D E V M A T E

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Software Licence Agreement

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Last updated: October 18, 2021

Automated Software Testing GmbH (“AST”) (www.automated-software-testing.com) is the legal entity and takes the responsibility as a supplier of several software products (hereinafter referred to as „Software Product“) or services (hereinafter referred to as „Service“). The term “Software Product” includes Documentation unless otherwise specified.

Automated Software Testing renders its services and delivers its products solely (only) based on this terms & conditions. Any additional terms & conditions or general purchasing terms of the contracting party are hereby rejected. Handwritten annotations on the order form are invalid.

By using our Sofware you you agree to be bound by this Software Licence Agreement. If you disagree with any part of the Software Licence Agreement then you do not have permission to use our Software.

This License Agreement (the “Agreement”) is between you and the AST entity that owns the Software that you are accessing or using listed here (“AST” or “we”). If you are agreeing to this Agreement not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or governmental official), then “you” means your entity and you are binding your entity to this Agreement. AST may modify this Agreement from time to time, subject to the terms in Section “Changes to this Agreement” below. 

The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to or use of the Software or (b) the effective date of the first Order referencing this Agreement.

By clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of your Order, or by using or accessing the Software, you indicate your assent to be bound by this Agreement.  If you do not agree to this Agreement, do not use or access the Software.

General

1.1     Warranty

The warranty period for the Software Product is 6 months.

Errors in programs of third parties that Automated Software Testing did not develop, but will affect the Software Product or has simply installed or adapted shall not be covered by the warranty. Costs for eliminating such errors, for example through service packs or hotfixes or configuration effort of the individual manufacturers, will be billed according to Automated Software Testing’s latest price list.  Automated Software Testing cannot ensure that the corresponding manufacturers offer bug fixes. 

1.2 Billing, Payment and Shipment

Payments made by the client are always accounted against the earliest open demands. E-mails of Automated Software Testing are considered as written documents. All prices shall be net prices to be paid at once, plus the legal value added tax. 

The following invoicing regulations and payment terms shall apply, according to the country of the customer and the license type.

Purchased software licenses:

  • Invoicing is done immediately after order reception, with net due upon receipt of invoice.
  • Delivery of licenses is done after receiving payment (except for trial licenses).

Subscription licenses:

  • For License subscriptions, Payments are withdrawn monthly

1.3 Liability

Automated Software Testing is liable for damage caused as follows:

  • For culpable damage caused to the customer’s life and limb and health
  • If Automated Software Testing, its representatives, or agent are found to be culpable of intent or flagrant gross negligence
  • For claims under the product liability law, in so far as they are related to business customers
  • Any other legally binding statutory claims.

This limited liability is final. It is applicable to all claims for damages, regardless of their legal bases, particularly regarding pre-contractual or
auxiliary contractual claims.

In no case will the liability exceed the purchase price of the software or the value of Automated Software Testing’s liability insurance.

In the event Automated Software Testing is found to be culpable for the loss of data, Automated Software Testing’s liability is limited to the expenses for the copying of the back-up copies and for the reconstruction of data which would be lost also in case of regularly back-ups. The customer shall be responsible for making back-up copies. The customer is obliged to make back-up copies of their data at
least once a day. Failure to comply with this obligation is deemed to be contributory negligence.

1.4 Confidentiality and Data Protection

The parties of the contract mutually agree to treat all information and documentation as well as materials (in particular software and stored data) with no expiration as confidential or secret, as long and to the extent that it is not proven public knowledge. Such confidential information, which is characterized by a contractor as confidential or secret, must also be treated as a business or trade secret. Also, the contractual parties guarantee that all their employees, representatives, or agents that they engage to fulfill this contract shall treat such information as confidential.

Excluded by this regulation is the legitimate request for information by official agencies, such as supervisory authorities, law enforcement agencies or courts.

In accordance with this contract, Automated Software Testing will process relevant personal data in strict accordance with the Austrian federal data protection act.

The regulations in this paragraph shall remain valid even after the expiration of this contract.

1.5 Customer responsibility

The responsibility for the selection, installation and use of the Software Product and the intended problem solving through its use lies with the Customer, unless Automated Software Testing has provided non-expert advice. Customer also has responsibility for the selection, use, and maintenance of the software-related systems, other programs and data, and the services required to do so, and provides the organization appropriate to the use of the Software Product.

2 Software Licensing

2.1 Specific License Agreement

The number of licensed users or other individual data is specified in the Order Form.

If no specific agreement is specified, licensed per user within one legal entity is the default. The number of all users using the particular functions either in part or in whole is relevant.

2.2 Accounts and Authorized Users

Account Registration:

You must register for an account with us in order to place Orders or access or receive Software. Your registration information must be accurate, current and complete.
You must keep your registration current so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your account, including Orders made or Features enabled (which may incur additional fees). If you order Software through a Reseller, then you are solely responsible for (i) any access by Reseller to your account and (ii) any related rights or obligations in your applicable agreement with the Reseller

Authorized Users:

Only Authorized Users may access and use the Software.  Some Software may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User.  You are responsible for compliance with this Agreement by all Authorized Users, including what Authorized Users do with your data, and for all fees incurred by Authorized Users (or from adding Authorized
Users).  All use of Software must be solely for the benefit of you or your Affiliates and must be within the Scope of Use.
  

2.3 Right of Use

Your License Rights:

In return for the payment of the license fee and subject to the terms and conditions of this Agreement, AST grants you a non-exclusive, non-sublicensable and non-transferable license to install and use the Software within your legal entity during the applicable License Term for your own business purposes, in accordance with this Agreement, your applicable Scope of Use, the Documentation
and all Laws.

You are entitled to the extent necessary to make backup copies for internal use. You are obliged to protect the software and all documentation against unauthorized copying.

All other rights, in particular the property, the industrial rights and the copyright to the software and all rights of use not expressly assigned, remain with Automated Software Testing or the holder of the intellectual property rights to the software.

Restrictions:

Except as otherwise expressly permitted in this Agreement, you will not:

(a) reproduce, modify, adapt or create derivative works of any part of the Software;

(b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party;

(c) use the Software for the benefit of any third party;

(d) incorporate the Software into a product or service you provide to a third party;

(e) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use;

(f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us);

(g) remove or obscure any proprietary or other notices contained in the Software;

(h) use the Software for competitive analysis or to build competitive products;

(i) publicly disseminate information regarding the performance of the Software; or

(j) encourage or assist any third party to do any of the foregoing.

Number of Instances:

Unless otherwise specified in your Order, for each Software license that you purchase, you may install one (1) production instance of the Software on systems owned or operated by you or one of your Authorized Users.

We may also make available “developer” or “test” licenses free of charge for certain of our Software offerings to allow you to deploy and test non-production instances, such as for staging or QA purposes. Please contact us to get details for non-production licenses.

Product-Specific Terms:

Some Software may be subject to additional terms specific to that Software as set forth in the Product-Specific Terms.  By accessing or using a product covered by the Product-Specific Terms, you agree to the Product-Specific Terms.

Your Modifications:

Subject to the terms and conditions of this Agreement (including  Section “Combining the Products with Open Source Software” of Third Party Code in AST Products), for any elements of the Software provided by AST in source code form and to the extent permitted in the Documentation, you may modify such source code solely for purposes of developing bug fixes, customizations and additional features for the Software.
Any modified source code or Documentation constitutes “Your Modifications”. You may use Your Modifications solely in support of your permitted use of the Software (and only with your own instances of the Software), but you may not distribute the code to Your Modifications to any third party. Notwithstanding anything in this Agreement to the contrary, AST has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Software.

Attribution:

In any use of the Software, you must not remove, obscure, or alter in any way the following attribution to AST on all user interfaces to the Software:
“Powered by AST” or “Copyright by AST” or something similar, which must in every case include a hyperlink to http://www.automated-software-tetsing.com, and which must be in the same format as delivered in the Software.

System Requirements:

You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation.  AST will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by AST.

Indemnification by You:

You will defend, indemnify and hold harmless AST from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against AST (a) by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications of the Software) or your breach of Section “Your Modifications”; (b) by a third party related to your Customer Materials, as defined in Section “Additional Service” or (c) by a third party relating to any non-AST content or data used by you or your Users in connection with the Software. 

This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to
respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of AST at your expense.

2.4 Software Subscription

If the Software Product is subscribed, the software subscription licenses can then be used as specified in the subscription license document.

The minimum duration of the subscription is 12 months.

Billing is done monthly in advance.

After the minimum duration, the subscription and the individual amount of subscription seats can be terminated at any time by giving 1 month’s written notice from the end of the month. 

Termination letters or E-Mails are valid forms of correspondence.

In the instance a license subscription is cancelled, the customer is obligated to settle the remaining balance of the subscription contract period, one month after the cancellation has been received. The customer will then receive a license which is valid until the end of the contract period.

2.5 Delivery and Installation of Software

Automated Software Testing shall provide the customer with the software as compiled code or as a web-service (Software as a Service) depending on the specific software product.

Software Product may be installed by the customer itself or by Automated Software Testing.

AST Deliverables: AST will retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments that AST provides in connection with any Additional Services (“AST Deliverables”). You may use any AST Deliverables provided to you only in connection with the Software, subject to the same usage rights and restrictions as for the Software.  For clarity, AST Deliverables are not considered Software, and any Software (including any New Release) is not considered an AST Deliverable.

Customer Materials:  You
agree to provide AST with reasonable access to your materials, systems, personnel or other resources (including your instances of the Software) as
reasonably necessary for AST’s provision of Additional Services (“Customer Materials”).  If you do not provide AST with timely access to Customer Materials, AST’s performance of Additional Services will be excused until you do so. You retain your rights in your Customer Materials, subject to AST’s ownership of any underlying Software, AST Deliverables or other AST Technology.  ATS will use Customer Materials solely for purposes of performing the Additional Services.  You represent and warrant that you have all necessary rights in Customer Materials to provide them to AST for such purposes.

Training Not Covered
Your purchase, and our provision, of Training is subject to our Training
Terms and Policies, which is a separate agreement.

2.6 Activation

If the Software Product is protected by software activation, depending on the type of Software Product, the customer shall receive the software together with an activation key or the Software Product has to establish a connection to an activation server of Automated Software Testing, which enables running the software in the specified environment only.

If the customer would like to use the software in another environment, Automated Software Testing will provide the customer with a new activation key based on the condition that the previous installation is deactivated. The changeover is
charged as an additional fee.

2.7 License Certifications and Audits

At our request, you agree to provide a signed certification that you are using all Software pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Software (including that of your Authorized Users). We will provide you with at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to AST at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third-party licensors or assign the audit rights specified in this Section to such licensors. 

3 Maintenance Contract

With the purchase respectively subscription of a software license a maintenance contract is concluded between Automated Software Testing and the customer. 

3.1 Scope of Maintenance

The maintenance contract entitles the customer to free upgrades, updates, hotfixes, and technical support for settings the configuration of the software during the period of the contract.

End-User support is not included in the maintenance contract. Should the customer request additional training for the general usage of the software, the services are delivered according to the terms & conditions for professional services and accruing costs will be charged according to Automated Software Testing’s latest price.

3.2 Software Updates

The Software Product is periodically optimized and developed. In the scope of the maintenance contract or a valid subscription, the customer is entitled to all published major releases, upgrades, updates and hotfixes for all licensed components. In this context, upgrade relates to a new product version with extended functionality.

Updates include small to medium extended functions and possible bug fixes.

Hotfixes are updates that eliminate specific critical errors of the product.

3.3 Definition of Support Level

End-User Support: questions of end users regarding the general usage of the software.

Technical Support: support regarding installation and configuration of the solution as well as solving technical issues.

3.4 Support

The maintenance contract entitles the customer technical support via remote support for ensuring the installation and the correct functioning of the software.

The customer should enter new support cases to the email address support@devmate.software.

In particular, an error exists if the program does not fulfill the functions stated in the manual, produces wrong results or shows errors in a repeatable
manner so that the use of the program is impossible or considerably limited.

The removal of errors shall either be made by hotfixes, updates or personal support by a Automated Software Testing employee. Provided this is acceptable to the customer, Automated Software Testing may restrict itself to provide information on how to remove the error. In this case, the customer is obliged to carry out the measures himself. This applies in particular for installing updates and hotfixes. The measure to be used depends on the error and the way to remove it.

Automated Software Testing employees are not allowed to change the customers system by themselves by using input devices.

If Automated Software Testing provides support to the customers’ issues that was caused by the customer, the customer would be charged an additional fee according to the latest Automated Software Testing price rate. This also applies retro actively.

3.5 Boundaries and Conditions

  • In order to get support for troubleshooting, the customer’s software must be updated to the latest available software version of the Software Product at the time of the support request.
  • The scope of the maintenance contract includes only the Software Product program and modules.
  • Support services only include debugging however, not the installation procedure, training on the product, or technical / organizational consulting.
  • Support requests are to be exclusively made by two contact persons specified by the customer.
  • Should failures occur during the use or the operation of the software, then the customer shall inform Automated Software Testing only by a predetermined employee or use an online support system provided by Automated Software Testing.
  • The customer shall provide all necessary information for analysis of the malfunction.
  • The verification and compliance of the underlying systems is provided by the customer.
  • In the event that the customer wants a customization of the Software Product he has to bear the full cost of programming and higher maintenance.

3.6     Technical deployment of support

If necessary, Automated Software Testing uses a remote management software for remote support services. The use of these programs is covered by this contract.  The customer shall care for all technical requirements for the use these programs (e.g. such as opening the
correct firewall ports).

Should the customer request the use of another remote maintenance software, they shall bear the costs for setting up the software at Automated Software Testing and for operating the software at Automated Software Testing if necessary. In the event that there is no remote support possible with a customer, the customer shall bear the travel costs and the travel times.

All phone calls and online sessions can be recorded for quality assurance purposes.

3.7     Service Hours and Reaction

The Service Hours of Automated Software Testing are

  • 9:00 – 12:00 and 13:00 – 16:00 on Monday to Thursday and
  • 9:00 – 12:00 on Friday (Central European Time Zone).

Automated Software Testing guarantees reaction times within 3 working days after the notification of the malfunction. 

3.8     Obligations of the Customer

The following conditions must be guaranteed for the contractual support of the Software Product programs:

  • Fully functioning hardware that is suitable for the Software Product
  • Fully functioning operating system
  • Fully functioning libraies or basic systems needed
  • Implementation of provided latest updates
  • A running network
  • A running connection to the internet and activation server
  • Compliance with the current individual system requirements for the Software Product

Furthermore, the customer shall collaborate during the debugging procedure within the normal limits; in particular providing information and necessary computer and employee time. 

3.9     Maintenance Contract for Subscription Licenses

The maintenance contract is included in the monthly subscription price.

The maintenance contract included with the subscription licenses expires when the subscription ends. 

4 Payment Conditions

Payment:

You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order.  If a purchase order number is required in order for an invoice to be paid, then you must provide such purchase order number to AST by emailing the purchase order number to info@automated-software-testing.com. 

For Additional Services provided at any non-AST location, unless otherwise specified in your Order, you will reimburse AST for its pre-approved travel, lodging and meal expenses, which AST may charge as incurred.  Other than as expressly set forth in Section “Return Policy” and Section “IP Indemnification by AST”, all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional users, expenses and unpaid fees, as applicable.

Taxes:

Your fees under this Agreement exclude any taxes or duties payable in respect of the Software in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by AST, you must pay to AST the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to AST any such exemption information, and AST will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

Withholding Taxes:

You will pay all fees net of any applicable withholding taxes. You and AST will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If AST qualifies for a tax exemption, or a reduced treaty withholding rate, AST will provide you with reasonable
documentary proof. You will provide AST reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.
 

Future Functionality; Seperate Purchases

You acknowledge that the Software and Additional Services referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Software and Additional Services are separate and not contingent on each other, even if listed on the same Order).  You agree that your purchases are not contingent on the delivery of any future functionality
or features (including future availability of any Software beyond the current License Term or any New Releases), or dependent on any oral or written public comments made by AST regarding future functionality or features.
 

No-Charge Software:

We may offer certain Software (including some AST Apps or Software) to you at no charge, including free accounts, trial use, and Beta Versions as defined below (collectively, “No-Charge Software”). Your use of No-Charge Software is subject to any additional terms that we specify and is only permitted during the License Term we designate (or, if not designated, until terminated in accordance with this Agreement). Except as otherwise set forth in this Section, the terms and conditions of this Agreement governing Software, including Section “Restrictions”, fully apply to No-Charge Software.  We may terminate your right to use No-Charge Software at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta versions of Software, and any pre-release and beta features within generally available Software, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Software. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to use Beta Versions, but the Beta Versions will still remain subject to this Section (“No-Charge Software”) . All information regarding the characteristics, features or performance of any No-Charge Software (including Beta Versions) constitutes AST’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Software, including any Support and Maintenance, warranty, and indemnity obligations.  NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, AST’S MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE SOFTWARE WILL BE EUR 100,-. 

Miscellaneous

5.1 Offers

Offers have a validity period of 10 days after offer date.

5.2 Reference and Publicity Rights

You grant AST the right for mentioning the customer’s company name and company logo for marketing purposes.

We may identify you as an AST customer in our promotional materials. We will promptly stop doing so upon your request sent to info@automated-software-testing.com.

5.3 Ownership and Feedback

The Software is made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. AST and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to AST Technology (including the Software).  From time to time, you may choose to submit Feedback to us. AST may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits AST’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise. 

5.4 Confidentiality

Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing
Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any AST Technology and any performance information relating to the Software will be deemed Confidential Information of AST without any marking or further
designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third
parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.  The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section and that the Receiving Party remains responsible for compliance by them with the terms of this Section. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges
that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. 
 

5.5 Term and Termination

Term

This Agreement is effective as of the Effective Date and continues until expiration of all License Terms, unless earlier terminated as set forth herein.

Termination for Cause

Either party may terminate this Agreement (including all related Orders) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). 

Termination for Convenience

You may choose to stop using the Software and terminate this Agreement (including all Orders) at any time for any reason upon written notice to AST, but upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current License Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable. 

Effects of Termination

Upon any expiration or termination of this Agreement, your license to the Software terminates (even if the License Term is identified as “perpetual” or if no expiration date is specified in your Order) and you must cease using and delete (or at our request, return) all Software and Confidential Information or other materials of AST in your possession, including on any third-party systems operated on your behalf.  You will certify such deletion upon our request. If this Agreement is terminated by you in accordance with Section “Termination for Cause”, AST will refund you any prepaid Software fees covering the remainder of the then-current License Term after the effective date of termination. If this Agreement is terminated by AST in accordance with Section “Termination for Cause”, you will pay any unpaid fees covering the remainder of the then-current License Term after the effective date of termination. In no event will termination relieve you of its obligation to pay any fees payable to AST for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. 

Survival

The following Sections will survive any termination or expiration of this Agreement: “Restrictions”, “Indemnification by You”, “Third Party Products”, “Payment”, “Taxes”, “No-Charge Software”, “License Certifications and Audits”, “Ownership and Feedback”, “Confidentiality”, “Term and Termination”, “Warranty Disclaimer”, “Limitations of Liability”, “IP Indemnification by AST” (but solely with respect to claims arising from your use of the Software during the License Term), “Dispute Resolution”, and “General Provisions”. 

5.6 Warranties and Disclaimer

General Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement.  If you are an entity,
you represent and warrant that this Agreement and each Order is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Agreement.
 

Virus Warranty

AST further represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to you, will be free of any viruses, malware, or other harmful code.  For any breach of the foregoing warranty, your sole and exclusive remedy, and AST’s sole obligation, is to provide a replacement copy of the Software promptly upon notice.

Warranty Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN SECTION “GENERAL WARRANTIES” AND “VIRUS WARRANTY”, ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND AST AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. AST WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF AST. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER AST NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN SECTION “VIRUS WARRANTY”, THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. 

5.7 Limitations of Liability

Consequential Damages Waiver

EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 

Liability Cap

EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. 

Excluded Claims

“Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in this Agreement, and (3) your breach of Section “Restrictions”. 

Nature of Claims and Failure of Essential Purpose

The parties agree that the waivers and limitations specified in this Section “Limitations of Liability” apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. 

IP Indemnification by AST

We will defend you against any claim brought against you by a third party alleging that the Software, when used as authorized under this Agreement, infringes a patent right granted in the European Union or a member nation of the European Union or a copyright registered in such a jurisdiction (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by AST (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Software is (or in our opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right or license for your continued use of the Software in accordance with this Agreement; (ii) substitute substantially functionally similar Software; or (iii) terminate your right to continue using the Software and refund any license fees pre-paid by you for use of the Software for the terminated portion of the applicable License Term or, in the case of any “perpetual” licenses, the license fee paid by you as reduced to reflect a three (3) year straight-line depreciation from the license purchase date. AST’s indemnification obligations above do not apply: (1) if the total aggregate fees received by AST with respect to your license to Software in the twelve (12) month period immediately preceding the Claim is less than EUR 50.000,-; (2) if the Software is modified by any party other than AST, but solely to the extent the alleged infringement is caused by such modification; (3) if the Software is used in combination with any non-AST product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Software; (5) to any Claim arising as a result of (y) circumstances covered by your indemnification obligations in Section “Indemnification by You” or (z) any third-party deliverables or components contained with the Software; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a Claim without AST’s prior written consent. THIS SECTION STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SOFTWARE OR OTHER ITEMS PROVIDED BY AST UNDER THIS AGREEMENT. 

5.8 Dispute Resolution

Informal Resolution

In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section “Governing Law; Jurisdiction”. All negotiations pursuant to this Section “Informal Resolution” will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions. 

Injunctive Relief; Enforcement

Notwithstanding the provisions of Section “Informal Resolution” and Section “Governing Law; Jurisdiction”, nothing in this Agreement will prevent AST from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction. 

5.9 Modifications, Supplementary

Amendments to this agreement must be made in signed writing. Verbal agreements are not seen as valid. 

If any provision or provisions of this contract shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. In the place of the invalid or unenforceable provision, a reasonable provision shall apply which insofar as legally possible comes closest to fulfilling the original intention of the parties to the contract had they considered this point upon conclusion of the contract. The preceding provisions apply accordingly in the case that the contract is incomplete. 

5.10 Changes to this Agreement

Modifications Generally

We may modify the terms and conditions of this Agreement (including AST Policies) from time to time, with notice given to you by email, through the Software or through our website.  Together with notice, we will specify the effective date of the modifications. 

No-Charge Software

You must accept the modifications to continue using the No-Charge Software.  If you object to the modifications, your exclusive remedy is to cease using the No-Charge Software. 

Paid Licenses 

Typically, when we make modifications to the main body of this Agreement (excluding the AST Policies), the modifications will take effect at the next renewal of your License Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section “License Term and Renewals”. In some cases – e.g., to address compliance with Laws, or as necessary for new features – we may specify that such modifications become effective during your then-current License Term. If the effective date of such modifications is during your then-current License Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Software for the terminated portion of the applicable License Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications.  For the avoidance of
doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.
 

AST Policies

Our products and business are constantly evolving, and we may modify the AST Policies from time to time, including during your then-current License Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to the AST Policies that, considered as a whole, would substantially diminish our obligations during your then-current License Term. Modifications to the AST Policies will take effect automatically as of the effective date specified for the updated policies.

5.11 General Provisions

Notices

Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to the address in the impressum at our website www.automated-software-testing.com . Your notices to us will be deemed given upon our receipt.

Force Majeure

Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural
disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

Assignment

You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting
securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement. Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement.  Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.

Entire Agreement

This Agreement is the entire agreement between you and AST relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and AST with respect to the Software or any other subject matter covered by this Agreement.  No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. 

Conflicts

In event of any conflict between the main body of this Agreement and either the AST Policies or Product-Specific Terms, the AST Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter. 

Waivers; Modifications

No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section “Changes to this Agreement”, any amendments or modifications to this Agreement must be executed in writing by the authorized representatives of AST and you.

Interpretation

As used herein, “including” (and its variants) means “including without limitation” (and its variants).  Headings are for convenience only.  If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect. 

Independent Contractors

The parties are independent contractors. This Agreement will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party. 

5.12 Governing Law; Jurisdiction

This Agreement will be governed by and construed in accordance with the applicable laws of Austria, without giving effect to the principles relating to conflicts of laws.

Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in the court in Linz, Austria, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Linz, Austria, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.

Exclusion of UN Convention

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. 

Defintions

Certain capitalized terms are defined in this Section, and others are defined contextually in this Agreement.

“Additional Services” means Technical Account Manager services, Support and Maintenance or other services related to the Software provided to you by AST, as identified in an Order.

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

“AST Policies” means AST’s Acceptable Use Policy, Privacy Policy, Online Community Platforms Terms of Use, Support Policy, Enterprise Support and Services Policy, terms for Third Party Code in AST Products, and (unless otherwise specified) any other policies or terms referenced in this Agreement.

 “AST Technology” means the Software (including all No-Charge Software), AST Deliverables, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

“Authorized Users” means the specific individuals whom you designate to use the applicable Software and for whom you have paid the required fees.  Authorized Users may be your or your Affiliates’ employees, representatives, consultants, contractors, agents or other third parties who are acting for your or your Affiliates’ benefit or on your or your Affiliates’ behalf. 

“Documentation” means our standard published documentation for the Software, currently located here.

“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Software, Support and Maintenance or Additional Services. 

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data. 

“License Term” means your permitted license term for the Software, as set forth in an Order.

“New Releases” means any bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that AST makes available to you as part of Support and Maintenance. 

“Order” means AST’s applicable ordering documentation or other purchase flow referencing this Agreement.  Orders may include purchases of Software licenses, Support and Maintenance, Additional Services, increased or upgraded Scope of Use or renewals.

“Product-Specific Terms” means additional terms that apply to certain Software and Additional Services, currently located here.  

“Scope of Use” means your authorized scope of use for the Software as specified in the applicable Order, which may include: (a) number and type of Authorized Users, (b) numbers of licenses, copies or instances, or (c) entity, division, business unit, website, field of use or other restrictions or billable units.  

“Software” means AST’s commercially available software products, including mobile applications of such products.  Your Order
will specify the Software that you may use.
 

“Support and Maintenance” means AST’s support and maintenance services for the Software, as further described in the AST Support Policy and Services Policy (if applicable).  Your level of Support and Maintenance will be specified in your Order.

“Training” means AST-provided training and certification services.

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