SOFTWARE LICENSE AND ACCESS AGREEMENT
AREA OF APPLICATION: this Software License and Access Agreement (the “Agreement”) govern the Customer’s Use of the Software.
The Agreement shall apply to all software or software service deliverables of Sandvik Coromant (as a standalone product, embedded as a component in any supplied hardware or provided as a service, typically for use in or in combination with products manufactured and/or distributed by Sandvik Coromant.
If you are Using the Software or accepting the terms and conditions of the Agreement on behalf of the Customer, you represent and warrant that: (i) you have full legal authority to bind the Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the Customer, to this Agreement. If you do not have the legal authority to bind the Customer, do not click to accept or Use the Software.
LEGAL EFFECT: By clicking accept or Using the Software, the Customer agrees to be bound by the Agreement and the Agreement enters into force (the “Effective Date”).
1.DEFINITIONS
“Approved Source” means (i) Sandvik Coromant or (i) a reseller authorized to sell the Software on behalf of Sandvik Coromant.
“Sandvik Coromant” means AB Sandvik Coromant.
“Customer” means the legal entity licensing the Software under this Agreement.
“Documentation” means the most recent written (i) user or technical manuals, (ii) training materials, (iii) specifications or (iv) other documentation applicable to the Software made available by Sandvik Coromant in writing or on the Homepage, initially being: www.sandvik.coromant.com/silenttoolsplus.
“Homepage” means www.sandvik.coromant.com/silenttoolsplus
“License Details” means the allowed level of usage and other details of the license; including license duration, quantity and payment terms published on www.sandvik.coromant.com/silenttoolsplus, price list, claim certificate or right to use notification or similar.
“Software” means the Service Pack as specified in the Documentation (provided as a standalone product or embedded as a component in any supplied hardware), including any Updates but excluding any Third-Party Software. Software does not include source code.
“Territory” means the country in which the Licensee has its legal seat.
“Third Party Software” means software provided by third parties that may be included, provided with or otherwise used together with the Software as specified in Clause 2.4.
“Updates” means patches, additions, modifications, and new versions of the Software incorporating such patches, additions and modifications that are provided to Customer by Sandvik Coromant and that are not included in the initial delivery of the Software. Updates do not include additions or modifications that Sandvik Coromant reasonably considers to be a separate product or for which Sandvik Coromant charges its customers extra or separately.
“Use” or “Using” means to download, install, activate, access or otherwise use the Software.
2.LICENSE
2.1.Subject to payment of the applicable fees and compliance with this Agreement, Sandvik Coromant grants to Customer a limited, non-exclusive, non-sub-licensable, non-transferable limited license to Use the Software and the Documentation solely for Customer’s internal operations in the Territory and in accordance with the License Details and the Documentation.
2.2.The License Details will identify whether Customer is purchasing a subscription, term based or perpetual license.
2.3.Customer may install Software on Customer's machines only in accordance with the Documentation. Customer may also make a reasonable number of copies of Software for testing, back-up and archival purposes.
2.4.The Software contains certain Third Party Software which is provided solely under the terms and conditions provided by its respective suppliers. The Customer may, if the Software supports such functionality, add additional Third Party Software not provided together with the Software. Any such additional Third Party Software is licensed solely on the terms and conditions provided by its respective suppliers. Sandvik Coromant does not support or endorse the use of any Third Party Software together with the Software and assumes no liability whatsoever for any errors in the Software or any other liability whatsoever that may occur as a result of the use of any Third Party Software.
3.LICENSE RESTRICTIONS.
3.1.Customer shall not (and shall not allow any third party to):
3.1.1.transfer, sublicense, or assign the Customer’s rights under this license to any other person or entity;
3.1.2.modify, adapt or create derivative works of the Software or Documentation or reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, underlying ideas, algorithms, libraries, file formats, data, databases or programming interfaces for the Software;
3.1.3.make the functionality of the Software available to third parties, whether as an application service provider, or on a rental, service bureau, hosted service, cloud service or other similar basis;
3.1.4.use Software that is licensed for a specific device (and always in accordance with the System Requirements), whether physical or virtual, on another device, including not using the Software in connection with secondhand or refurbished Sandvik Coromant equipment or products, or on Sandvik Coromant equipment or products not purchased through an Approved Source; or
3.1.5.remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the Software or the Documentation.
4.OWNERSHIP
4.1.Sandvik Coromant or its licensors retain ownership of all intellectual property rights in and to the Software and the Documentation, including copies, improvements, enhancements, derivative works and modifications thereof. Any intellectual property rights created by the Customer’s use of the Software shall vest with Sandvik Coromant.
4.2.The Customer’s rights to use the Software and the Documentation are limited to those expressly granted by this Agreement and any applicable License Details. No other rights with respect to the Software or Documentation or any related intellectual property rights are granted or implied.
5.CUSTOMER’S USE OF THE SOFTWARE
5.1.The Customer shall be solely responsible for its activities related to the use of the Software and the Documentation. The Customer undertakes to indemnify and hold Sandvik Coromant harmless from any liability inflicted upon or incurred by Sandvik Coromant, resulting from any use of the Software or the Documentation by the Customer or by a third party who has obtained, lawfully or unlawfully, the Software or copies thereof from the Customer, including, but not limited to, claims from third parties, damages, lost profits and additional license fees for Sandvik Coromant or other costs, including reasonable attorney's fees.
5.2.The Customer assumes sole responsibility for any data and results obtained from its use of the Software and the Documentation, and for conclusions drawn from such use, and for maintaining validation, error correction, back up and reconstruction of its own data input to, or output by, the Software.
5.3.The Customer is responsible for ensuring that its use of the Software complies with all relevant legislation, including (without limitation) manufacturing and export, and will indemnify Sandvik Coromant against any damages, claims, losses and costs resulting from any such incorrect or illegal use.
6.DISCLAIMER AND NO WARRANTY
6.1.THE SOFTWARE IS PROVIDED "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS". TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SANDVIK COROMANT DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SOFTWARE; (B) THE DOCUMENTATION; OR (C) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO SANDVIK COROMANT. IN ADDITION, SANDVIK COROMANT HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
6.2.SANDVIK COROMANT DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. SANDVIK COROMANT DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) FROM THE SOFTWARE IS ACCURATE, COMPLETE, OR USEFUL.
6.3.THE CUSTOMER ACKNOWLEDGES THAT ITS USE OF THE SOFTWARE IS AT ITS SOLE RISK. SANDVIK COROMANT DOES NOT WARRANT THAT THE CUSTOMER’S USE OF THE SOFTWARE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND SANDVIK COROMANT SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE CUSTOMER TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THE CUSTOMER AND THESE TERMS.
7.TOOL DATA
7.1.The Customer hereby consents and agrees that Sandvik Coromant may collect, store, and process data generated by the Customer’s use of the Software (and, as the case may be, the related equipment) (“Raw Data”). The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Raw Data. The data provided to the Customer by Sandvik Coromant through the Customer’s use of the Software (“Processed Data”) may be used by the Customer for its own internal business purposes and only in accordance with Sandvik Coromant’s intended use.
7.2.The Customer agrees and acknowledges that Sandvik Coromant may, and Sandvik Coromant reserves the right to, use (including, collecting, storing and processing) the Raw Data and the Processed Data (“Tool Data”). The Tool Data will, for the avoidance of doubt, not contain any Personal Data (as defined below) that may be used to identify an individual person. All rights, title and interest in relation to Tool Data will be exclusively retained by Sandvik Coromant for its own business purposes including the development, optimization, improvement, marketing, scheduling, and support of (i) the Software; and (ii) other current and future (a) software, services, and systems; (b) goods, products, equipment, parts, and services; (c) parts deliveries; (d) processes; and (e) support ((i) – (ii) jointly referred to as the “Purpose”).
7.3.The Customer agrees that the Tool Data may be shared with third parties for the Purpose, provided that the Customer is not identifiable from such Tool Data, and that Sandvik Coromant will not be required to return or destroy any such Tool Data (upon termination of this Agreement or otherwise).
8.PERSONAL DATA PROCESSING
8.1.In the provision of the Software, Sandvik Coromant may process Personal Data (as defined in the General Data Protection Regulation (EU) 2016/679)) related to persons employed or otherwise engaged by the Customer, e.g. in relation to user accounts and information and data connected thereto. The parties agree that the Customer shall have sole responsibility for any Personal Data processed by Sandvik Coromant as part of the provisioning of the Software and that Sandvik Coromant shall have no responsibility for such data, including any Personal Data.
8.2.The Customer undertakes and warrants to ensure that relevant consents to such processing of Personal Data is collected from its users, at all relevant times, to ensure that both parties potential processing of Personal Data is lawful under all applicable privacy laws or other data protection laws, also noting that such Personal Data may be transferred to another country (outside of the EEA). The Parties agree that the Customer shall be deemed the data controller and Sandvik Coromant the data processor and to reflect this in a separate agreement if required by law.
8.3.Sandvik Coromant will adhere to applicable data protection laws as well as to its internal data protection governance framework.
9.SUPPORT, UPDATES AND RIGHT TO CHANGE FUNCTIONALITY
9.1.This Agreement does not include any assistance services; such as installation, training, maintenance- or support services other than as offered by Sandvik Coromant from time to time. In case such assistance service is provided by Sandvik Coromant, the Customer shall be solely responsible for the performance and result of any such services and Sandvik Coromant accepts no liability in relation thereto.
9.2.Sandvik Coromant may without prior notice provide Updates and maintenance to the Software as well as changes, amendments and modifications to the Software, including the functionality of the Software. The Customer understands and accepts that such Updates and maintenance and such changes, amendments and modifications may lead to down-time and decreased availability in the Software.
10.INTELLECTUAL PROPERTY RIGHTS
10.1.Sandvik Coromant shall defend the Customer against any third party claim that the Software or Documentation infringes any intellectual property rights as of the Effective Date, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims subject to the limitations in this Section 10 and Section 11, provided that (i) Sandvik Coromant is given prompt notice of any such claim; (ii) the Customer provides reasonable co-operation to Sandvik Coromant in the defence and settlement of such claim; and (iii) Sandvik Coromant is given sole authority to defend or settle the claim.
10.2.In the defence or settlement of any claim, Sandvik Coromant may procure the right for the Customer to continue using the Software, replace or modify the Software so that they become non-infringing or, if such remedies are not reasonably available in Sandvik Coromant’s sole discretion, terminate this agreement with immediate effect. The Customer shall in such case be obliged to stop using the Software and the Customer will, as full and final compensation, obtain a refund equal to any prepaid license fee pro rata to any remaining period of time for which Customer is licensed to use the Software.
10.3.In no event shall Sandvik Coromant, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
10.3.1.a modification of the Software or Documentation by anyone other than Sandvik Coromant;
10.3.2.the Customer’s use of the Software or Documentation in breach of this Agreement, or in a manner contrary to the instructions given to the Customer by Sandvik Coromant;
10.3.3.the Customer’s use of the Software or Documentation after notice of the alleged or actual infringement from Sandvik Coromant or any appropriate authority; and
10.3.4.the use of any designs, plans, instructions, specifications, diagrams or the like, provided by the Customer, provided that such use of the designs, plans, instructions, specification, diagrams or the like are the basis for the infringement claim.
10.4.Sandvik Coromant’s liability under this Section will be reduced proportionately to the extent the liability was caused or contributed to by an act or omission of Customer or any of its personnel.
10.5.The foregoing state the Customer’s sole and exclusive rights and remedies, and Sandvik Coromant’s (including Sandvik Coromant’s employees’, agents’ and sub-contractors’) entire obligations and liability, for any alleged or proven infringement of any intellectual property rights.
11.LIMITATION OF LIABILITY
11.1.Nothing in this agreement excludes the liability of either party (i) for fraud or fraudulent misrepresentation; or (ii) for death or personal injury caused by Sandvik Coromant’s negligence.
11.2.SUBJECT TO SECTION 11.1: IN NO EVENT WILL SANDVIK COROMANT BE LIABLE FOR THE FOLLOWING, REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR OTHERWISE, EVEN IF SANDVIK COROMANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (A) INDIRECT, INCIDENTIAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) LOSS OR CORRUPTION OF DATA/INFORMATION OR INTERRUPTED OR LOSS OF BUSINESS; OR (C) LOSS OF REVENUE, PROFITS, GOODWILL OR ANTICIPATED SALES OR SAVINGS.
11.3.SUBJECT TO SECTION 11.1: SANDVIK COROMANT’S TOTAL LIABILITY IN CONTRACT (INCLUDING IN RESPECT OF THE INDEMNITY AT SECTION 10.1), TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SOFTWARE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
11.4.The Swedish Sales of Goods Act (SFS 1990:931) or the International Sales of Goods Act (CISG) (SFS 1987:822) shall not be applied to any provision of this Agreement or to any delivery of the Software.
12.TERM OF THE AGREEMENT, CANCELLATION AND TERMINATION
12.1.This Agreement is effective as of the Effective Date and shall continue until terminated in accordance herewith or as set forth in the License Details.
12.2.Termination:
12.2.1.Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after receipt of written notice of such breach; (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 such party (and not dismissed within thirty (30) days thereafter).
12.2.2.Sandvik Coromant may terminate this Agreement with immediate effect for convenience.
12.3.Effect of Expiration or Termination:
12.3.1.In the event of Sandvik Coromant’s termination for convenience under Section 12.2.2, Sandvik Coromant shall refund any prepaid license fee pro rata to any remaining period of time for which Customer is licensed to use the Software.
12.3.2.Upon termination of this Agreement, the Customer shall cease any and all use of the Software and, if requested by Sandvik Coromant, destroy or return all copies of Software and Documentation and so certify to Sandvik Coromant in writing.
12.4.Any provision that by the very nature of which should survive shall survive any termination or expiration of this Agreement.
13.CONFIDENTIAL INFORMATION
13.1.The Customer undertakes to treat as confidential and not disclose any information contained or embodied in the Software or Documentation and any material provided by Sandvik Coromant (hereinafter collectively referred to as the "Confidential Information") to any third party or use such Confidential Information for any other purpose than for the due performance of this Agreement provided that this Clause 13 shall not extend to any information which was rightfully in the possession of the Customer prior to the commencement of the negotiations leading to the Agreement or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this Agreement).
13.2.The Customer shall not without the prior written consent of Sandvik Coromant divulge any part of the Confidential Information to any person except to (i) the Customer's employees and third party consultants on a strict need to know basis; (ii) the Customer's auditors and any other persons or bodies having a right, duty or obligation to know the business of the Customer and then only in pursuance of such right, duty or obligation; and (iii) any person who is from time to time appointed by the Customer to maintain any equipment on which the Software is being used (in accordance with the terms of this Agreement) and then only to the extent necessary to enable such person properly to maintain such equipment.
13.3.The Customer undertakes to ensure that the persons and bodies mentioned in Clause 13.2 are made aware prior to the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to Sandvik Coromant.
14.GENERAL
Assignment
14.1.: Neither this Agreement nor any rights or obligations of the Customer hereunder shall be assignable or transferable by the Customer. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Sandvik Coromant may assign this Agreement in whole or in part in its sole discretion.
Severability
14.2.: If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
Amendments
14.3.: this Agreement may be supplemented, modified or amended by way of online terms or website terms (including shrink-wrap, click-wrap, click-through, click-accept).
Construction and Interpretation
14.4.: The original of this Agreement has been written in English. Customer waives any rights it may have under the law of its country to have this Agreement written in the language of that country. This Agreement shall be equally and fairly construed without reference to the identity of the party preparing this document as the parties have agreed that each participated equally in negotiating and preparing this Agreement, or have had equal opportunity to do so. The parties waive the benefit of any statute, law or rule providing that in cases of uncertainty, contract language should be interpreted most strongly against the party who caused the uncertainty to exist. The headings and titles to the articles and sections of this Agreement are inserted for convenience only and shall not be deemed a part hereof or affect the construction or interpretation of any provision hereof.
Entire Agreement
14.5.: This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
15.GOVERNING LAW AND ARBITRATION
15.1.The Agreement shall be governed by, and construed and enforced in accordance with the substantive laws of Sweden without regard to its principles of conflicts of laws.
15.2.Any and all dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC Institute). The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC Institute, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators. The seat of the arbitration shall be Stockholm, Sweden, and the language of the proceedings shall be English.
