DXC SOFTWARE END USER LICENSE AGREEMENT (“EULA”)

1. DEFINITIONS

  • 1.1 “Designated Equipment” means computer hardware and data processing equipment and applicable operating system and database for which the Software is authorized for installation and operation by DXC, including as the case may be, such equipment provided by an authorized cloud or hosted service provider.
  • 1.2 “DXC Technology” including its affiliates and subsidiaries (DXC) as the owner and licensor of the Software and the Intellectual Property Rights in the Software.
  • 1.3 “Intellectual Property Rights” means without limitation, copyright, patent rights, trademarks, design rights or trade secrets embodied in or used in connection with the Software including source code, documentation, scripts or interfaces supplied to the Licensee and owned by DXC or its licensors.
  • 1.4 “Licensee” means the party licensed to use DXC Software subject of this EULA.
  • 1.5 “Maintenance Services” means the right of the Licensee to receive at no additional license fee any new revisions, new releases, updates, service packs, or corrections for the Software when and as they are made available for general distribution.
  • 1.6 “Related Company” means any legal entity that owns and controls 50% or more of the shares of the Licensee; or, any entity of which the Licensee owns and controls 50% or more of the shares, or any entity under common ownership and control with the Licensee.
  • 1.7 “Software” means software modules or utilities of DXC licensed for use with Microsoft Dynamics™ Software supplied for licensed use to the Licensee by DXC or an authorized distributor of DXC for licensed use.
  • 1.8 “Software Fee” means:
    • (a) the fee for licensed use of Software installed at the Licensee’s premises “on premise”; or
    • (b) the subscription fee for limited term licensed use of the Software on a third party hosted or cloud platform “subscription license”; and
    • (c) the initial year Maintenance Services fee for the Software.
  • 1.9 “Users” means those persons authorized by the Licensee to use the Software.

2. GRANT OF LICENSE

  • 2.1 The Licensee’s use of the Software is subject to and governed by the terms set out herein. BY DOWNLOADING, INSTALLING, SUBSCRIBING TO USE, CLICKING ON AN ″ACCEPT″ BUTTON, OR OTHERWISE USING THE SOFTWARE, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF LICENSEE, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND LICENSEE AND USERS TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, SUBSCRIBE TO, ACCESS, CLICK ON AN ″ACCEPT″ BUTTON, OR USE THE SOFTWARE; AND PROMPTLY RETURN ANY UNUSED MEDIA, DOCUMENTATION TO THE PARTY FROM WHOM IT WAS OBTAINED. IF THE SOFTWARE WAS DOWNLOADED, DESTROY ALL COPIES OF THE PROGRAM.
  • 2.2 In consideration of payment of the applicable Software Fee, the Licensee is granted a non-exclusive, non-transferable, license to use the Software on the Designated Equipment at its Locations for its and its Related Companies business data processing purposes. A subscription license is for a limited term access to, and use of the Software by Licensee and its Users in a hosted or cloud solution.
  • 2.3 Excluding for use under a subscription license, the Licensee may make a reasonable number of backup copies of the Software as may be required for reinstallation or archive purposes, disaster recovery or temporary equipment, and / or test and development equipment. Provided however, that at any one time the Software may be used only on one installation for live data processing. The Software may not be transferred, rented, hosted for use by third parties or sub-licensed to third parties, unless with prior written authorization by DXC.
  • 2.4 Except as authorized in writing by DXC or under law the Licensee must not download, transcribe, or translate any part of the Software into any human or computer language, or reverse engineer the Software or use any reverse compilation, or to decompile, disassemble or use any other methods to gain access to the Software source code or any trade secrets embodied in the Software to determine design, structure, concepts and methodology behind the Software, whether to incorporate it within any software product or developed software of the Licensee’s own or any third party’s creation.
  • 2.5 The Software is approved for use with Microsoft Dynamics™ Software and such other third-party application software otherwise expressly authorized by DXC.
  • 2.6 All information provided to DXC by or on behalf of the Licensee or any other information of the Licensee that DXC can have access to as part of providing Services for storage, manipulation, or Processing remains the property of the licensee. The Software may collect information about you and your use of the Software and send that to DXC. DXC may use this information to provide services and improve our products and services.
  • 2.7 To the extent any run-time version of third party developed software (Third Party Software Component) is incorporated under license to DXC in the Software, the Licensee is granted non-exclusive and non-transferable right to use Third Party Software Component solely as combined with the Software and the Licensee must not copy, disassemble or reverse compile the Third Party Software Component or otherwise use the Third Party Software Component for any purpose other than as supplied combined with the Software.

3. SOFTWARE MAINTENANCE

  • 3.1 Maintenance Services and fees are based on a continuing renewable basis. For the initial term and any paid renewal term of Maintenance Services the Licensee will be entitled to receive new releases, updates or revisions of the licensed Software at no additional license fee as and when they are made available for distribution.
  • 3.2 Additional Software modules or Users licensed to the Licensee are supplied for use subject to the terms set out herein commencing from the time of payment of the applicable Software Fee in respect thereof.
  • 3.3 On occasion, applications on which the Software depends (such as Microsoft Dynamics 365, or as specified in Software documentation) may receive updates that might result in incompatibility with the Software. On such occasions, DXC will implement its best efforts to deliver a compatible version of the Software within two months of the dependent application’s update release, which caused the incompatibility; or issue a public statement indicating that the Software or portions of the Software cannot be made compatible.

4. FEES, PAYMENT AND AUDIT

  • 4.1 The Licensee must pay the Software Fee in full on purchase subject to invoice, or in accordance with applicable periodic payments of the subscription fee for subscription use. If Software Fee is not paid by the due date for payment, the license and / or subscription rights granted hereunder may be terminated at the discretion of DXC , and the Licensee will forfeit the right to use the Software.
  • 4.2 Renewal fee(s) for Software Maintenance are due on or before each renewal date. Software Maintenance will be terminated if a renewal fee is not paid by the due date. Any subsequent renewal of Software Maintenance following any lapse period will be subject DXC then current administration fee for lapsed service renewal in addition to the then current fee for Software Maintenance
  • 4.3 Issuing of Software serialization, registration or subscription activation keys is conditional on the Licensee’s payment of the applicable Software Fee to DXC or an authorized distribution partner of DXC.
  • 4.4 DXC or its authorized distributor may conduct an audit or validation to confirm use of the Software complies with the terms of this EULA, and that the authorized number of Users complies with the terms under which the Software is licensed. If the result of any such audit confirms Licensee’s use does not comply with the terms of license, DXC or its authorized distributor will issue a written notice to the Licensee specifying the non-compliance with terms of license, and, as the case may be, the amount required for any shortfall in the Software Fee associated with such non-compliance. The Licensee will have thirty days from the date of receipt of any such notice to remedy the compliance failure and to pay the shortfall in Software Fee (if any required) associated with such non-compliance.

5. WARRANTIES

  • 5.1 DXC warrants that it owns the Intellectual Property Right in the Software or is otherwise authorized under license to grant licenses to use the Software subject of this EULA.
  • 5.2 DXC warrants the Software is not subject of any third party Intellectual Property Rights infringement claim.
  • 5.3 DXC warrants the Software:
    • i. as supplied to Licensee whether by digital download, on media or access, or by subscription access, is tested free of known viruses and free malicious, destructive, harmful or disabling code or routine;
    • ii. will be supplied on media or downloaded free from defects in materials and workmanship under normal use; and,
    • iii. will function without material defect or error in accordance with the functionality and operation specified in documentation supplied by DXC for the Software. The Software is not warranted as error-free or that its operation will be interruption-free.
  • 5.4 In the event that defects in materials and workmanship are confirmed, DXC will at its option and cost replace or repair the Software, media or documentation.
  • 5.5 The Licensee will be entitled to a refund of the Software Fee paid by the Licensee if, within ninety (90) days from the date of supply of the Software, DXC is notified the Software does not function in accordance with the functionality and operations specified and documented for the Software by DXC.
  • 5.6 DXC does not warrant the Software will be error-free or that its operation will be interruption-free.
  • 5.7 DXC does not warrant the security, or continuity of use of Software on a subscription basis in a hosted service or cloud environment. DXC accepts no liability in connection with claims by Licensee or third parties for loss or damage resulting from the services provided by hosted service or cloud service providers.
  • 5.8 To the extent that any trade practices statutes or regulations in force in any jurisdiction express or imply conditions and warranties which cannot be excluded, restricted, or modified except to a limited extent, these terms will be read and interpreted subject to any such provisions. The liability of DXC in respect of any such statutory provisions will be limited to:
    • a. resupplying the Software
    • b. refunding the Software Fee paid for use of the Software
  • 5.9 Except as provided herein, DXC provides no other express or implied warranties, representations or conditions of any kind. DXC disclaims any implied warranties, representations or conditions (howsoever arising), including warranties of merchantability, merchantable quality, fitness for a particular purpose, satisfactory quality, title or non-infringement.

6. LIABILITY

  • 6.1 Except as provided under clause 8 DXC's aggregate liability to the licensee in respect of any one or more separate claims arising with respect to the licensee’s use of the software (whether for negligence or otherwise) is limited in aggregate to the amount of the software fee paid by the licensee.
  • 6.2 Except for liability arising as a result of licensee’s breach of clause 2 licensee’s liability in respect of a breach of this EULA is limited to the amount of the software fee.
  • 6.3 DXC will not be liable irrespective of the cause of action for indirect, special, incidental, punitive or consequential damages and any damages for any loss of business, loss of profit, loss of business opportunity, loss of data, loss of good will, computer failure, malfunction or work stoppage regardless of whether DXC is informed of the possibility of such loss or damage.

7. INTELLECTUAL PROPERTY RIGHTS PRESERVED

  • 7.1 The Software is license not sold. DXC does not grant, assign or transfer to the Licensee any Intellectual Property Rights to or interest in the Software source code, routines, methodologies, or trade secrets in the Software and any associated documentation. Ownership of all Intellectual Property Rights is preserved solely and exclusively for DXC and its licensors.

8. INDEMNITY

  • 8.1 While the Licensee is using the Software without modification or combination with another computer program other than as expressly authorized by DXC, DXC will defend any action any pay any reasonable legal expenses incurred and damages awarded (as the case may be) in respect of any claim that the Licensee’s use of the Software as supplied and authorized by DXC infringes the intellectual property rights of a third party, provided that DXC is promptly notified of any claim, and is given exclusive control of the defense and negotiation of the settlement or compromise of any claim. DXC’s obligation under this indemnity will be discharged without further liability if, without cost to the Licensee, DXC obtains the right for the Licensee to continue using the Software.

9. ENTIRE AGREEMENT, NON-ASSIGNMENT, WAIVER, SEVERABILITY

  • 9.1 This is the entire agreement between DXC and the Licensee with respect to license and maintenance services for the Software. The terms and conditions contained herein supersede and take precedence over all other oral and written communications and agreements between the parties. The terms and conditions contained herein can be modified only in writing and signed by DXC and the Licensee.
  • 9.2 Other than to a Related Company, the license rights granted hereunder may not be assigned or transferred by the Licensee without the prior written consent of DXC. The terms contained herein will be binding on and continue to the benefit of the successors in interest of the parties. Any assignee, as a condition of assignment, shall agree in writing to be bound by the terms and conditions of this EULA.
  • 9.3 No forbearance or delay by a party in enforcing its rights or requiring the performance of any obligation hereunder will prejudice or restrict the rights of the party and no waiver of any such rights or any claim in respect of a breach of a term or condition hereunder will be deemed to be a continuing waiver or a waiver of any other right or of any subsequent breach.
  • 9.4 If any word, term or provision is determined to be void, illegal, or unenforceable then the same will be severed without affecting the validity or enforceability of all remainder words, terms and provisions.

10. COMPLIANCE WITH LAW

  • 10.1 Licensee must comply with all domestic and international export laws and regulations that apply to software and software use including restrictions on destinations of end users and legal requirements applicable to Licensee’s Users’ use in all international jurisdictions.

11. JURISDICTION AND GOVERNING LAW

  • 11.1 These General Terms and Conditions and each Contract will be governed by the laws of the country, state or territory of incorporation of DXC and the courts of that locale will have jurisdiction, however DXC may bring suit for payment in the country where the Licensee named on the Contract is located. The Licensee and DXC agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.

12. TERM AND TERMINATION

  • 12.1 The license to use the Software on premise is perpetual and may be terminated only with notice from DXC or an authorized Reseller if the Licensee materially breaches the terms of this EULA, including by failure to pay the applicable Software Fee.
  • 12.2 The Licensee’s right to use the Software on premise survives termination of Maintenance Services for the Software for any reason, or termination of any ancillary service agreement between Licensee and DXC or an authorized Reseller.
  • 12.3 On termination of the EULA for an on premise license, the Licensee will cease use of the Software and will delete the Software from its live data and information processing systems.
  • 12.4 A subscription license terminates at the expiration of the agreed subscription period or otherwise in accordance with the terms of this EULA. Use of and access to the Software will terminate at the expiration of the term of the subscription license.

13. GENERAL TERMS

  • 13.1 Words importing the singular include the plural and vice versa, words importing any gender include all other genders and reference to a person includes a person, firm, corporation, and government authority.
  • 13.2 The words “including”, or “includes” means including but not limited to or including without limitation.
  • 13.3 Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
  • 13.4 Headings are inserted for convenience only and do not affect the construction or interpretation of any term or condition.