Annata 365 for Microsoft DYNAMICS
The Licensee shall have the rights set out below provided the Licensee complies with the following license terms (the “License Terms”).
By installing, having installed, or using the Software, the Licensee accepts the License Terms and any subsequent changes to the License Terms relating to the Software. If the Licensee does not accept and/or comply with the License Terms and/or any changes to the License Terms, the Licensee is prohibited to install, have installed or use the Software.
The headings of the License Terms are for convenience only and shall not constrain or affect its construction or interpretation in any way whatsoever. Words importing the singular shall include the plural, and vice versa.
• “Access License” means CAL and SL.
• “Affiliate” means any legal entity that controls or is controlled by, directly or indirectly, or is under common control with Annata or the Licensee. The term “Control” and its correlative meanings, “controlling”, “controlled by” and “under common control with” means the legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the aggregate of all voting equity interests in an entity.
• “Annata” means Annata ehf., Hagasmari 3, 201 Kopavogur, Iceland and Annata’s Affiliates.
• “CAL” means client access license for the Software.
• “Client” means the Licensee.
• “Client Software” means the software, including web browsers or similar software, which allows a user or a device to access or use the Server Software or to use certain aspects of the Server Software when disconnected from the Server.
• “Derivative Work” means any modifications, enhancements or derivative works of the Software created as a feature, functionality or a reproduction of the Software.
• “Device” means a single personal computer, workstation, terminal, handheld computer, personal digital assistant, or other electronic devices.
• “Documentation” means any electronic or written aids, manuals, user instructions, technical literature, training material, demo material, specifications and all other related materials, which may be supplied to the Licensee by Annata to facilitate the use of the Software.
• “Enhancement Fee” means a fee paid or payable by the Licensee in order for the Licensee to receive updates of the unmodified version of the Software.
• “Product” means Annata License objects, Annata Software and Annata 365 Software as stand-alone products or addon products to other products like Microsoft Dynamics, Microsoft Azure or similar platforms as well as the underlying database that controls the Licensee’s users and financial reporting units.
• “Excluded License” means any license that requires, as a condition of use, modification and/or distribution of software subject to an excluded license, that such software or other software combined and/or provided with such software be; (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making Derivative Works; or (iii) redistributable at no charge.
• “Instance” means executing the Software’s setup or install procedure and all instances of the Software created by the Licensee by duplicating an existing instance. This can refer to subscription instance or Client tenant or mix of both.
• “License” means the license to use the Software, collectively the Perpetual License and the Subscription License.
• “Licensee” means the party stipulated on the first page of these License Terms and the Licensee’s Affiliates.
• “Microsoft Dynamics” means Microsoft Dynamics 365.
• “Partner” means the channel partner that has signed an Annata Solution Provider agreement (“ASPA”) with Annata authorizing that partner to market, distribute and service the Software.
• “Perpetual License” means a perpetual license for Microsoft Dynamics 365, subject to section 2.4 and 2.6.1.
• “Run Instance” means loading an Instance of the Software into memory and executing one or more of its functions or instructions. Once running, an Instance is considered to be running, whether or not its instructions continue to execute, until it is removed from memory.
• “Server” means a physical hardware system capable of running Server Software. A hardware partition or blade is considered to be a separate physical hardware system.
• “Server Software” means the software that provides services or functionality on the Licensee’s Server including Microsoft Dynamics Object Server (AOS) running either as an on-premise service or cloud service in the Microsoft Azure cloud platform or similar cloud platforms approved by Annata.
• “SL” means subscription access license for the Software.
• “Software” means Annata Products, Annata 365 Products for Microsoft Dynamics, including Instances, Documentation and, subject to periodic payment of applicable fees, updates, supplements, modification, addition and/or adaptation of the Software to enable or include certain features and/or functionality to conform to the applicable regulatory requirements (localization).
• “Subscription License” means a subscription license for Microsoft Dynamics 365 subject to sections 2.4 and 2.6.2.
2) License grant
2.1 The Software shall be purchased from Annata and/or a Partner.
2.2 License model. The Software is licensed based on the following:
• the number of Instances and/or Server Software of Products that the Licensee runs;
• the number and CAL or SL type of the Licensee’s users and/or Devices that access the Products; and
• the Server Software functionality accessed and the tasks enabled by the Licensee’s users or Devices.
2.3 The Software. The Software may include the following:
• Server Software;
• Client Software that can be installed or run on Devices and/or used with the Server Software;
• Additional components that may be separately licensed; and
• Any updates or supplements for the Software.
2.4 The Licensee shall pay for the License based on the Licensee’s selection of the License type as stipulated on the first page of the License Terms and the Licensee shall be bound by his selection thereof. The Licensee shall select the same type of license for Microsoft Dynamics as the selected type of License.
2.5 The Licensee shall have the equal number of Licenses for the Software as the number of Licensee’s licenses for Microsoft Dynamics or similar platforms the Software might be built for.
2.6 The rights and obligations of the Licensee in regards to the License are the same for each type of License, except where otherwise stipulated herein. The types of License are as follows:
2.6.1 Perpetual License. The Licensee’s rights to use the Software are perpetual from the date of signing subject to (i) payment to Annata or Partner of a License fee for use of the Software; (ii) the periodic payment to Annata or Partner of Enhancement Fees; and (iii) Licensee’s signature and compliance to the License Terms.
2.6.2 Subscription License. The Licensee’s rights to use the Software are periodic subject to (i) the periodic payment to Annata or Partner of a License fee for use of the Software; and (ii) Licensee’s signature and compliance to the License Terms.
2.7 The Licensee with a Perpetual License shall inform Annata immediately of any increase in the number of users to the Software and acquire additional Licenses for all new users. If the Licensee does not inform Annata of an increased number of users to the Software then Annata shall have the right to (i) charge the Licensee for all additional Licenses; and/or (ii) charge the Licensee a penalty fee amounting to any discounts granted by Annata or Partner to the Licensee.
2.8 When the License Terms have been signed, returned to Annata and Annata has confirmed the signed License Terms with Annata’s written confirmation, the Licensee is entitled to install and use the Software thereafter in accordance with these License Terms.
2.9 The License Terms shall supersede any license terms embedded in the Software.
2.10 No proprietary rights. Annata owns and retains all right, title, interest and ownership to the Software including without any limitation all intellectual property rights in and to the Software. Accordingly, no title or ownership of the Software is transferred to the Licensee. Rights to access the Server Software does not give the Licensee any right to implement other Annata patents or other Annata intellectual property in the Software or Devices that access the Server.
2.11 No relationship. The License Terms shall not establish any relationship of partnership, joint venture, employment, franchise or agency. The Licensee shall not have the power to bind or incur obligations on Annata’s behalf.
3) Licensee rights and obligations
3.1 The License granted is only valid provided the Licensee has a valid license agreement with Microsoft for Microsoft Dynamics or similar platform providers on which the Software relies. The Software can only be used in conjunction with the version and update releases of Microsoft Dynamics or similar platforms indicated by Annata, for which the Licensee must have acquired the applicable user rights separately.
3.2 The License Terms apply to the Software, including the media on which the Software is received, if any, and apply to any updates of the Software, supplements, internet-based services and support services for the Software.
3.3 The Licensee with a Perpetual License shall receive updates of the Software subject to the Licensee’s payment of Enhancement Fees. The Licensee with a Perpetual License shall have no right to receive versions and/or updates to the Software if the Licensee ceases payment of Enhancement Fees.
3.4 Subject to the terms and conditions of the License Terms and provided Annata or the Partner has received full payment of all applicable fees from the Licensee, Annata grants the Licensee a limited, non-exclusive, non-transferable, worldwide, terminable, license to internally use, copy and display the License and to permit Licensee’s employees and contractors, to access and use the Software hosted on a Server controlled by the Licensee.
3.5 Academic edition software. Annata does not license a specific academic version of the Software.
3.6 Documentation. Any person that has valid access to the Licensee’s computer or internal network may copy and use the Software and the Documentation for the Licensee’s internal, reference purposes.
3.7 License keys. The Licensee may not duplicate license keys without Annata’s prior written consent.
3.8 Server Software. The Licensee may only use the number of Instances that the Licensee’s License permits.
3.9 Client Software. The Licensee may install an unlimited number of instances of the Client Software. However, the Licensee shall use the Client Software only with the Server Software and for the number of users that the Licensee’s License permits.
3.10 Additional components. If additional components are available, the Licensee may install the additional components the Licensee has licensed for the Product. The Licensee must obtain a separate license for each Product if the Licensee wishes to install an additional component for multiple Products. For additional information and License restrictions regarding additional components, please contact the Partner or Annata directly.
3.11 Term and termination of Subscription License. Term and termination of the Subscription License shall be as follows:
3.11.1 The term of the Subscription License is for a limited period from the date of signing until the Subscription License is terminated. However, the Subscription License cannot be terminated by the Licensee for the first twelve (12) months from the date of signing.
3.11.2 A Subscription License can be terminated by Annata with a fifteen (15) days written notice to the Licensee if:
18.104.22.168 the Licensee does not pay overdue License fees within the given timeframe; and/or
22.214.171.124 the Licensee breaches duties, obligations or responsibilities of the License Terms and the Licensee has not cured such breach within the given timeframe.
3.11.3 Effect of termination of a Subscription License. Upon termination of the License Terms, the Licensee with a Subscription License shall:
126.96.36.199 cease use of the Software and remove all Licensee’s data imported into the Software within fifteen (15) days from the date of termination;
188.8.131.52 pay to Annata all fees payable according to the License Terms;
184.108.40.206 be prohibited to use any Derivative Works created or modified in relation to the Software; and
220.127.116.11 destroy all copies of the Software and for confirmation purpose provide Annata with a declaration to that effect.
3.11.4 If the Licensee uses the Software after termination, the Licensee shall pay Annata a penalty amounting to three (3) times the annual license fee for the Software as would be applicable to the Licensee according to section 2.2. Payment according to this section shall be made by the Licensee to Annata within fifteen (15) days from a written notice from Annata. Notwithstanding, this fixed penalty Annata reserves the right to enforce and/or claim, without further notice, from the Licensee the full amount of damages relating to the Licensee´s use by initiating legal action, including all Annata’s cost due to such a claim.
3.12 Terms relating to Microsoft Dynamics. The Licensee hereby acknowledges the following in regards to the use of Microsoft Dynamic with the Software:
3.12.1 Microsoft disclaims all warranties and liability, whether direct, indirect, incidental or consequential, as a result of the use or the installation of the Software.
3.12.2 These License Terms do not grant Licensee any rights to copy, modify, or distribute the Microsoft Dynamics source code.
3.12.3 Microsoft is not be liable to Licensee in case of the termination of these License Terms.
3.12.4 Microsoft Dynamics may not be (i) used to develop and/or (ii) offered in conjunction with, new applications, databases or tables other than those contained in the Software. However, Licensee may license additional Microsoft Dynamics functionality offered by Microsoft or other authorized third parties.
3.12.5 Termination of Microsoft Dynamics. If the Licensee with a Subscription License terminates the Microsoft Dynamics license the Licensee shall discontinue use of the Software simultaneously. The wind-down process for the Software shall be the same as the wind-down process for Microsoft Dynamics.
4) Additional licensing requirements and/or use rights
4.1 Multiplexing. Hardware, software or any other manual mechanism the Licensee uses to: (i) pool connections; (ii) reroute information; (iii) reduce the number of Devices or users that directly or indirectly access or use the Software; or (iv) reduce the number of Devices or users the Software directly manages, (sometimes referred to as “multiplexing” or “pooling”), does not reduce the number of Licenses the Licensee is required to have.
4.2 Third party hosting. The Licensee may have a third party host the Software on the Licensee’s behalf solely for access by the Licensee. The Licensee may not permit any third-party hosting vendor to allow access to the Software by unaffiliated third parties. The Licensee’s third-party hosting vendor must agree to be bound by the License Terms and the Licensee is liable towards Annata for any breach of the License Terms by the third-party hosting vendor.
4.3 Third party notices. The Software may include third party code that Annata, not the third party, licenses to the Licensee under these License Terms. Notices, if any, for the third-party code are included for the Licensee’s information only.
4.4 License grant for templates. The Licensee may copy and use templates provided with the Software and identified for such use in documents and projects that the Licensee creates. The Licensee may distribute those documents and projects non-commercially and only for internal use.
4.5 Modification disclaimer.
4.5.1 The Licensee may modify the Software only as necessary to use it for the Licensee’s internal business purposes if the Licensee received it in source code form or the Licensee or any third party acting on the Licensee’s behalf have licensed tools from Annata and/or Microsoft that allow the Licensee or that third party acting on the Licensee’s behalf to modify the object code form.
4.5.2 The Licensee may modify or create Derivative Work of the Software and use those Derivative Work, but only with the Software and only for the Licensee’s internal purposes.
4.5.3 The Licensee agrees that Annata is not responsible for any problems that result from modifications made by the Licensee, a Partner, or any other third party acting on the Licensee’s behalf, or any problems that are caused by third party hardware or software.
4.5.4 Annata does not, and will not have any obligation to, provide technical or other support for any modifications made by the Licensee, a Partner or any other third party. Annata does not make any representation, endorsement, guaranty or assurance of the suitability of the Software for the Licensee’s business, the suitability of the Partner or any other third party to create modifications or to implement the modifications or the Software, or that any modification created, implemented, supported and/or serviced by, for or on behalf of the Licensee or any third party will meet the Licensee’s business needs or operate successfully with the Software. No damage resulting from the use of the modifications can be recovered from Annata.
4.5.5 Annata and its Partners are independent entities and Annata is not liable for nor bound by any acts of any Partners.
4.6 Outsourcing Software management. The Licensee may install and use permitted copies of the Software on Servers and other Devices that are under the day-to-day management and control of third parties, provided all such Servers and other Devices are and remain fully dedicated to the Licensee‘s use. The Licensee is responsible for all of the obligations under the License Terms regardless of the physical location of the hardware for which the Software is used.
4.7 Microsoft Dynamics.
4.7.1 The Licensee acknowledges that any terms and Annata obligations (including warranties, indemnification and product release services) provided in the License Terms in respect of the Software shall not apply in respect of Microsoft Dynamics. In this respect, the Licensee acknowledges Microsoft has no responsibility for the Software or any effect that the Software may have on the functionality of Microsoft Dynamics or the Licensee’s system, business or operations.
4.7.2 The Licensee hereby authorizes Annata to share information with Microsoft that is necessary for Annata: (i) to collaborate with Microsoft, (ii) for the Licensee to receive services and communication from Microsoft, and (iii) verify the Licensee’s compliance with the Microsoft Dynamics license terms and/or product terms. The Licensee authorizes Annata to provide its required contact information to Microsoft and authorizes Microsoft to contact the Licensee.
4.8 Complex Software. The Software is a complex computer software. The Software’s performance will vary depending on the Licensee’s hardware platform, software interactions, the configuration of the Software and other factors. The Software is neither fault tolerant nor free from errors, conflicts or interruptions.
5) Scope of License
5.1 The Software is licensed, not sold. These License Terms only give the Licensee certain rights to use the Software. Annata reserves all other rights in and to the Software not expressly granted in these License Terms. Nothing in these License Terms assigns to the Licensee any ownership right in any intellectual property in the Software.
5.2 The Licensee may use the Software only as expressly permitted in these License Terms. In doing so, the Licensee must comply with any technical limitations in the Software that only allow the Licensee to use it in certain ways. The Licensee may only use the Software for the Licensee’s internal business purposes. The Licensee may not:
• work around any technical limitations in the Software;
• attempt to reverse engineer, decompile or disassemble the Software, or otherwise attempt to discern the source code of the Software;
• make more Instances of the Software than permitted according to these License Terms;
• publish the Software for others to copy;
• sell, re-sell, rent, lease, lend or distribute the Software;
• remove, obscure or obfuscate any copyright trademark or other proprietary notice, label or marking on the Software;
• encumber or suffer to exist any lien or security interest on the Software;
• use Annata’s trademarks in the Licensee’s program’s names or in a way that suggests the Licensee´s programs come from or are endorsed by Annata;
• sub-license the Software or any portion thereof; and/or
• use the Software for commercial software hosting services.
5.3 The Licensee’s right to use the Software does not include any license, right, power or authority to:
5.3.1 Create Derivative Work of the Software in any manner that would cause the Software, in whole or in part, to become subject to any of the terms of an Excluded License; or
5.3.2 Distribute the Software or Derivative Work for the Software, in whole or in part, in any manner that would cause the Software to become subject to any terms of an Excluded License.
5.4 To the extent that Affiliates of the Licensee use the Software, the Licensee remains solely responsible towards Annata with respect to the usage of the Software by its Affiliates in accordance with the License Terms.
5.5 The Licensee agrees that to the extent that any applicable mandatory law give the Licensee the right to perform any of the activities prohibited in these License Terms without the consent of Annata to gain certain information about the Software, the Licensee shall first request such information from Annata in writing before exercising any such right and only if and after Annata partly or fully denied such right shall the Licensee exercise his statutory rights.
5.6 Benchmark testing. The Licensee must obtain Annata’s prior written approval to disclose to a third party the results of any benchmark test of the Software.
5.7 Backup-copy. The Licensee may make multiple copies of the Software for backup, development and testing purposes, so long as such copies are not used in production and the development is for the Licensee’s internal use only. The Licensee’s backup copies may be hosted by a third party on the Licensee’s behalf, subject to section 4.2. The Licensee may use copies only to create Instances of the Software.
5.8 Fail-over rights. The Licensee may run multiple passive fail-over Instances of the Licensee’s ERP solution for temporary support.
5.9 License transfer. The Licensee may not transfer the Software to a third party without Annata’s prior written consent, subject to section 4.2. If permitted, there may be additional charges for transferring the Software to a third party.
5.10 Downgrade. The Licensee has no rights to use earlier versions of the Software and Annata is not obligated to supply earlier versions to the Licensee.
6) Annata 365 License Guide
6.1 License guide. The license guide is a dynamic document that governs how each of the Annata Products should be licensed from time to time. The licensing guide changes as the Product or it’s underlaying components develop or evolve. The licensing rules described in the license guide remain fixed until next subscription or Enhancement Fee renewal of the Product. This can be monthly for monthly subscription, annually for annual subscription or Enhancement Fees or when a new version of the Product is delivered to the customer. Please refer to Annata and/or the Partner for details.
7) Support Services
7.1 Annata provides support, premier support and maintenance services for the Software. Please refer to Annata and/or the Partner for details.
7.2 Annata provides translations for the Software in a limited number of countries and regions. Please refer to Annata and/or the Partner for details.
7.3 Additional functionality. Annata may provide additional functionality for the Software. Other license terms and fees may apply in which case the use of any additional functionality for the Software is not permitted unless such license terms and fees are accepted by the Licensee.
7.4 IP Protection Features of third parties. The Software may enable third party intellectual property protection features (IP Protection Features) that restrict the Licensee’s access to third party solutions the Licensee uses, but that are not included with the Software. The Licensee’s use of such third party solutions is governed by the license terms that accompany those solutions. The Licensee agrees that Annata is not responsible for any failures or problems associated with such IP Protection Features. Annata does not, and will not, have any obligation to provide technical or other support for such IP Protection Features. Annata does not make any representation or warranty with regards to the functionality associated with those IP Protection Features.
8.1 The Licensee acknowledges that the Software, the Documentation, the functions, structures, methods, charts, routines, characteristics, patterns, services, functional designs, test results and/or benchmarks, and all other related information are confidential and part of the trade secrets of Annata. The Licensee guarantees the confidentiality of this information and shall ensure that the confidentiality of the information and the intellectual property of Annata is guaranteed.
8.2 Annata is entitled to mention the existence of the License Terms and therefore use the name and logo of the Licensee for marketing and communication purposes. This right shall continue to apply after the possible termination of the License, regardless of the reason for termination.
9) Defence of infringement and misappropriate claims
9.1 The Licensee shall notify Annata, in writing, of any claim or proceeding, actual or threatened, within five (5) days after the Licensee learns of such claim or proceeding and give Annata sole control over its defence and/or settlement. The Licensee shall also notify Annata in writing immediately of all claimed or suspected defects in the Software. All such claims, proceedings, and suspected defects shall be deemed Annata’s Confidential Information.
9.2 The Licensee agrees to provide Annata with reasonable assistance in defending a claim, and Annata will reimburse the Licensee for reasonable out of pocket expenses that the Licensee incurs in providing that assistance. The terms “misappropriation” and “trade secret” are used as defined in the Uniform Trade Secrets Act (USA), except in the case of claims arising outside the United States, in which case “misappropriation” will mean “intentionally unlawful use” and “trade secret” will mean “undisclosed information” as specified in Article 39.2 of the TRIPs agreement.
9.3 Annata assumes no liability for any infringement and/or misappropriation and Annata’s obligations will not apply to the extent that the claim or adverse final judgment is based on (i) the Licensee’s use or distribution of the Software after Annata notifies the Licensee to discontinue use of the Software; (ii) the Licensee’s combining the Software with a non-Annata product, program, hardware, data, business process, or other materials, including third party add-ons or programs; (iii) damages attributable to the value of the use of a non-Annata product, data or business process; (iv) the Licensee altering or modifying the Software, including any modifications by third parties or at the Licensee’s direction; (v) the Licensee distribution of the Software to, or its use for the benefit of, any third party; (vi) the Licensee use of Annata trademark(s) without express written consent to do so or other trademark infringement of the Licensee involving any marking or brand not applied by Annata or involving any marking or branding applied at the request of the Licensee; or (vii) for any trade secret claim, the Licensee acquiring a trade secret (a) through improper means; (b) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (c) from a person (other than Annata) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. The Licensee shall reimburse Annata for any costs or damages that result from these actions.
9.4 If Annata receives information concerning an infringement and/or misappropriation claim related to the Software, Annata may choose, at its expense, in order to make the Software non-infringing, to do one of the following, (i) procure for the Licensee the right to continue to run the Software; (ii) modify the Software; or (iii) replace the Software with a functional equivalent. In case of an infringement and/or misappropriation claim the Licensee shall stop running the infringing version of the Software immediately. Licensee cannot be blocked in its production by this clause. If Annata is to ensure the ongoing services despite infringement and/or misappropriation claim related to the Software then Licensee shall take the responsibility for payment of any and all infringement claims directed at Annata (including cost) due to the continued use of the Software by the Licensee. If, as a result of an infringement and/or misappropriation claim, the Licensee’s use of the Software is enjoined by a court of competent jurisdiction, Annata will, at its option, procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the amount paid for the License and terminate the License.
9.5 If any other type of third-party claim is brought against the Licensee regarding Annata’s intellectual property, the Licensee must notify Annata promptly in writing. Annata may, at its option, choose to treat the claims as being covered by this section.
9.6 Entire liability. The provisions in this section 9 state the exclusive remedy of the Licensee with respect to any infringement and/or misappropriation claims.
10) Limitation and exclusion damages
10.1 The Licensee can recover from Annata only direct damages up to the amount the Licensee paid for the Software in the preceding twelve (12) months from the occurrence of an incident resulting in a claim for damages, except for claims covered by section 9.
10.2 The Licensee cannot recover any other damages, including consequential, lost profits, special, indirect, punitive or incidental damages arising out of or in connection with these License Terms. This limitation applies to: (i) anything related to: (a) the Software, (b) content (including code) on any third party internet sites, and/or (c) third party programs; (ii) claims for breach of agreement, breach of warranty, loss of privacy, loss of opportunity, cost of recovery, loss arising out of use of the Software or damage arising from the Licensee participating in hosting or use of third party products or hardware, guarantee or condition, strict liability, negligence, loss of data, damage to records or data, loss of goodwill, loss as a consequence of a business interruption, loss arising from any infringement or misappropriation claim, and/or any other tort to the extent permitted by applicable law; (iii) the use of the Software or the Documentation or the Licensee installation or importation of the Software however caused and on any theory of liability; (iv) if repair, replacement and/or a refund for the Software does not fully compensate the Licensee for any losses; and/or (v) if Annata should have known about the possibility of the damages.
10.3 The exclusions and limitations stated in this section 10 do not apply with respect to damages arising from the fraud, gross negligence or wilful misconduct.
11) Limited warranty
11.1 Limited warranty. The Software will perform substantially as described in the original Documentation Annata provides for the Software.
11.2 Term of warranty. The limited warranty covers the Software for one (1) year after acquired by the Licensee. If the Licensee receives supplements, updates, or replacement software from Annata during that year, the Licensee will be covered for the remainder of the term of the warranty or thirty (30) days, whichever is longer. To the extent permitted by law, any implied warranties, guarantees or conditions last only during the term of the limited warranty.
11.3 Exclusions from warranty. This warranty does not cover problems caused by the Licensee’s acts (or failures to act), the acts (or failures to act) of others, including but not limited to, modifications or implementations made by the Licensee, a Partner, or any other third party acting on the Licensee’s behalf, or events beyond Annata’s reasonable control.
11.4 Remedy for breach of warranty. Annata will repair the Software, its supplements, updates and/or replacement software supplied by Annata. If Annata cannot repair the Software, Annata will refund up to the amount the Licensee paid for the Software. If Annata cannot repair the supplements, updates and/or replacement software, Annata will refund up to the amount the Licensee paid for them, if any. The Licensee must uninstall the Software and return any Documentation, media and other associated materials to Annata. These are the Licensee’s only remedies for breach of the limited warranty.
11.5 Warranty procedures. In order to invoke the warranty as described above, the Licensee has to submit a written documentation to Annata and/or Partner, with a proof of purchase of the License, if not reflected in Annata’s internal records, in order to make a claim under this warranty within the term of warranty (section 11.2) which: (i) shows beyond doubt that the functionality of the Software substantially deviates from the Documentation; and (ii) that the Software shows a significant defect (i.e. a failure which causes one or more critical functions of the Software not to work resulting in the Software not functioning as a whole).
11.6 No other warranties. The limited warranty is the only direct warranty from Annata. Annata gives no other express warranties, guarantees or conditions. Annata excludes implied warranties of merchantability, fitness for a particular purpose and non-infringement. If the Licensee’s local laws give the Licensee any implied warranties, guarantees or conditions, despite this exclusion, the Licensee’s remedies are described in section 11.4.
12) Audit and compliance
12.1 The Software may include features that provide Annata with information which identifies the number of users accessing the Software, access rights and tasks run by each user compared to the number of Licenses acquired by the Licensee (this includes e.g. telemetry, access and usage reports).
12.2 For Perpetual License the Licensee shall submit access and usage reports to Annata or Partner stipulating the applicable information according to section 2.2 at least once a year starting from the date the Licensee was first granted a License for the Software.
12.3 For Subscription License the Licensee shall submit monthly access and usage reports to Annata or Partner stipulating the applicable information according to section 2.2. The payment of the monthly License fee is based on the information provided according to the access and usage reports.
12.4 Right to verify compliance. During the term of the License and for two (2) years after the termination of the License the Licensee shall keep and maintain documents, records, and other materials relating to the Software and the Licensee performance under these License Terms including, without limitation, reports, orders, invoices, volume reports and records related to acquisition, delivery and, if applicable, destruction of the Software. Annata has the right to verify compliance with these License Terms, at Annata’s expense. The Licensee agrees to provide reasonable cooperation in the event of a compliance audit and shall provide access to the above documents, material, and, if required, access to Licensee’s premises, for the purpose of verification of compliance.
12.5 Verification process and limitations. To verify compliance, Annata will engage an independent accountant from an internationally recognized public accounting firm, which will be subject to a confidentiality obligation. Verification will take place by the independent accountant upon not fewer than thirty (30) days’ notice, during normal business hours and in a manner that does not interfere unreasonably with the Licensee’s operations. As an alternative, Annata can require the Licensee to complete Annata’s self-audit questionnaire relating to the Software and the License.
12.6 Verification frequency. Annata shall be permitted to undertake verification of the Licensee’s use of the Software and compliance to the License Terms. If Annata undertakes verification and does not find license shortage of five percent (5%) or less, Annata will not undertake another verification of the Licensee for at least one year.
12.7 Use of results. Annata will use the information obtained in compliance verification only to enforce Annata’s rights and to determine whether the Licensee is in compliance with the License Terms. By invoking the rights and procedures described above, Annata does not waive its rights to enforce the License Terms or to protect its rights by any other means permitted by law.
12.8 Remedies for non-compliance. If an audit reveals that the Licensee has underpaid fees for the Software, in addition to other remedies provided for in these License Terms, the Licensee shall be invoiced for such underpaid fees, including Enhancement Fees, for all periods which the Licensee was not in compliance with the License Terms. The Licensee’s user Access License shall be deemed the highest applicable Access License if the type of user Access License cannot be ascertained during an audit. The Licensee may also be charged with up to twenty five percent (25%) additional fee as a penalty on all underpaid fees. If the License shortage is five percent (5%) or more, the Licensee must reimburse Annata for the costs Annata has incurred in verification.
13.1 Export restrictions. If the Software is an integrated add-on to Microsoft products, then it is subject to United States export laws and regulations. The Licensee must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users and end use. For additional information, see www.microsoft.com/exporting.
13.2 By signing these License Terms, the Licensee hereby expressly accepts that any customer-specific information received by Annata on the basis of the relationship regulated by these License Terms, i.e. concerning the Software, including Serial No., NACE Code, Name of Licensee, Address, Tel. No., Fax No., E-mail Address, URL, Contact Name and the name of the Licensee’s supplier, may be used internally within Annata only for the purpose of internal administration of the License to the Software.
13.3 Governing law. Regardless of where the Licensee acquires the License for the Software, Icelandic law govern the interpretation of these License Terms, regardless of conflict of laws principles.
13.4 Jurisdiction. In case of dispute and/or claim that arise out of or in connection with these License Terms such disputes or claims shall be resolved by arbitration under the rules of the Nordic Arbitration Centre of the Iceland Chamber of Commerce. However, the Parties may also at their own discretionary choice, refer the dispute to the District Court of Reykjanes, Iceland. Notwithstanding the above Annata shall have the exclusive right to direct any dispute or claim that arise out of or in connection with these License Terms to the courts where the Licensee is domiciled.