Qryptal Solutions License Agreement

THIS QRYPTAL SOLUTIONS LICENSE AGREEMENT (THE “AGREEMENT”) APPLIES TO THE USE OF ANY SOFTWARE PROVIDED DIRECTLY OR INDIRECTLY BY QRYPTAL PTE LTD. (“QRYPTAL”), A SINGAPORE REGISTERED COMPANY WITH A PLACE OF BUSINESS AT 05 CECIL ST, #!5-02, SINGAPORE 069534. BY EITHER FOLLOWING THE ONLINE ACCEPTANCE PROCESS PROVIDED BY QRYPTAL OR INSTALLING, ACCESSING, OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. A CONTRACT IS THEN FORMED BETWEEN QRYPTAL AND EITHER YOU PERSONALLY, IF YOU ARE USING THE SOFTWARE FOR YOURSELF, OR THE COMPANY OR OTHER LEGAL ENTITY WHICH YOU REPRESENT (“CUSTOMER”).

1. Qryptal Software; Ordering.
   1. Qryptal Software. Qryptal software products are licensed on a subscription or Usage basis and are made available in a software-only (or “virtual”) solution or as a hosted solution. Customer’s rights to use Qryptal software apply only to the Qryptal software licensed under an Order (defined below).
   2. Order Process. Orders for Qryptal software and services may be made through written Orders placed directly with Qryptal, or through orders placed with an Qryptal authorized reseller (“Channel Partner”). An order becomes part of this Agreement upon acceptance of the order by Qryptal or a Channel Partner (the accepted order referred to as the “Order”). For Orders placed through Channel Partners, only the line items for Qryptal’s published products and services listed in the Order and which are provided to and paid for by Customer constitute the “Order” and no other terms and conditions in such documents shall apply to the relationship of Parties. In the event of any conflict between the terms of any Order and the terms of this Agreement, the terms of this Agreement shall govern.
   3. Delivery. For downloadable versions of the Qryptal software, Customer may download the software from a link provided by Qryptal. For hosted versions of the Qryptal Solution, access shall be provided through a password-protected web interface.
2. Applicable Terms.
   1. Trial Versions. If Customer has ordered or downloaded a trial version of Qryptal software, then the provisions of Sections 5, 7.1, 7.3, 8.2, 8.3, 8.4 and 11.2 shall not apply during the trial but shall be effective upon the date Customer upgrades to a paid license for such Qryptal software.
   2. Inapplicability of Purchase Orders. The terms and conditions of this Agreement shall govern the relationship of the Parties regarding Qryptal software and services utilized by Customer and Customer’s form of purchase order and similar documents shall have no force or effect.
3. Definitions.
   Unless otherwise specified, capitalized terms used in this Agreement will have the meanings attributed to them in this Section 3.

   “Qryptal Solution” means the object code versions of the Qryptal software identified on an Order and includes related Server Software, Client Software, Updates, and Documentation, but does not include Open Source Software which is provided pursuant to Section 4.5.

   “Affiliate” means with respect to any entity, any other entity which directly or indirectly

   “Client Software” means the object code versions of the desktop client software or mobile apps for the licensed Qryptal Solution.

   “Designated User” means the number of users for whom Customer has purchased Designated User licenses as set forth on the applicable Order, plus any additional True-Up Users added pursuant to Section 6.3 below. Designated Users consist of Customer, if Customer is an individual, or if the license to the Qryptal Solution is obtained for use by an entity, Customer’s and its Affiliates’ employees and independent contractors.

   “Documentation” means Qryptal’s standard written materials and specifications for the Qryptal Solution licensed by Customer.

   “Effective Date” means (i) for Orders submitted to Qryptal, the date that Qryptal accepts the Order; or (ii) for orders submitted to a Channel Partner on a form other than an Qryptal Order form, the date Qryptal makes the software available to Customer for download or, for software provided on a physical appliance, the date of shipment.

   “Hardware” means computer equipment, if any, purchased from Qryptal by Customer.

   “Hosted Services” means the remote access and use of a hosted version of the Qryptal Solution as hosted by Qryptal, excluding Web Orders.

   “License Term” means the either the use by date or subscription period for use of the Qryptal Solution, as identified on the applicable Order. For subscription licenses: each renewal is a separate License Term. For trial versions, the License Term period shall be for the period of forty-five (45) days unless otherwise indicated by Qryptal.

   “Maintenance Support Services” means the support services provided by Qryptal to Customer in accordance with the applicable Maintenance Support Policy as described in Section 5.

   Party” means either Customer or Qryptal and “Parties” means both Customer and Qryptal.

   “Releases” means Qryptal software for which Qryptal charges a separate fee.

   “Server Software” means the object code server software versions of the Qryptal Solution, as identified on the applicable Order.

   “Update” means additions, upgrades, or modifications to the Qryptal Solution licensed by Customer and provided by Qryptal under this Agreement. Updates do not include Releases.

4. License Terms.
   1. License Grant. Subject to the terms and conditions of this Agreement, Qryptal hereby grants to Customer during the License Term, a non-exclusive, non-transferable and non-sublicensable license for Customer’s internal business purposes to: (a) for each Designated User, install and use the Client Software on supported environments for up to the number of authorized Designated Users set forth on an Order Form; and (b) use, access, and for Qryptal Solutions not hosted by Qryptal, copy the Server Software on supported environments for up to the number of copies identified on the Order.
   2. License Restrictions. Except as set forth in an Order or this Agreement, Customer shall not copy the Qryptal Solution except to make a reasonable number of copies for the purposes of security back-up, relocation or disaster recovery; provided, however, that Customer may make and use the number of copies of Client Software that it deems appropriate unless the number of copies of Client Software is restricted as set forth on the applicable Order. Customer shall not make or permit the making of any modifications, additions or enhancements to the Qryptal Solution, or cause or permit the disassembly, decompilation or reverse engineering of the Qryptal Solution in whole or in part except to the extent such restriction is prohibited by applicable law. Except as expressly authorized by Qryptal in writing, Customer shall not transfer, sell, license, sublicense, outsource, rent or lease the Qryptal Solution or use it for service bureau or other third-party use. All rights not expressly granted hereunder are reserved. Customer is solely responsible and liable for the use of and access to the Qryptal Solution by Designated Users and for all files and data transmitted, shared, or stored using the Qryptal Solution. Licensee acknowledges and agrees that the licenses granted herein are neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Qryptal with respect to future functionality or features.
   3. Ownership. All right, title, and interest, including without limitation all intellectual property rights, in and to the Qryptal Solution, including any and all modifications, enhancements, derivative works, Updates and Releases, are the sole and exclusive property of Qryptal and its licensors. Customer shall not remove, and shall reproduce on any permitted copies, all proprietary, copyright, trademark and trade secret notices contained in or placed upon the Qryptal Solution.
   4. Open Source Software. Customer agrees that any software or materials which may be made available by Qryptal, or otherwise obtained or used by Customer, subject to an open source license or other open source terms (“Open Source Software”) shall be and shall remain subject to the terms and conditions of the original providers and are not part of the Qryptal Solution. Open Source Software terms are made available either with the Qryptal Solution or through the “Admin Guide” of the applicable Qryptal Solution.
5. Maintenance Support Services.The Qryptal Solution is provided with Email and Phone Support Services during Singapore business hours are included in the annual end-user fees and are provided in accordance with Qryptal's standard Maintenance Support Policy. This is in effect as of provided on the applicable Order, and is provided for the License Term. Maintenance Support Services shall automatically renew in conjunction with license renewals. As part of Maintenance Support Services, Qryptal will make available to Customer all Updates to the supported Qryptal Solution that Qryptal makes generally available to its other customers. Customer shall provide Qryptal access to the Qryptal Solution to install such Updates if required by Qryptal.
6. Confidentiality. The Parties acknowledge that by reason of their relationship under this Agreement, they may have access to and acquire Confidential Information of the other Party. Each Party receiving Confidential Information (the “Receiving Party”) agrees to maintain all such Confidential Information received from the other Party (the “Disclosing Party”), both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the terms of this Agreement to its legal and business advisors if such third parties agree to maintain the confidentiality of such Confidential Information under terms no less restrictive than those set forth herein. The Receiving Party further agrees to use the Confidential Information only for the purpose of performing this Agreement. Notwithstanding the foregoing, the obligations set forth herein shall not apply to Confidential Information which: (i) is or becomes a matter of public knowledge through no fault of or action by the Receiving Party; (ii) was lawfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party; (iii) subsequent to disclosure, is rightfully obtained by the Receiving Party from a third party who is lawfully in possession of such Confidential Information without restriction; (iv) is independently developed by the Receiving Party without resort to the Confidential Information; or (v) is required by law or judicial order, provided that the Receiving Party shall give the Disclosing Party prompt written notice of such required disclosure in order to afford the Disclosing Party an opportunity to seek a protective order or other legal remedy to prevent the disclosure, and shall reasonably cooperate with the Disclosing Party’s efforts to secure such a protective order or other legal remedy to prevent the disclosure. Each party agrees that in the event of such party’s actual or threatened violation of the provisions of this Section, the other party will not have an adequate monetary remedy and shall be entitled to seek appropriated immediate injunctive relief without any requirement to post bond, in addition to any other available remedies.
7. Limited Warranties and Disclaimer.
   1. Limited Qryptal Solution Warranty.

      (a) Warranty. Qryptal warrants to Customer that: (i) the media on which the Qryptal Solution is furnished under normal use will be free from material defects in materials and workmanship for a period of thirty (30) days from the date it is furnished to Customer; (ii) the Hardware sold to Customer, if any, will be free from defects in materials and workmanship for a period of one (1) year from the date it is furnished to Customer; and (iii) the Qryptal Solution and Open Source Software will operate in substantial conformance with the Documentation for a period of thirty (30) days after the date the original Qryptal Solution identified on the Order is furnished to Customer.

      (b) Remedy. Qryptal’s entire liability and Customer’s exclusive remedy under this warranty shall be replacement or repair of the defective media or Qryptal Solution that does not meet Qryptal’s limited warranty. Notwithstanding the foregoing, if Qryptal is unable to repair or replace defective components of the Qryptal Solution within a reasonable period of time (not to exceed thirty (30) days from Qryptal’s receipt of Customer’s notice), Qryptal may, at its sole option, terminate this Agreement, in which case: (i) Qryptal shall (a) refund all license fees received by Qryptal for the Qryptal Solution and (b) the fees received by Qryptal for the unexpired term of Maintenance Support Services, and (ii) Customer shall (a) uninstall and destroy the nonconforming Qryptal Solution and certify in writing that it has done the same. Qryptal is not liable under any warranty or otherwise for defects or liability caused by the use of the Qryptal Solution in any manner or for any purpose other than that for which it was licensed to Customer, or for causes not within Qryptal’s reasonable control. Warranties are void if failures are caused in whole or in part by accident, abuse, misuse, or modifications not authorized in writing by Qryptal.

   2. Virus Protection. Qryptal warrants to Customer that, to the best of Qryptal’s knowledge as of the date of delivery of the Qryptal Solution, the Qryptal Solution will be free from any viruses, spyware, trojans, or disabling or malicious code.
   3. Limited Services Warranty. Qryptal warrants that all installation or professional services provided by Qryptal hereunder will be of a professional quality and will conform to generally accepted industry standards. This warranty shall be valid for thirty (30) days from the completion of the applicable services. As Customer’s sole and exclusive remedy and Qryptal’s sole and exclusive liability for breach of the foregoing warranty, Qryptal will, at its sole option and expense, and provided that Qryptal is notified of any such breach during the warranty period, re-perform the services, or if Qryptal is unable to perform the services as warranted, refund the fees paid to Qryptal for the service.
   4. Disclaimer. THE EXPRESS LIMITED WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. QRYPTAL DOES NOT WARRANT THAT THE USE OF THE QRYPTAL SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL NONMATERIAL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED. QRYPTAL MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE PRODUCTS OR SERVICES PROVIDED BY ITS CHANNEL PARTNERS OR ANY HOSTED SERVICES PROVIDERS, AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY ACT OR OMISSION OF ANY CHANNEL PARTNER OR HOSTED SERVICES PROVIDERS. NO CHANNEL PARTNER OR HOSTED SERVICES PROVIDER SHALL HAVE ANY AUTHORITY TO BIND QRYPTAL TO ANY TERMS OR CONDITIONS OTHER THEN THOSE EXPRESSLY SET FORTH HEREIN.
8. Indemnification.
   1. Customer Indemnity. Customer will, at its expense, indemnify and hold Qryptal harmless against any settlement agreed to by Customer, or any award of damages, liabilities, fines, costs, and/or expenses, including costs of litigation and reasonable attorneys’ fees, which Qryptal may incur, based upon or arising out of (i) any use of the Qryptal Solution by Customer in breach of this Agreement, and (ii) any activity related to use of the Qryptal Solution, including but not limited to negligent or wrongful conduct, the acts or omissions of Designated Users and users who access and upload shared data and files, and for the content of all files and data transmitted, shared, or stored using the Qryptal Solution (“Customer Data”).
   2. Qryptal Indemnity. Qryptal will defend any action brought against Customer to the extent that it is based upon a claim that the Qryptal Solution, as provided by Qryptal to Customer (directly or through a Channel Partner) infringes such third-party’s U.S. patent or foreign equivalent thereof existing as of the Effective Date of the applicable Order or any copyright, or misappropriates any trade secret (each a “Claim”), and will pay any costs (including reasonable attorney’s fees) and damages in settlement thereof or attributable to such claim that are finally awarded against Customer; provided that Customer will give Qryptal: (i) prompt written notice of such Claim, (i) all cooperation and assistance reasonably requested by Qryptal in the defense of the Claim, at Qryptal’s sole expense, and (iii) sole control over the defense and settlement of the Claim, provided that (a) Customer may participate in the defense of the Claim at its sole expense, and (b) Qryptal may not, without the prior written consent of Customer, enter into a settlement to the extent such settlement restricts the business or operations of Customer in a manner other than ceasing to utilize the infringing Qryptal Solution.
   3. Exclusions. Qryptal will have no liability for a Claim to the extent it results from: (a) modification of the Qryptal Solution made by a party other than Qryptal, if the Claim would not have arisen but for the modification; (b) the combination, operation or use of the Qryptal Solution with third party data, software, equipment or devices, if such Claim would not have arisen but for such combination, operation or use; (c) Customer’s failure to use updated or modified software provided by Qryptal if use of such updated or modified software or hardware would have resolved the Claim; or (d) compliance by Qryptal with designs, plans or specifications furnished by Customer or on Customer’s behalf, if the Claim would not have arisen but for such designs, plans or specifications.
   4. Remedies. If Qryptal determines that a third party claim may substantially interfere with Customer’s use of the Qryptal Solution, Qryptal, at its sole discretion, may (i) replace the Qryptal Solution, without additional charge, with a non-infringing product that is at least functionally equivalent; (ii) modify the Qryptal Solution to avoid the infringement; (iii) obtain a license for Customer to continue use of the Qryptal Solution, and pay any additional fee required for such license: or (iv) if none of the foregoing alternatives are commercially reasonable, Qryptal may terminate the license for the infringing Qryptal Solution, in which case (a) Qryptal shall refund a pro rata portion of all fees received by Qryptal for the Qryptal Solution as measured over the License Term; and (b) Customer shall uninstall and destroy the nonconforming Qryptal Solution and certify in writing that it has done the same. QRYPTAL’S AGGREGATE INDEMNIFICATION LIABILITY FOR CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION SHALL NOT EXCEED THE FEES PAID BY CUSTOMER FOR THE APPLICABLE QRYPTAL SOLUTION. THIS SECTION 9 SHALL CONSTITUTE QRYPTAL’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR A CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
9. Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS HEREIN, FOR A BREACH OF SECTION 7 (CONFIDENTIALITY) OR FOR CUSTOMER’S INTENTIONAL BREACH OF THE LICENSES GRANTED IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, AND QRYPTAL’S LICENSORS AND SUPPLIERS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. WITHOUT LIMITING THE FOREGOING IN THIS SECTION, EXCEPT FOR A BREACH OF SECTION 7 OF THIS AGREEMENT (CONFIDENTIALITY), QRYPTAL’S AGGREGATE LIABILITY FOR DAMAGES SHALL IN NO EVENT EXCEED THE TOTAL FEES RECEIVED FROM THE LICENSES GRANTED TO CUSTOMER UNDER THIS AGREEMENT IN THE PREVIOUS TWELVE MONTHS FOR THE APPLICABLE QRYPTAL SOLUTION. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PRICES AND TERMS OF THIS AGREEMENT WERE MADE IN RELIANCE UPON THE LIMITATION OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN QRYPTAL AND CUSTOMER.
10. Term and Termination.
    1. Term. This Agreement commences on the Effective Date and, unless terminated as set forth in this Section, shall continue for the License Term on the applicable Order. Except for trial version which shall terminate at the end of the applicable trial period, or unless otherwise expressly set forth on the Order, the License Term of unused code licences shall be extended on the purchase of a new license pack for a period as set forth on the new Order.
    2. Termination. Either Party may terminate this Agreement or any license granted under this Agreement if: (i) the other party breaches any material provision of this Agreement for any reason, which breach has not been cured within thirty (30) days of written notice; or(ii) the other Party becomes subject of a voluntary or involuntary petition in bankruptcy, or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, which is not dismissed within sixty (60) days after commencement.
    3. Consequences of Termination. Upon termination or expiration of this Agreement, for any reason, all rights granted under this Agreement shall terminate, and Customer will promptly return to Qryptal or, at Qryptal’s request, destroy, the applicable Qryptal Solution and provide Qryptal with written certification by an officer of Customer certifying compliance with the foregoing. Customer’s obligations to pay taxes and any amounts past due along with the following provisions shall survive any expiration or termination of this Agreement: Sections 4.2, 4.3, 4.4, 6, 7, 8, 9, 10.3 and 11.
11. Miscellaneous.
    1. Notice. Notices under this Agreement shall in writing and delivered via electronic mail, facsimile (with confirmation of receipt), in person, by overnight courier, or by prepaid certified or registered mail, return receipt requested, to a Party at its addresses set forth on the Order, as amended by notice pursuant to this Section. Notice by mail shall be deemed received five (5) days after deposit in the mailbox, with other notice deemed effective upon receipt.
    2. Assignment. Customer may assign this Agreement to an Affiliate or to the acquirer of all or substantially all of Customer’s assets, or the assets of the business unit making use of the Software, with prior written notice and provided that: (i) Customer provides written notice to Qryptal of the assignment; and (ii) the acquirer agrees in writing to be bound by this Agreement. Any other purported assignment by Customer shall be null and void. This Agreement shall bind the Parties and their permitted successors and assigns.
    3. Modification, Waiver, and Remedies. No modification, alteration, amendment or addition shall be effective unless made in writing, dated and signed by a duly authorized representative of each Party. No waiver of any breach hereof shall be held to be a waiver of any other or subsequent breach. Each party’s rights and remedies are in addition to any other rights and remedies provided by law or in equity. No choice of any remedy shall constitute an election of remedies hereunder.
    4. Force Majeure. Neither Party will incur any liability to the other on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of such Party. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, terrorism, riots, acts of war, internet and network failures, earthquakes and other natural disasters, fire and explosions. The foregoing shall not apply to Customer’s payment and the mutual confidentiality obligations hereunder.
    5. Governing Law. This Agreement is governed and interpreted in accordance with the laws of Singapore without reference to conflicts of laws principles and excluding the United Nations Convention on Contracts for the Sale of Goods. The parties consent to the exclusive jurisdiction of, and venue in, Republic of Singapore.
    6. Severability. If any provision of this Agreement is finally determined to be contrary to, prohibited by, or invalid under applicable laws or regulations, this Agreement will be modified so as to give effect to the intent of the Parties to the maximum possible extent. The remaining provisions of this Agreement shall remain in full force and effect.
    7. Entire Agreement; Construction. This Agreement constitutes the complete and exclusive agreement between the parties and supersedes any and all prior communications, representations and understandings, whether written or oral. There are no third-party beneficiaries of Customer. This Agreement shall not be amended or modified except in writing signed by duly authorized representatives of the Parties. Section headings are for convenience only and shall not affect interpretation of the relevant section. All notices must be either sent by overnight courier, by registered or certified mail, return receipt requested, or served personally. Notices will be deemed effective as of the date of delivery if sent overnight courier, five (5) days after mailing if sent by mail, or the date delivered if served personally. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the parties hereto.