"Party" or "Parties" shall mean Licensee and/or The Qt Company.
"Permitted Software" shall mean (i) third party open source software products
that are generally available for public in source code form and free of any
charge under any of the licenses approved by Open Source Initiative as listed
on https://opensource.org/licenses, which may include parts of Open Source Qt
or be developed using Open Source Qt; and (ii) software The Qt Company has made
available via its Qt Marketplace online distribution channel.
"Pre-Release Code" shall have the meaning as set forth in Section 4.
"Prohibited Combination" shall mean any effort to use, combine, incorporate,
link or integrate Licensed Software with any software created with or
incorporating Open Source Qt, or use Licensed Software for creation of any such
software.
"Purchase Order" shall have the meaning as set forth in Section 10.2.
"QA Tools" shall mean software libraries and tools as defined in Appendix 1
depending on which product(s) the Licensee has purchased under the Agreement.
"Qt Software" shall mean the software libraries and tools of The Qt Company,
which The Qt Company makes available under commercial and/or open source
licenses.
"Redistributables" shall mean the portions of the Licensed Software set forth
in Appendix 1 that may be distributed pursuant to the terms of this Agreement
in object code form only, including any relevant documentation. Where relevant,
any reference to Licensed Software in this Agreement shall include and refer
also to Redistributables.
"Renewal Term" shall mean an extension of previous Development License Term as
agreed between the Parties.
"Submitted Modified Software" shall have the meaning as set forth in Section
2.3.
"Support" shall mean standard developer support that is provided by The Qt
Company to assist Designated Users in using the Licensed Software in accordance
with this Agreement and the Support Terms.
"Support Terms" shall mean The Qt Company's standard support terms specified in
Appendix 9 hereto.
"Taxes" shall have the meaning set forth in Section 10.5.
"The Qt Company" shall mean:
(i) in the event Licensee is an individual residing in the United States or
a legal entity incorporated in the United States or having its
headquarters in the United States, The Qt Company Inc., a Delaware
corporation with its office at 3031 Tisch Way, 110 Plaza West,
San Jose, CA 95128, USA.; or
(ii) in the event the Licensee is an individual residing outside of the
United States or a legal entity incorporated outside of the United
States or having its registered office outside of the United States,
The Qt Company Ltd., a Finnish company with its registered office at
Miestentie 7, 02150 Espoo, Finland.
"Third-Party Software" shall have the meaning set forth in Section 4.
"Updates" shall mean a release or version of the Licensed Software containing
bug fixes, error corrections and other changes that are generally made
available to users of the Licensed Software that have contracted for Support.
Updates are generally depicted as a change to the digits following the decimal
in the Licensed Software version number. The Qt Company shall make Updates
available to the Licensee under the Support. Updates shall be considered as
part of the Licensed Software hereunder.
"Upgrades" shall mean a release or version of the Licensed Software containing
enhancements and new features and are generally depicted as a change to the
first digit of the Licensed Software version number. In the event Upgrades are
provided to the Licensee under this Agreement, they shall be considered as part
of the Licensed Software hereunder.
2. OWNERSHIP
2.1. Ownership of The Qt Company
The Licensed Software is protected by copyright laws and international
copyright treaties, as well as other intellectual property laws and treaties.
The Licensed Software is licensed, not sold.
All of The Qt Company's Intellectual Property Rights are and shall remain the
exclusive property of The Qt Company or its licensors respectively. No rights
to The Qt Company's Intellectual Property Rights are assigned or granted to
Licensee under this Agreement, except when and to the extent expressly
specified herein.
2.2. Ownership of Licensee
All the Licensee's Intellectual Property Rights are and shall remain the
exclusive property of the Licensee or its licensors respectively.
All Intellectual Property Rights to the Modified Software, Applications and
Devices shall remain with the Licensee and no rights thereto shall be granted
by the Licensee to The Qt Company under this Agreement (except as set forth in
Section 2.3 below).
2.3. Modified Software
Licensee may create bug-fixes, error corrections, patches or modifications to
the Licensed Software ("Modified Software"). Such Modified Software may break
the source or binary compatibility with the Licensed Software (including
without limitation through changing the application programming interfaces
("API") or by adding, changing or deleting any variable, method, or class
signature in the Licensed Software and/or any inter-process protocols,
services or standards in the Licensed Software libraries). To the extent that
Licensee's Modified Software so breaks source or binary compatibility with the
Licensed Software, Licensee acknowledges that The Qt Company's ability to
provide Support may be prevented or limited and Licensee's ability to make use
of Updates may be restricted.
Licensee may, at its sole and absolute discretion, choose to submit Modified
Software to The Qt Company ("Submitted Modified Software") in connection with
Licensee's Support request, service request or otherwise. In the event
Licensee does so, then, Licensee hereby grants The Qt Company a sublicensable,
assignable, irrevocable, perpetual, worldwide, non-exclusive, royalty-free and
fully paid-up license, under all of Licensee's Intellectual Property Rights, to
reproduce, adapt, translate, modify, and prepare derivative works of, publicly
display, publicly perform, sublicense, make available and distribute such
Submitted Modified Software as The Qt Company sees fit at its free and absolute
discretion.
3. LICENSES GRANTED
3.1. Development with Licensed Software
Subject to the terms of this Agreement, The Qt Company grants to Licensee a
worldwide, non-exclusive, non-transferable license, valid for each Development
License Term, to use, modify and copy the Licensed Software by Designated
Users on the Development Platforms for the sole purposes of designing,
developing, demonstrating and testing Application(s) and/or Devices, and to
provide thereto related support and other related services to Customers. Each
Application and/or Device can only include, incorporate or integrate
contributions by such Designated Users who are duly licensed for the applicable
Development Platform(s) and Deployment Platform(s) (i.e have a valid license
for the appropriate Licensed Software product).
Licensee may install copies of the Licensed Software on five (5) computers per
Designated User, provided that only the Designated Users who have a valid
Development License may use the Licensed Software.
Licensee may at any time designate another Designated User to replace a
then-current Designated User by notifying The Qt Company in writing, where such
replacement is due to termination of employment, change of job duties, long
time absence or other such permanent reason affecting Designated User's need
for Licensed Software.
Upon expiry of the initially agreed Development License Term, the respective
Development License Term shall be automatically extended to one or more Renewal
Term(s), unless and until either Party notifies the other Party in writing, or
any other method acceptable to The Qt Company (it being specifically
acknowledged and understood that verbal notification is explicitly deemed
inadequate in all circumstances), that it does not wish to continue the
Development License Term, such notification to be provided to the other Party
no less than thirty (30) days before expiry of the respective Development
License Term. The Qt Company shall, in good time before the due date for the
above notification, remind the Licensee on the coming Renewal Term. Unless
otherwise agreed between the Parties, Renewal Term shall be 12 months.
Any such Renewal Term shall be subject to License Fees agreed between the
Parties or, if no advance agreement exists, subject to The Qt Company's
standard list pricing applicable at the commencement date of any such
Renewal Term.
The Qt Company may either request the Licensee to place a purchase order
corresponding to a quote by The Qt Company, or use Licensee's stored Credit
Card information in the Qt Account to automatically charge the Licensee for the
relevant Renewal Term.
3.2. Distribution of Applications
Subject to the terms of this Agreement, The Qt Company grants to Licensee a
worldwide, non-exclusive, non-transferable, revocable (for cause pursuant to
this Agreement), right and license, valid for the Agreement Term, to
(i) distribute, by itself or through its Contractors, Redistributables as
installed, incorporated or integrated into Applications for execution
on the Deployment Platforms, and
(ii) grant perpetual and irrevocable sublicenses to Redistributables, as
distributed hereunder, for Customers solely to the extent necessary in
order for the Customers to use the Applications for their respective
intended purposes.
Right to distribute the Redistributables as part of an Application as provided
herein is not royalty-bearing but is conditional upon the Application having
been created, updated and maintained under a valid and duly paid Development
Licenses.
3.3. Distribution of Devices
Subject to the terms of this Agreement, The Qt Company grants to Licensee a
worldwide, non-exclusive, non-transferable, revocable (for cause pursuant to
this Agreement), right and license, valid for the Agreement Term, to
(i) distribute, by itself or through one or more tiers of Contractors,
Redistributables as installed, incorporated or integrated, or intended
to be installed, incorporated or integrated into Devices for execution
on the Deployment Platforms, and
(ii) grant perpetual and irrevocable sublicenses to Redistributables, as
distributed hereunder, for Customers solely to the extent necessary in
order for the Customers to use the Devices for their respective
intended purposes.
Right to distribute the Devices as provided herein is conditional upon
(i) the Devices having been created, updated and maintained under a valid
and duly paid Development Licenses, and
(ii) the Licensee having acquired corresponding Distribution Licenses at
the time of distribution of any Devices to Customers.
3.4. Further Requirements
The licenses granted above in this Section 3 by The Qt Company to Licensee are
conditional and subject to Licensee's compliance with the following terms:
(i) Licensee acknowledges that The Qt Company has separate products of
Licensed Software for the purpose of Applications and Devices
respectively, where development and distribution of Devices is only
allowed using the correct designated product. Licensee shall make sure
and bear the burden of proof that Licensee is using a correct product
of Licensed Software entitling Licensee to development and distribution
of Devices;
(ii) Licensee shall not remove or alter any copyright, trademark or other
proprietary rights notice(s) contained in any portion of the Licensed
Software;
(iii) Applications must add primary and substantial functionality to the
Licensed Software so as not to compete with the Licensed Software;
(iv) Applications may not pass on functionality which in any way makes it
possible for others to create software with the Licensed Software;
provided however that Licensee may use the Licensed Software's
scripting and QML ("Qt Quick") functionality solely in order to enable
scripting, themes and styles that augment the functionality and
appearance of the Application(s) without adding primary and substantial
functionality to the Application(s);
(v) Licensee shall not use Licensed Software in any manner or for any
purpose that infringes, misappropriates or otherwise violates any
Intellectual property or right of any third party, or that violates any
applicable law;
(vi) Licensee shall not use The Qt Company's or any of its suppliers'
names, logos, or trademarks to market Applications, except that
Licensee may use "Built with Qt" logo to indicate that Application(s)
or Device(s) was developed using the Licensed Software;
(vii) Licensee shall not distribute, sublicense or disclose source code of
Licensed Software to any third party (provided however that Licensee
may appoint employee(s) of Contractors and Affiliates as Designated
Users to use Licensed Software pursuant to this Agreement). Such right
may be available for the Licensee subject to a separate software
development kit ("SDK") license agreement to be concluded with The Qt
Company;
(viii) Licensee shall not grant the Customers a right to (a) make copies of
the Redistributables except when and to the extent required to use the
Applications and/or Devices for their intended purpose, (b) modify the
Redistributables or create derivative works thereof, (c) decompile,
disassemble or otherwise reverse engineer Redistributables, or (d)
redistribute any copy or portion of the Redistributables to any third
party, except as part of the onward sale of the Application or Device
on which the Redistributables are installed;
(ix) Licensee shall not and shall cause that its Affiliates or Contractors
shall not use Licensed Software in any Prohibited Combination, unless
Licensee has received an advance written permission from The Qt Company
to do so. Absent such written permission, any and all distribution by
the Licensee during the Agreement Term of a hardware device or product
a) which incorporate or integrate any part of Licensed Software or Open
Source Qt; or b) where substantial functionality is provided by
software built with Licensed Software or Open Source Qt or otherwise
depends on the Licensed Software or Open Source Qt, shall be considered
to be Device distribution under this Agreement and shall be dependent
on Licensee's compliance thereof (including but not limited to
obligation to pay applicable License Fees for such distribution).
Notwithstanding what is provided above in this sub-section (ix),
Licensee is entitled to use and combine Licensed Software with any
Permitted Software;
(x) Licensee shall cause all of its Affiliates, Contractors and Customers
entitled to make use of the licenses granted under this Agreement, to
be contractually bound to comply with the relevant terms of this
Agreement and not to use the Licensed Software beyond the terms hereof
and for any purposes other than operating within the scope of their
services for Licensee. Licensee shall be responsible for any and all
actions and omissions of its Affiliates and Contractors relating to the
Licensed Software and use thereof (including but not limited to payment
of all applicable License Fees);
(xi) Except when and to the extent explicitly provided in this Section 3,
Licensee shall not transfer, publish, disclose, display or otherwise
make available the Licensed Software; and
(xii) Licensee shall not attempt or enlist a third party to conduct or
attempt to conduct any of the above.
Above terms shall not be applicable if and to the extent they conflict with any
mandatory provisions of any applicable laws.
Any use of Licensed Software beyond the provisions of this Agreement is
strictly prohibited and requires an additional license from The Qt Company.
3.5 QA Tools License
Subject to the terms of this Agreement, The Qt Company grants to Licensee a
worldwide, non-exclusive, non-transferable license, valid for the Development
License Term, to use the QA Tools for Licensee's internal business purposes in
the manner provided below and in Appendix 1 hereto.
Licensee may modify the QA Tools except for altering or removing any details of
ownership, copyright, trademark or other property right connected with the QA
Tools.
Licensee shall not distribute the QA Tools or any part thereof, modified or
unmodified, separately or as part of any software package, Application or
Device.
Upon expiry of the initially agreed Development License Term, the respective
Development License Term shall be automatically extended to one or more Renewal
Term(s), unless and until either Party notifies the other Party in writing, or
any other method acceptable to The Qt Company (it being specifically
acknowledged and understood that verbal notification is explicitly deemed
inadequate in all circumstances), that it does not wish to continue the
Development License Term, such notification to be provided to the other Party
no less than thirty (30) days before expiry of the respective Development
License Term. The Qt Company shall, in good time before the due date for the
above notification, remind the Licensee on the coming Renewal Term. Unless
otherwise agreed between the Parties, Renewal Term shall be 12 months.
Any such Renewal Term shall be subject to License Fees agreed between the
Parties or, if no advance agreement exists, subject to The Qt Company's
standard list pricing applicable at the commencement date of any such
Renewal Term.
3.6 Evaluation License
Subject to the terms of this Agreement, The Qt Company grants to Licensee a
worldwide, non-exclusive, non-transferable license, valid for the Evaluation
License Term to use the Licensed Software solely for the Licensee's internal
use to evaluate and determine whether the Licensed Software meets Licensee's
business requirements, specifically excluding any commercial use of the
Licensed Software or any derived work thereof.
Upon the expiry of the Evaluation License Term, Licensee must either
discontinue use of the relevant Licensed Software or acquire a commercial
Development License or QA Tools License specified herein.
4. THIRD-PARTY SOFTWARE
The Licensed Software may provide links or access to third party libraries or
code (collectively "Third-Party Software") to implement various functions.
Third-Party Software does not, however, comprise part of the Licensed Software,
but is provided to Licensee complimentary and use thereof is discretionary for
the Licensee. Third-Party Software will be listed in the ".../src/3rdparty"
source tree delivered with the Licensed Software or documented in the Licensed
Software, as such may be amended from time to time. Licensee acknowledges that
use or distribution of Third-Party Software is in all respects subject to
applicable license terms of applicable third-party right holders.
5. PRE-RELEASE CODE
The Licensed Software may contain pre-release code and functionality, or sample
code marked or otherwise stated with appropriate designation such as
"Technology Preview", "Alpha", "Beta", "Sample", "Example" etc.
("Pre-Release Code").
Such Pre-Release Code may be present complimentary for the Licensee, in order
to provide experimental support or information for new platforms or
preliminary versions of one or more new functionalities or for other similar
reasons. The Pre-Release Code may not be at the level of performance and
compatibility of a final, generally available, product offering. The
Pre-Release Code may not operate correctly, may contain errors and may be
substantially modified by The Qt Company prior to the first commercial
product release, if any. The Qt Company is under no obligation to make
Pre-Release Code commercially available, or provide any Support or Updates
relating thereto. The Qt Company assumes no liability whatsoever regarding
any Pre-Release Code, but any use thereof is exclusively at Licensee's own risk
and expense.
For clarity, unless Licensed Software specifies different license terms for the
respective Pre-Release Code, the Licensee is entitled to use such pre-release
code pursuant to Section 3, just like other Licensed Software.
6. LIMITED WARRANTY AND WARRANTY DISCLAIMER
The Qt Company hereby represents and warrants that (i) it has the power and
authority to grant the rights and licenses granted to Licensee under this
Agreement, and (ii) Licensed Software will operate materially in accordance
with its specifications.
Except as set forth above, the Licensed Software is licensed to Licensee "as
is" and Licensee's exclusive remedy and The Qt Company's entire liability for
errors in the Licensed Software shall be limited, at The Qt Company's option,
to correction of the error, replacement of the Licensed Software or return of
the applicable fees paid for the defective Licensed Software for the time
period during which the License is not able to utilize the Licensed Software
under the terms of this Agreement.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE QT COMPANY ON BEHALF OF
ITSELF AND ITS LICENSORS, SUPPLIERS AND AFFILIATES, DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NON-INFRINGEMENT WITH REGARD TO THE LICENSED SOFTWARE. THE QT COMPANY DOES NOT
WARRANT THAT THE LICENSED SOFTWARE WILL SATISFY LICENSEE'S REQUIREMENTS OR THAT
IT WILL OPERATE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE
UNINTERRUPTED.
7. LIMITATION OF LIABILITY
EXCEPT FOR (I) CASES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, AND (II)
BREACH OF CONFIDENTIALITY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFIT,
LOSS OF DATA, LOSS OF BUSINESS OR GOODWILL OR ANY OTHER INDIRECT, SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE COST, DAMAGES OR EXPENSE OF ANY KIND,
HOWSOEVER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
EXCEPT FOR (I) CASES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, AND (II)
BREACH OF CONFIDENTIALITY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT SHALL EITHER PARTY'S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT
EXCEED THE AGGREGATE LICENSE FEES PAID OR PAYABLE TO THE QT COMPANY BY LICENSEE
DURING THE DEVELOPMENT LICENSE TERM DURING WHICH THE EVENT RESULTING IN SUCH
LIABILITY OCCURRED.
THE PROVISIONS OF THIS SECTION 7 ALLOCATE THE RISKS UNDER THIS AGREEMENT
BETWEEN THE QT COMPANY AND LICENSEE AND THE PARTIES HAVE RELIED UPON THE
LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS
AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, LICENSEE SHALL
ALWAYS BE LIABLE TO PAY THE APPLICABLE LICENSE FEES CORRESPONDING TO ITS
ACTUAL USE OF LICENSED SOFTWARE.
8. SUPPORT, UPDATES AND ONLINE SERVICES
Upon due payment of the agreed License Fees the Licensee will be eligible to
receive Support and Updates and to use the Online Services during the agreed
Development License Term or other agreed fixed time period. Support is
provided according to agreed support level and subject to applicable
requirements and restrictions, as specified in the Support Terms.
Unless otherwise decided by The Qt Company at its free and absolute discretion,
Upgrades will not be included in the Support but may be available subject to
additional fees.
From time to time The Qt Company may change the Support Terms, provided that
during the respective ongoing Support period the level of Support may not be
reduced without the consent of the Licensee.
Unless otherwise agreed, The Qt Company shall not be responsible for providing
any service or support to Customers.
9. CONFIDENTIALITY
Each Party acknowledges that during the Agreement Term each Party may receive
information about the other Party's business, business methods, business plans,
customers, business relations, technology, and other information, including the
terms of this Agreement, that is confidential and of great value to the other
Party, and the value of which would be significantly reduced if disclosed to
third parties ("Confidential Information"). Accordingly, when a Party (the
"Receiving Party") receives Confidential Information from the other Party (the
"Disclosing Party"), the Receiving Party shall only disclose such information
to employees and Contractors on a need to know basis, and shall cause its
employees and employees of its Affiliates to: (i) maintain any and all
Confidential Information in confidence; (ii) not disclose the Confidential
Information to a third party without the Disclosing Party's prior written
approval; and (iii) not, directly or indirectly, use the Confidential
Information for any purpose other than for exercising its rights and
fulfilling its responsibilities pursuant to this Agreement. Each Party shall
take reasonable measures to protect the Confidential Information of the other
Party, which measures shall not be less than the measures taken by such Party
to protect its own confidential and proprietary information.
Obligation of confidentiality shall not apply to information that (i) is or
becomes generally known to the public through no act or omission of the
Receiving Party; (ii) was in the Receiving Party's lawful possession prior to
the disclosure hereunder and was not subject to limitations on disclosure or
use; (iii) is developed independently by employees or Contractors of the
Receiving Party or other persons working for the Receiving Party who have not
had access to the Confidential Information of the Disclosing Party, as proven
by the written records of the Receiving Party; (iv) is lawfully disclosed to
the Receiving Party without restrictions, by a third party not under an
obligation of confidentiality; or (v) the Receiving Party is legally compelled
to disclose, in which case the Receiving Party shall notify the Disclosing
Party of such compelled disclosure and assert the privileged and confidential
nature of the information and cooperate fully with the Disclosing Party to
limit the scope of disclosure and the dissemination of disclosed Confidential
Information to the minimum extent necessary.
The obligations under this Section 9 shall continue to remain in force for a
period of five (5) years after the last disclosure, and, with respect to trade
secrets, for so long as such trade secrets are protected under applicable trade
secret laws.
10. FEES, DELIVERY AND PAYMENT
10.1. License Fees
License Fees are described in The Qt Company's standard price list, quote or
Purchase Order confirmation or in an Appendix 2 hereto, as the case may be.
Unless otherwise expressly provided in this Agreement, the License Fees shall
not be refunded or claimed as a credit in any event or for any reason
whatsoever.
10.2. Ordering Licenses
Licensee may purchase Development Licenses, Distribution Licenses and QA Tools
Licenses pursuant to agreed pricing terms or, if no specific pricing terms have
been agreed upon, at The Qt Company's standard pricing terms applicable at the
time of purchase.
Unless expressly otherwise agreed, any price or other term quoted to the
Licensee or specified herein shall only be valid for the thirty (30) days from
the effective date of this Agreement, Appendix 2 or the date of the quote, as
applicable.
Licensee shall submit all purchase orders for Development Licenses and
Distribution Licenses to The Qt Company by email or any other method acceptable
to The Qt Company (each such order is referred to herein as a "Purchase Order")
for confirmation, whereupon the Purchase Order shall become binding between the
Parties.
Licensee acknowledges and agrees that all Purchase Orders for Licensed Software
the Licensee makes during the Agreement Term shall be governed exclusively
under the terms of this Agreement.
10.3. Distribution License Packs
Unless otherwise agreed, Distribution Licenses shall be purchased by way of
Distribution License Packs.
Upon due payment of the ordered Distribution License Pack(s), the Licensee will
have an account of Distribution Licenses available for distributing the
Redistributables in accordance with this Agreement.
Each time Licensee distributes a copy of Redistributables, then one
Distribution License is used, and Licensee's account of available Distribution
Licenses is decreased accordingly.
Licensee may distribute copies of the Redistributables so long as Licensee has
Distribution Licenses remaining on its account.
10.4. Payment Terms
License Fees and any other charges under this Agreement shall be paid by
Licensee no later than thirty (30) days from the date of the applicable invoice
from The Qt Company.
The Qt Company will submit an invoice to Licensee after the date of this
Agreement and/or after The Qt Company receives a Purchase Order from Licensee.
A late payment charge of the lower of (a) one percent per month; or (b) the
interest rate stipulated by applicable law, shall be charged on any unpaid
balances that remain past due and which have not been disputed by the Licensee
in good faith.
10.5. Taxes
All License Fees and other charges payable hereunder are gross amounts but
exclusive of any value added tax, use tax, sales tax, withholding tax and other
taxes, duties or tariffs ("Taxes") levied directly for the sale, delivery or
use of Licensed Software hereunder pursuant to any applicable law. Such
applicable Taxes shall be paid by Licensee to The Qt Company, or, where
applicable, in lieu of payment of such Taxes to The Qt Company, Licensee shall
provide an exemption certificate to The Qt Company and any applicable
authority.
11. RECORD-KEEPING AND REPORTING OBLIGATIONS; AUDIT RIGHTS
11.1. Licensee's Record-keeping
Licensee shall at all times during the Agreement Term and for a period of two
(2) years thereafter maintain Licensee's Records in an accurate and up-to-date
form. Licensee's Records shall be adequate to reasonably enable The Qt Company
to determine Licensee's compliance with the provisions of this Agreement. The
records shall conform to general good accounting practices.
Licensee shall, within thirty (30) days from receiving The Qt Company's request
to that effect, deliver to The Qt Company a report based on Licensee's Records,
such report to contain information, in sufficient detail, on (i) number and
identity of users working with Licensed Software or Open Source Qt, (ii) copies
of Redistributables distributed by Licensee during the most recent calendar
quarter and/or any other term specified by The Qt Company, , and (iii) any
other information pertaining to Licensee's compliance with the terms of this
Agreement (like e.g. information on products and/or projects relating to use of
Distribution Licenses), as The Qt Company may reasonably require from time to
time.
11.2. The Qt Company's Audit Rights
The Qt Company or an independent auditor acting on behalf of The Qt Company's,
may, upon at least thirty (30) days' prior written notice and at its expense,
audit Licensee with respect to the Licensee's use of the Licensed Software, but
not more frequently than once during each 6-month period. Such audit may be
conducted by mail, electronic means or through an in-person visit to Licensee's
place of business. Any possible in-person audit shall be conducted during
regular business hours at Licensee's facilities and shall not unreasonably
interfere with Licensee's business activities and shall be limited in scope to
verify Licensee's compliance with the terms of this Agreement. The Qt Company
or the independent auditor acting on behalf of The Qt Company shall be entitled
to inspect Licensee's Records and conduct necessary interviews of Licensee's
relevant employees and Contractors. All such Licensee's Records and use thereof
shall be subject to an obligation of confidentiality under this Agreement.
If an audit reveals that Licensee is using the Licensed Software beyond scope
of the licenses Licensee has paid for, Licensee shall pay to The Qt Company any
amounts owed for such unauthorized use within 30 days from receipt of the
corresponding invoice from The Qt Company.
In addition, in the event the audit reveals a material violation of the terms
of this Agreement (without limitation, either (i) underpayment of more than 10
% of License Fees or 10,000 euros (whichever is more) or (ii) distribution of
products, which include or result from Prohibited Combination, shall be deemed
a material violation for purposes of this section), then the Licensee shall
pay The Qt Company's reasonable cost of conducting such audit.
12. TERM AND TERMINATION
12.1. Agreement Term
This Agreement shall enter into force upon due acceptance by both Parties and
remain in force until terminated pursuant to the terms of this Section 12
("Agreement Term").
12.2. Termination for breach and suspension of rights
Either Party shall have the right to terminate this Agreement upon thirty (30)
days prior written notice if the other Party commits a material breach of any
obligation of this Agreement and fails to remedy such breach within such notice
period.
Instead of termination, The Qt Company shall have the right to suspend or
withhold grants of all rights to the Licensed Software hereunder, including but
not limited to the Development Licenses, Distribution License, and Support,
should Licensee fail to make payment in timely fashion or otherwise violates or
is reasonably suspected to violate its obligations or terms of this Agreement,
and where such violation or breach is not cured within ten (10) business days
following The Qt Company's written notice thereof.
12.3. Termination for insolvency
Either Party shall have the right to terminate this Agreement immediately upon
written notice in the event that the other Party becomes insolvent, files for
any form of bankruptcy, makes any assignment for the benefit of creditors, has
a receiver, administrative receiver or officer appointed over the whole or a
substantial part of its assets, ceases to conduct business, or an act
equivalent to any of the above occurs under the laws of the jurisdiction of the
other Party.
12.4. Parties' Rights and Duties upon Termination
Upon expiry or termination of the Agreement, Licensee shall cease and shall
cause all Designated Users (including those of its Affiliates' and
Contractors') to cease using the Licensed Software under this Agreement. For
clarity, a Development License of a Designated User or a QA Tools License, and
all rights relating thereto, shall always terminate at the expiry of the
respective Development License Term, even if the Agreement continues to remain
in force.
Upon such termination the Licensee shall destroy or return to The Qt Company
all copies of the Licensed Software and all related materials and will certify
the same by Licensee's duly authorized officer to The Qt Company upon its
request, provided however that Licensee may retain and exploit such copies of
the Licensed Software as it may reasonably require in providing continued
support to Customers.
Except when this Agreement is terminated by The Qt Company due to Licensee's
material breach as set forth in Section 12.2, the Licensee may continue
distribution of Applications and Devices under the terms of this Agreement
despite the termination of this Agreement. In such event the terms hereof will
continue to be applicable and govern any such distribution of Applications and
Devices beyond the expiry or termination of this Agreement. In case of
termination by The Qt Company due to Licensee's material breach, Licensee must
cease any distribution of Applications and Devices at the date of termination
of this Agreement.
Expiry or termination of this Agreement for any reason whatsoever shall not
relieve Licensee of its obligation to pay any License Fees accrued or payable
to The Qt Company prior to the effective date of termination, and Licensee pay
to The Qt Company all such fees within 30 days from the effective date of
termination of this Agreement.
Termination of this Agreement shall not affect any rights of Customers to
continue use of Applications and Devices (and therein incorporated
Redistributables).
12.5. Extension of Rights under Special Circumstances
In the event of The Qt Company choosing not to renew the Development License(s)
or QA Tools Licenses, as set forth in Section 3.1 and 3.5 respectively, and
where such decision of non-renewal is not due to any ongoing breach or alleged
breach (as reasonably determined by The Qt Company) by Licensee of the terms of
this Agreement or any applicable license terms of Open Source Qt, then all
valid and affected Development Licenses and QA Tools licenses possessed by the
Licensee at such date shall be extended to be valid in perpetuity under the
terms of this Agreement and Licensee is entitled to purchase additional
licenses as set forth in Section 10.2.
In the event The Qt Company is declared bankrupt under a final, non-cancellable
decision by relevant court of law, and this Agreement is not, at the date of
expiry of the Development License(s) or QA Tools Licenses, assigned to party,
who has assumed The Qt Company's position as a legitimate licensor of Licensed
Software under this Agreement, then all valid Development Licenses and QA Tools
Licenses possessed by the Licensee at such date of expiry, and which the
Licensee has not notified for expiry, shall be extended to be valid in
perpetuity under the terms of this Agreement.
For clarity, in case of an extension under this Section 12.5, any such
extension shall not apply to The Qt Company's Support obligations, but Support
shall be provided only up until the end of the respective fixed Development
License Term regardless of the extension of relevant Development License or QA
Tools License, unless otherwise agreed between the Parties.
13. GOVERNING LAW AND LEGAL VENUE
In the event this Agreement is in the name of The Qt Company Inc., a Delaware
Corporation, then:
(i) this Agreement shall be construed and interpreted in accordance with
the laws of the State of California, USA, excluding its choice of law
provisions;
(ii) the United Nations Convention on Contracts for the International Sale
of Goods will not apply to this Agreement; and
(iii) any dispute, claim or controversy arising out of or relating to this
Agreement or the breach, termination, enforcement, interpretation or
validity thereof, including the determination of the scope or
applicability of this Agreement to arbitrate, shall be determined by
arbitration in San Francisco, USA, before one arbitrator. The
arbitration shall be administered by JAMS pursuant to JAMS' Streamlined
Arbitration Rules and Procedures. Judgment on the Award may be entered
in any court having jurisdiction. This Section shall not preclude
parties from seeking provisional remedies in aid of arbitration from a
court of appropriate jurisdiction.
In the event this Agreement is in the name of The Qt Company Ltd., a Finnish
Company, then:
(i) this Agreement shall be construed and interpreted in accordance with
the laws of Finland, excluding its choice of law provisions;
(ii) the United Nations Convention on Contracts for the International Sale
of Goods will not apply to this Agreement; and
(iii) any disputes, controversy or claim arising out of or relating to this
Agreement, or the breach, termination or validity thereof shall be
finally settled by arbitration in accordance with the Arbitration Rules
of International Chamber of Commerce. The arbitration tribunal shall
consist of one (1), or if either Party so requires, of three (3),
arbitrators. The award shall be final and binding and enforceable in
any court of competent jurisdiction. The arbitration shall be held in
Helsinki, Finland and the process shall be conducted in the English
language. This Section shall not preclude parties from seeking
provisional remedies in aid of arbitration from a court of appropriate
jurisdiction.
14. GENERAL PROVISIONS
14.1. No Assignment
Except in the case of a merger or sale of substantially all of its corporate
assets, Licensee shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations under this Agreement without the prior written
consent of The Qt Company, which shall not be unreasonably withheld or delayed.
The Qt Company shall be entitled to freely assign or transfer any of its
rights, benefits or obligations under this Agreement.
14.2. No Third-Party Representations
Licensee shall make no representations or warranties concerning the Licensed
Software on behalf of The Qt Company. Any representation or warranty Licensee
makes or purports to make on The Qt Company's behalf shall be void as to
The Qt Company.
14.3. Surviving Sections
Any terms and conditions that by their nature or otherwise reasonably should
survive termination of this Agreement shall so be deemed to survive. Such
sections include especially the following: 1, 2, 6, 7, 9, 11, 12.4, 13 and 14.
14.4. Entire Agreement
This Agreement, the Appendices hereto, the License Certificate and any
applicable quote and Purchase Order accepted by The Qt Company constitute the
complete agreement between the Parties and supersedes all prior or
contemporaneous discussions, representations, and proposals, written or oral,
with respect to the subject matters discussed herein.
In the event of any conflict or inconsistency between this Agreement and any
Purchase Order, the terms of this Agreement will prevail over the terms of the
Purchase Order with respect to such conflict or inconsistency.
Parties specifically acknowledge and agree that this Agreement prevails over
any click-to-accept or similar agreements the Designated Users may need to
accept online upon download of the Licensed Software, as may be required by
The Qt Company's applicable processes relating to Licensed Software.
14.5. Modifications
No modification of this Agreement shall be effective unless contained in a
writing executed by an authorized representative of each Party. No term or
condition contained in Licensee's Purchase Order ("Deviating Terms") shall
apply unless The Qt Company has expressly agreed such Deviating Terms in
writing. Unless and to the extent expressly agreed by The Qt Company, any such
Deviating Terms shall be deemed void and with no legal effect. For clarity,
delivery of the Licensed Software following the receipt of the Purchase Order
including Deviating Terms shall not constitute acceptance of such Deviating
Terms.
14.6. Force Majeure
Except for the payment obligations hereunder, neither Party shall be liable to
the other for any delay or non-performance of its obligations hereunder in the
event and to the extent that such delay or non-performance is due to an event
of act of God, terrorist attack or other similar unforeseeable catastrophic
event that prevents either Party for fulfilling its obligations under this
Agreement and which such Party cannot avoid or circumvent ("Force Majeure
Event"). If the Force Majeure Event results in a delay or non-performance of a
Party for a period of three (3) months or longer, then either Party shall have
the right to terminate this Agreement with immediate effect without any
liability (except for the obligations of payment arising prior to the event of
Force Majeure) towards the other Party.
14.7. Notices
Any notice given by one Party to the other shall be deemed properly given and
deemed received if specifically acknowledged by the receiving Party in writing
or when successfully delivered to the recipient by hand, fax, or special
courier during normal business hours on a business day to the addresses
specified for each Party on the signature page. Each communication and document
made or delivered by one Party to the other Party pursuant to this Agreement
shall be in the English language.
14.8. Export Control
Licensee acknowledges that the Redistributables, as incorporated in
Applications or Devices, may be subject to export control restrictions under
the applicable laws of respective countries. Licensee shall fully comply with
all applicable export license restrictions and requirements as well as with all