(a) Ramboll has developed certain software applications which it makes available to subscribers.
(b) The Customer wishes to use Ramboll's software in its business operations.
(c) Ramboll has agreed to provide, and the Customer has agreed to take and pay for Ramboll's software and where applicable related services subject to the terms and conditions of this Agreement.
Interpretation1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement means the Supply Agreement and these General Terms of Software Supply together. In the event of any conflict, these General Terms of Software Supply prevail.
Applicable Law: means the applicable laws governing this Agreement, as set out in the Supply Agreement
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2(d).
Business Day: a day other than a Saturday, Sunday or public holiday in the country of the Applicable Law.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.5, including but not limited to all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Ramboll’s Confidential Information includes, but is not limited to, the Services and all Software (including APIs, software tools, etc.), equipment, processes and facilities utilised by or on behalf of Ramboll to provide the User Subscriptions and the Services, including but not limited to all source code, development plans, screen displays and documentation related thereto.
Customer Data: the data inputted by the Customer, Authorised Users, or Ramboll on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
Data Protection Legislation: the data protection legislation of the governing law of this Agreement, and where applicable the EU-US Privacy Shield, any other European Union legislation (including without implying limitation the General Data Protection Regulation ((EU) 2016/679); the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) relating to personal data and all other applicable global legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
Documentation: shall mean the user and administrator manuals for the Software, as made available by Ramboll from time to time at the location or in the manner set out in the relevant Supply Agreement.
Effective Date: if not the date of this Agreement, the date specified in the Supply Agreement
Emergency Maintenance shall mean unscheduled periods of time that Ramboll temporarily interrupts the Services in order to patch or fix security issues or any other major issues that have been discovered
Initial Subscription Term: the initial term of this Agreement as set out in the Supply Agreement
Intellectual Property Rights shall mean all industrial rights and copyrights, as well as other intangible rights, such as copy rights, trademarks, trade names, patents, inventions, utility models, domain names, software, source codes, databases, catalogues, along with other registered and unregistered exclusive rights.
Licensed Use shall mean:
a) in respect of Software which is not accessed remotely and is instead directly installed on the Customer’s system (for example, a downloadable executable file), only the acts of storing, loading, displaying, running, transmitting and operating it which are necessary or reasonably incidental to the use of that Software contemplated by the applicable Documentation;
b) in respect of Software which is hosted remotely (i.e. Software-as-a-Service or “SaaS”), only the acts of accessing it, interacting with it and operating it, across a network, which are necessary or reasonably incidental to the use of that Software contemplated by the applicable Documentation, and which are permitted by the technical measures and restrictions in operation in respect of that Software or its underlying platforms and technologies; and
c) in respect of Services, only those acts of copying, distribution and communication that are necessary or reasonably incidental to the Use of the corresponding Software.
Major Version shall mean a version of the Software introducing significant new functionality (excluding a New Module) generally made available by Ramboll, typically designated by the first digit in the version number.
Normal Business Hours: the hours specified in the Supply Agreement;
New Module shall mean an optional add-on for the Software, for which an additional or increased Subscription Fee may be payable, as determined in Ramboll’s sole discretion.
Open-Source Software shall mean open-source software as defined by the Open Source Initiative (http://opensource.org) and/or free software as defined by the Free Software Foundation (http://www.fsf.org), in each case that is distributed with the Software.
Renewal Period: the period described in clause 12.1.
Services: shall mean professional consulting or other services pertaining to the Software, specified in the Supply Agreement, including the service-related deliverables, but not the Software itself.
Scheduled Outages: shall mean periods of time scheduled in advance that Ramboll temporarily interrupts the Services for updates, upgrades, maintenance or for any other identified reason or purpose including an established framework for scheduling and managing such outages
Software shall mean the version of Ramboll’s off-the-shelf software specified in the Supply Agreement, including Major Versions. For the purposes of this Agreement, Software shall be construed widely to include the Documentation;
Specification shall mean:
(a) in the case of Software, the Software specification set out in or referred to in the Supply Agreement; or
(b) in the case of a deliverable under the Services, the description of that deliverable set out in or referred to in the Supply Agreement under “Services”.
Subscription Fees: the subscription fees payable by the Customer to Ramboll for the User Subscriptions, as set out in the Supply Agreement.
Subscription Term: has the meaning given in clause 12.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Supply Agreement shall mean the Agreement for the Services and supply of the Software concluded between Ramboll and the Customer which references or attaches these General Terms.
Support Services Policy: Ramboll's policy for providing support in relation to the Services as described in the Supply Agreement or as may be notified to the Customer from time to time.
System Requirements shall mean the minimum system requirements for the Software as set out in or referred to in the Supply Agreement.
Territory: If not worldwide, the geographical limits set out in the Supply Agreement
Third Party Data shall mean data sourced from a third party that is distributed with or otherwise used by the Software.
User Subscriptions: the user subscriptions purchased by the Customer which entitle Authorised Users to access and use the Software and the Services, the total number described in the Supply Agreement.
Warranty Non-Conformance has the meaning given to it in clause 10.1.
Warranty Period: means the period of time for which the warranty set out in clause 10.1 remains effective as set out in the Supply Agreement.
2.1 Subject to the Customer purchasing the User Subscriptions, Ramboll hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Software during the Subscription Term solely for the Customer's internal business operations within the Territory for the Licensed Use in accordance with the rights and obligations set out in this Agreement.
2.2 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Software shall not exceed the number of User Subscriptions stated in the Supply Agreement;
(b) it will not allow any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Software;
(c) each Authorised User shall keep a secure password for his use of the Software; and
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to Ramboll within 10 Business Days of Ramboll's written request at any time or times;
2.3 The Customer is entirely responsible for any and all activities which occur related to the Software under its User Subscriptions and its corresponding Authorised Users, and for any and all activities of its employees, agents, representatives, and clients, whether or not such employees, agents, representatives, and clients are designated to use the Software.
2.4 The Customer shall use the Software solely for its internal business use and shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by Agreement between the parties and except to the extent expressly permitted under this Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, disassemble the Software or otherwise attempt to discover the source code to the Software or any components thereof, nor permit any third party to do so. The Customer may not reproduce or copy the Software, in whole or in part.
(b) access all or any part of the Software in order to build a product or service which competes with the Software; or
(c) subject to clause 18.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party except the Authorised Users, or
(d) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 2; or
(e) introduce or permit the introduction of, any virus or vulnerability into Ramboll's network and information systems;
(f) use the Software to harass, threaten, or cause damage or injury to any person or property;
(g) use the Software to publish, send, or store any material that is infringing, false, defamatory, obscene, or otherwise illegal or tortious or that violates privacy rights;
(h) send or store malicious code;
(i) circumvent or attempt to circumvent any technical measures or restrictions controlling access to or use of the Software, or gain or attempt to gain any greater level of access to the Software than is permitted by this Agreement
(j) interfere with or disrupt the integrity or performance of the Software or the data contained in it;
(k) attempt to gain unauthorised access to the Software or its related systems or networks;
(l) perform or disclose any benchmarking, availability, or performance testing of the Services; and
(m) use any device, software, or routine or attempt to interfere with the proper functioning of the Software
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify Ramboll.
2.6 The Customer agrees that it shall not use or permit to be used the Software for any time critical or mission critical or legal functions usage. No warranty is provided as to the accuracy of the information generated by the Software. The Customer shall not remove alter or obscure proprietary or trademark notices on any screens, data or reports generated by the Software.
2.7 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary, affiliate or holding company of the Customer.
Additional user subscriptions
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in Error! Reference source not found. Supply Agreement and Ramboll shall grant access to the Software to such additional Authorised Users in accordance with the provisions of this Agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Ramboll in writing. Ramboll shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where Ramboll approves the request, Ramboll shall activate the additional User Subscriptions within 5 days of its approval of the Customer's request.
3.3 If Ramboll approves the Customer's request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of Ramboll's invoice, pay to Ramboll the relevant fees for such additional User Subscriptions as set out in the Supply Agreement and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Ramboll for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 Ramboll shall, during the Subscription Term, provide the Software and the Services to the Customer on and subject to the terms of this Agreement, including the delivery method stated in the Supply Agreement.
4.2 If specified in the Supply Agreement, Ramboll will provide the Customer with Ramboll's standard customer support services during Normal Business Hours in accordance with Ramboll's Support Services Policy in effect at the time that the Services are provided. Ramboll may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at Ramboll's then current rates.
4.3 Ramboll shall use reasonable efforts during Normal Business Hours (taking into account the availability of personnel with a technical knowledge of the Software):
(i) to remedy any Warranty Non-Conformance outside the Warranty Period; or
(ii) respond to any reasonable queries from the Customer’s administrator users, provided that (a) those users have appropriate experience with the Software; and (b) such query is not addressed in the Documentation.
4.4 Except where the Software has been customised (whether as Services or otherwise), the Customer may request that Ramboll updates the Software to the latest Major Version. Where it does so, Ramboll shall so do so as soon as reasonably practicable, taking into account the volume of requests it has received and Ramboll personnel available to do so. Unless otherwise agreed by the parties in writing, the User Subscriptions shall not include any New Modules to the applicable Software made available by Ramboll to its customers for separate fees unless purchased under a separate written agreement.
4.5 The Third Party Data which is made accessible to the Customer through the Software is licensed to the Customer on the terms offered by the applicable third party provider. The Customer acknowledges and agrees that:
(i) where it is permitted for Ramboll to grant the Customer a sub-licence to Open Source Software, it does so on the terms of the original licence as provided in the included README file; and
(ii) where it is not possible for Ramboll to grant the Customer a sub-licence to Open Source Software, that Open Source Software is licensed directly to the Customer by its vendor(s).
Customer data and Data Privacy
5.1 The Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Customer Data, and for obtaining, pursuant to law or regulation, consents from parties that provided the Customer with any of the Customer Data, which will be obtained, used, and disclosed by Ramboll for its required purposes. Company is responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from the Customer Data, including any viruses, disabling devices, trojan horses, worms, or other harmful programming routines contained in the Customer Data, or from the Customer’s use of the Software in a manner that is inconsistent with the terms of this Agreement. The Customer acknowledges and agrees that Ramboll shall have the right, at its sole discretion, to remove any Customer Data from the Software with or without notice, including, but not limited to (i) material that infringes the intellectual property rights of third parties, and (ii) malware or material that violates any applicable law.
5.2 The Customer acknowledges that Ramboll is not responsible for backing up or storing any Customer Data or resulting data generated by use of the Software. The Customer shall be solely responsible for backup and storage or any such data.
5.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
5.5 The Customer retains all ownership and intellectual property rights in and to the electronic data or information submitted by the Customer to the Services. As between the Customer and Ramboll, the Company shall also own all the results in all reports including Customer Data generated by the Customer utilising the Software provided, however, that Ramboll retains ownership of the templates and the technology delivering the reports derived through the use of the Software. The Customer grants Ramboll a worldwide, irrevocable, perpetual non-exclusive licence to host, use, process, display, and transmit the Customer Data to provide the Software pursuant to and in accordance with this Agreement and to use the Customer Data internally for improving both the Software and for any purpose connected with Ramboll’s business. Ramboll shall not release any Customer Data to the public, unless previously agreed to by the Customer in writing.
The Customer shall:
(a) provide Ramboll with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by Ramboll; in order to provide the Software, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Ramboll may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Software in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Ramboll, its contractors and agents to perform their obligations under this Agreement that are otherwise not already held by Ramboll;
(f) ensure that its network and systems comply with the relevant specifications provided by Ramboll from time to time;
(g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Ramboll's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet;
(h) designate in writing no more than two (2) individuals who shall have the sole authority to serve as points of contact between the Customer and Ramboll;
(i) be responsible for purchasing, obtaining, managing, and maintaining access to the bandwidth and internet connectivity for all of its Authorised Users to access the Software as contemplated hereunder;
(j) complying with any of Ramboll’s reasonable policies and procedures, as Ramboll may, from time to time, reasonably adopt;
(k) be responsible for its actions, products, and services, and the content posted on or transmitted through the Software; and
(l) training the Authorised Users on proper use of the Software and treatment of Customer Data.
The Customer is further responsible for providing or obtaining the hardware at its location with which to access the Software, as contemplated hereunder. The Customer assumes full responsibility for the proper operations of any of its hardware and software, and under no circumstances shall Ramboll be responsible for any failures of the Customer owned and/or operated hardware/software. Ramboll shall not be responsible for, and may charge its then-current hourly rates for, services required as a result of the Customer’s acts or omissions, modifications to or misuse of the Software.
Charges and payment
7.1 The Customer shall pay the Subscription Fees to Ramboll for the User Subscriptions in accordance with this clause 7 and the Supply Agreement.
7.2 The Customer shall on the Effective Date provide to Ramboll valid, up-to-date approved purchase order information acceptable to Ramboll and any other relevant valid, up-to-date and complete contact and billing details. Ramboll shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 12.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period, and the Customer shall pay each invoice within 30 days after the date of such invoice.
7.3 If Ramboll has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Ramboll:
(a) Ramboll may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Software and Ramboll shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of the central bank of the country prescribed by the Applicable Law, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.4 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in the currency defined in the Supply Agreement;
(b) are, subject to clause 11.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Ramboll's invoice(s) at the appropriate rate. Subscription Fees do not include applicable taxes. The Customer agrees to bear and be responsible for the payment of all taxes, except for taxes based upon Ramboll’s income, including but not limited to, withholding, all sales, use, rental receipt, personal property, customs duties or levies or other taxes, which may be levied or assessed in connection with this Agreement. The Customer shall pay such tax when due or reimburse Ramboll as Ramboll may request. If any tax is required to be paid by Ramboll, the full amount of such tax, including any interest and penalties, will be billed to the Customer separately, whether or not this Agreement is then in effect, and promptly paid by the Customer.
7.5 Ramboll shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3, the support fees payable pursuant to clause 4.2 at the start of each Renewal Period upon 90 days' prior notice to the Customer and the Supply Agreement shall be deemed to have been amended accordingly.
8.1 Ramboll or its third party licensors retain all ownership and intellectual property rights in and to the Software and the Services, derivative works thereof, related services, work product associated with any Software, algorithms, documentation, licensed materials, as well as anything developed or delivered by or on behalf of Ramboll under this Agreement. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Software or the Services.
8.2 Ramboll confirms that it has all the rights in relation to the Software and the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
8.3 The Customer grants to Ramboll a royalty-free non-exclusive, irrevocable, worldwide, sublicensable and perpetual licence to utilise the information, data and materials provided to Ramboll by the Customer (including any data the Customer has populated the Software with, but excluding personal data) in order to use, store and copy such information and materials including but not limited to usage for the purpose of improving Ramboll’s products and services. Where reasonably possible and necessary, Ramboll shall anonymise the same.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
9.2 Subject to clause 9.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
9.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
9.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
9.5 The Customer acknowledges that details of the Software, and the results of any Services, constitute Ramboll's Confidential Information.
Warranties, Disclaimer and Indemnity
10.1 Subject to clauses 10.2, 10.3 and 10.4, Ramboll warrants that the Software will conform in all material respects to the relevant Specification for the duration of the Warranty Period. If, within the Warranty Period, the Customer notifies Ramboll in writing that the Software does not conform in all material respects to the relevant Specification (each a “Warranty Non-Conformance”), Ramboll shall, at Ramboll’s option, do one of the following:
(i) repair the Software;
(ii) replace the Software; or
(iii) if neither of the above is (in Ramboll’s absolute discretion) practicable, terminate this Agreement immediately by written notice to the Customer and refund any of the Subscription Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof.
This clause 10.1 states the Client’s sole and exclusive remedy in respect of a Warranty Non-Conformance.
10.2 The warranty set out in clause 10.1 shall not apply to the extent that the Warranty Non-Conformance either (a) has been remedied by a Major Version which Ramboll has made available to the Customer; or (b) is caused by:
(i) Use of the Software other than in accordance with this Agreement;
(ii) Use of the Software for a purpose other than that for which it was designed;
(iii) any failure of the Customer's equipment, including failure of power or other utilities to any of the Customer's equipment;
(iv) delays, delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities outside of Ramboll's control, including the Customer's own private networks and the public internet;
(v) the Customer's failure to use the Software in accordance with the Documentation;
(vi) the Customer's failure to implement the System Requirements, or attempting to access the Software from equipment that does not meet the System Requirements; or
(vii) Use of the Software with any software or system which has not been approved by Ramboll in its Documentation or otherwise in writing;
(viii) modifications to the Software by anyone other than Ramboll or its contractors;
10.3 Ramboll shall be excused from its obligations under clause 10.1 to the extent that it is prevented from complying with them by the Customer’s failure to provide all of the information that Ramboll determines is necessary to assist it in resolving the Warranty Non-Conformance, including a documented example of that Warranty Non-Conformance, or sufficient information to enable Ramboll to re-create the Warranty Non-Conformance.
10.4 The warranty under clause 10.1 shall not apply where the Software is provided free of charge.
10.5 Ramboll does not warrant that the use of the Software will be uninterrupted or error-free.
10.6 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
10.7 The Customer acknowledges that any Open-Source Software provided by Ramboll is provided “as is” and expressly subject to the disclaimer in Clause 10.8.
10.8 Except for the warranty set out in clause 10.1, all other conditions, warranties, representations or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law, civil law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose.
10.9 If Ramboll determines that a malfunction is due to a problem with the Customer’s hardware, web site or other software, Ramboll will so inform the Customer, and it will be the Customer’s responsibility to obtain and pay for any repairs or modifications required.
10.10 This Agreement shall not prevent Ramboll from entering into similar Agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
10.11 Ramboll warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement
10.12 The Customer shall defend, indemnify and hold harmless Ramboll against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Software and/or Services.
10.13 Each party shall use commercially reasonable efforts to limit on its systems software code whose purpose is to disrupt, damage or interfere with systems, software, or data and to avoid introducing viruses into the other party’s systems through the use of the Software. Such efforts shall include, without being limited to, the use of commercially reasonable virus protection, firewall and security software.
10.14 Where Ramboll deems the Software of the Services to potentially infringe third party Intellectual Property Rights or other rights, Ramboll shall have the right, at its discretion, to (i) obtain for the Customer the right to continue utilising the Software; (ii) replace the Software or a part thereof with an alternative, provided that it does not materially affect functionality; (iii) modify the Software so as to cause the infringement to cease; or (iv) where (i), (ii) and (iii) are not reasonably practicable, terminate this Agreement immediately by written notice to the Customer and refund any of the Subscription Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s Use of the same to the date of termination) on return of the Software and all copies thereof.
10.15 In no event shall Ramboll, its employees, agents and sub-contractors be liable to the Customer to the extent that alleged third party infringement is based on:
(a) a modification of the Software or Services by anyone other than Ramboll; or
(b) the Customer's use of the Software or Services in a manner contrary to the instructions given to the Customer by Ramboll; or
(c) the Customer's use of the Software or Services after notice of the alleged or actual infringement from Ramboll or any appropriate authority.
10.16 The foregoing clauses 10.14, 10.15 and clause 11.3(b) states the Customer's sole and exclusive rights and remedies, and Ramboll's (including Ramboll's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
10.17 Where Ramboll provides Services as part of this Agreement, Ramboll shall exercise the reasonable skill and care required of a professional consultant in its performance of the Services.
Limitation of liability
11.1 Nothing in this Agreement excludes the liability of Ramboll:
(a) for death or personal injury caused by Ramboll's negligence; or
(b) for fraud or fraudulent misrepresentation.
11.2 Except as expressly and specifically provided in this Agreement the Customer assumes sole responsibility for results obtained from the use of the Software and the Services by the Customer, and for conclusions drawn from such use. Ramboll shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Ramboll by the Customer in connection with the Services, or any actions taken by Ramboll at the Customer's direction
11.3 Subject to clause 11.1 and clause 11.2:
(a) Ramboll shall have no liability arising under or in connection with this Agreement, regardless of the legal theory of liability, for:
(i) loss of profits or revenues
(ii) loss of anticipated savings;
(iii) loss of business opportunity;
(iv) loss of or damage to goodwill or reputation;
(v) loss or corruption of data;
(vi) any indirect or consequential loss; or
(vii) any loss arising from use of or reliance on Third Party Data; and
(b) Ramboll's total aggregate liability in contract, tort including negligence (or equivalent legal theory), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim first accrued.
Term and termination
12.1 This Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this Agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
12.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(d) to clause 12.2(j) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) there is a change of control of the other party; or
(n) any warranty given by Ramboll in Error! Bookmark not defined.10.1 of this Agreement is found to be untrue or misleading.
12.3 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Software or Services;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
12.4 Ramboll may suspend the Customer’s access to, or use of, the Software if Ramboll reasonably believes that (a) there is a significant threat to the functionality, security, integrity, or availability of the Software or any content, data, or applications in the Software; or (b) the Customer is accessing or using the Software to commit an illegal act. When reasonably practicable and lawfully permitted, Ramboll will provide the Customer with advance notice of any such suspension. Ramboll will use reasonable efforts to re-establish the Software access promptly after Ramboll determines that the issue causing the suspension has been resolved. During any suspension period, Ramboll may, but is not obligated to, make Customer Data (as it existed on the suspension date) available to the Customer, unless otherwise prohibited by law. Any suspension under this clause shall not excuse the Customer from the Customer’s obligation to make payments under this Agreement. The Customer may terminate the Software and be refunded all unused and prepaid fees in the event the suspension extends for more than twenty (20) Business Days.
Service Outages and Usage Monitoring.
13.1 Ramboll shall use commercially reasonable efforts to provide availability to the Software at all times during Normal Business Hours, however Ramboll will have no liability for any failure to provide access to the Software during;
(a) holidays and weekends;
(b) any Scheduled Outage or Emergency Maintenance Period;
(c) unavailability resulting from a force majeure event;
(d) unavailability of third-party data used in or necessary for accurate use of the Services; or
(e) unavailability caused, directly or indirectly, by the acts or omissions of the Customer or its employees, agents, contractors, or representatives or by the Customer’s or its employees’, agents’, contractors’, or representatives’ equipment.
Ramboll shall provide initial notice to a designated Customer representative by telephone, e-mail, or comparable notification service promptly after Ramboll becomes aware of an event that has caused or may require Emergency Maintenance. In the event the Customer first becomes aware of an outage, the Customer shall promptly provide initial notice to Ramboll.
If there is an inconsistency between any of the provisions in the main body of this Agreement, the Supply Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement
17.1 This Agreement constitutes the entire Agreement between the parties and supersedes and extinguishes all previous Agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.1 The Customer shall not, without the prior written consent of Ramboll, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Third party rights
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns).
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the Applicable Law. Each party irrevocably agrees that the courts of the Applicable Law shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Compliance with Laws and Standards of Conduct
21.1 Bribery, Corruption and in General. The Customer agrees, represent and warrant that it is in and will maintain compliance with and take reasonable measures to ensure that its personnel, subcontractors, agents and others subject under its control or determining influence are in and maintain compliance with all applicable law, including specifically, but without limiting the foregoing, those relating to bribery or corruption, and that it will inform Ramboll without undue delay if it or any of them have been or are hereafter investigated for or charged with bribery, corruption or similar conduct by any agency or tribunal of competent jurisdiction (e.g., under the US Foreign Corrupt Practices Act or UK Bribery Act). The Customer also agrees, represents and warrants that it is in and will maintain compliance with and take reasonable measures to ensure that its personnel, subcontractors, agents and others subjects under its’ control or determining influence are in and maintain compliance with the standards provided in the conventions of the United Nations and OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, to the extent applicable.
21.2 Export Control and Similar Laws. As used herein, “Export Control Laws” means (1) all applicable laws of the United States of America relating to the export or re-export of commodities, technologies, products/services and/or information, including, for example, but without limitation, the Export Administration Act of 1979, the International Emergency Economic Powers Act, the Trading with the Enemy Act, the Arms Export Control Act, the International Boycott Provisions of Section 999 of the U.S. Internal Revenue Code of 1986 (as amended), and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Asset Control (a/k/a OFAC), (2) all applicable trade control legislation of the European Union, including, for example, but without limitation, Regulation (EC) No 428/2009 (as amended) on setting up a Community regime for control of exports, transfer, brokering and transit of dual-use items (a/k/a “Dual-use regulation”) as well as any applicable rules and regulations laid down or implemented in the member states of the European Union, and (3) to the extent applicable, the analogous laws of any and all other applicable jurisdictions. The Customer acknowledges that Software (and any direct or indirect product derived therefrom) are or may be subject to Export Control Laws. In turn, and without limiting any other provision of this Agreement, the Customer agrees, represents and warrants that it will not, and that it will take reasonable measures to ensure that its personnel, subcontractors, agents and others subject to its control or determining influence do not, use, distribute, divert, transfer or transmit, or permit or facilitate any other person or entity to use, distribute, divert, transfer or transmit, any product/service, technology, data, information, material, software or other thing whatsoever derived from the Software (even if incorporated into other products/services, technology, data, information, material, software or other things), except in compliance with and as authorized/permitted by such Export Control Laws, and, if requested by Ramboll, the Customer agrees, represents and warrants that it will execute all documents and provide such other assistance as may be reasonably requested by Ramboll in order to comply with such laws, including obtaining any export licenses or permits as may be required under the applicable Export Control Laws. The Customer further agrees, represents and warrants that it will not, and that it will take reasonable measures to ensure that its personnel, subcontractors, agents and others subject to its control or determining influence do not, use, distribute, divert transfer or transmit, or permit or facilitate any other person or entity to use, distribute, divert transfer or transmit, any product/service, technology, data, information, material, software or other thing whatsoever derived from the Software (even if incorporated into other products/services, technology, data, information, material, software or other things) for the purpose of or in connection with the development, production, handling, operation, maintenance, storage, detection, identification or disseminations of nuclear, chemical or biological weapon proliferation or development of missile technology enabling development, production, maintenance or storage of missiles capable of delivering such weapons.
21.3 Sanctions Compliance. To the extent not already covered above, the Customer represents and warrants that neither it, nor, as applicable, any of its employers, affiliates, subsidiaries, agents or parent companies, nor any of its or their shareholders, partners, members, directors, officers, personnel, or other agents, nor any other person or entity having a direct or indirect ownership or controlling interest in the Customer or them, are (i) a person targeted by economic, trade or financial sanctions laid down, administered or enforced by the United Nations, the United States, the European Union or its Member States, the United Kingdom or any other jurisdiction that is applicable to the Software or its use thereof, including, but not limited to, persons designated on the U.S. Department of the Treasury, Office of Foreign Assets Control’s List of Specially Designated Nationals and Other Blocked Persons and Consolidated Sanctions List, the U.S. State Department's Non-proliferation Sanctions Lists, the UN Financial Sanctions Lists, the EU's Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions, and the UK HM Treasury Consolidated Lists of Financial Sanctions Targets; or (ii) directly or indirectly owned or controlled by any such person (each a “Restricted Person”). The Customer agrees, represents and warrants that it will notify Ramboll in writing immediately if it or, as applicable, any of its employers, affiliates, subsidiaries, or parent companies, or any of its or their shareholders, partners, members, directors, officers, personnel, or other agents, or any other person or entity having a direct or indirect ownership or controlling interest in the Customer or them, becomes a Restricted Person or if the Customer or they become directly or indirectly owned or controlled by one or more Restricted Persons.
21.4 In addition, to the extent not already covered above, the Customer agrees, represents and warrants that it will not, and that it will take reasonable measures to ensure that its personnel, subcontractors, agents and others subject to its control or determining influence do not, use, distribute, divert, transfer or transmit, permit or facilitate any other person or entity to use, distribute, divert, transfer or transmit, any product/service, technology, data, information, material, software or other thing whatsoever derived from the Software(even if incorporated into other products/services, technology, data, information, material, software or other things) in activity with, for, on behalf of, or for the benefit of, a Restricted Person or other individual, entity, territory or organization targeted for sanction and/or embargo by European or United States authorities, as applicable, or other applicable sanctions regimes, or, to the extent not already covered above, in activity directly or indirectly involving Cuba, Iran, North Korea, Sudan, Syria or Crimea/Sevastopol.
21.5 Termination/Indemnification for Non-Compliance with Laws. Without limiting any other of Ramboll’s rights to terminate set forth herein or otherwise, Ramboll may terminate the Customer’s use of/access to the Software and all other agreements and relationships with you effective immediately and without liability or obligation whatsoever, if:
(i.) the Customer, its personnel, subcontractors, agents or others subject to its control or determining influence engage in bribery, corruption or similar conduct, or are charged with such conduct by any agency or tribunal of competent jurisdiction;
(ii.) the Customer fails to comply with its obligations under the immediately preceding subsections 21.1 through 21.4;
(iii.) the representations and warranties set forth in the immediately preceding subsections 21.1 through 21.4, at any time, become untrue or Ramboll has reasonable and specific grounds to believe that they have become untrue or to expect that they will become untrue;
(iv.) Ramboll determines, in its sole and absolute discretion, that, by continuing to provide to the Customer access to/use of the Software or otherwise maintain its relationship with the Customer would (i) contravene, or risk contravening any applicable international, national, state, local or equivalent law, including, without limitation, Export Control Laws or (ii) be sanctionable under the economic, trade and financial sanctions administered and enforced by the United Nations, the United States, the European Union and its Member States, or the United Kingdom; or
(v.) any transaction related to the Software or the terms under which the Customer is granted access thereto, including, without limitation, this Agreement, is withheld, refused, declined or otherwise prevented by any of Ramboll’s or its Affiliates banks or if Ramboll determines in good faith that its credit facilities or other banking relationships may be materially adversely impacted based on concerns that you have engaged in conduct inconsistent with the text or spirit of this clause 21.
In addition, the Customer agree to indemnify and hold harmless Ramboll and its Affiliates from any claims, damages, liabilities, penalties, costs, fees, expenses and other losses whatsoever incurred as a result of:
(i.) the Customer engaging in bribery, corruption or similar conduct, or being charged with such conduct by any agency or tribunal of competent jurisdiction;
(ii.) the Customer failing to comply with its obligations under the immediately preceding subsections 21.1 through 21.5; or
(iii.) the representations and warranties set out in the immediately preceding subsections 21.1 through 21.5, at any time, becoming untrue.
This Agreement has been entered into on the date stated at the beginning of it.