1. PARTIES OF THIS AGREEMENT
1.1. This Qt Frame Agreement—comprised of these general terms together with the appendices attached hereto, (hereinafter “Agreement”) is made by and between:
The Qt Company, as defined below (hereinafter ”The Qt Company”)
Customer name (hereinafter “Customer"):
Business Id (e.g. VAT or EIN number):
1.2. The parties above are hereinafter individually referred to as a “Party” and collectively as the “Parties”.
2. STRUCTURE AND OBJECT OF THE AGREEMENT
2.1. The Parties have entered into this Agreement to agree on the terms and conditions applicable to The Qt Company’s delivery of products and services (“Services”) to Customer.
2.2. This Agreement is comprised of the following components:
2.3. Any and all Services purchased shall be specified in, and agreed upon between, the Parties under a separate purchase order, statement of work, quote, or similar document (”Purchase Document”). Each Purchase Document concluded under this Agreement shall include a reference to this Agreement and be governed by this Agreement.
3.1. “Affiliate” of a Party shall mean an entity (i) which is directly or indirectly controlling such Party; (ii) which is under the same direct or indirect ownership or control as such Party; or (iii) which is directly or indirectly owned or controlled by such Party. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty percent (50 %) or more of the votes in such entity, is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
3.2. “Contractor” shall mean third-party consultants, distributors and contractors performing services to Customer under an applicable contractual arrangement.
3.3. “Customer” shall mean the individual or legal entity specified in Section 1 above, that is a Party to this Agreement.
3.4. “Force Majeure Event” shall have the meaning set forth in Section 11.7.
3.5. “Licensed Software” shall mean The Qt Company’s commercial software product which is licensed for use by Customer under this Agreement and corresponding Service Terms. Licensed Software shall include, if and to the extent applicable and specified in the applicable relevant Service Terms, corresponding online or electronic documentation, associated media and printed materials, including the source code, and example programs. The Qt Company may in the course of its development activities, at its free and absolute discretion and without any obligation to send or publish any notifications to Customer or in general, make changes, additions or deletions in the components and functionalities of the Licensed Software, provided that no such changes, additions or deletions will affect the already released version of the Licensed Software, but only upcoming version(s). Licensed Software is commercial computer software, developed at private expense and offered to the public under standard commercial terms.
3.6. “Professional Services” shall mean The Qt Company’s professional-, consulting-, training- and/or project services delivered to Customer under this Agreement and specified in a Purchase Document.
3.7. “Support” shall mean maintenance and support services provided by The Qt Company to assist Customer in using the Licensed Software, as further specified in the Appendix for Support Terms.
3.8. “The Qt Company” shall mean:
4. PRICES AND PAYMENT
4.1. The Qt Company agrees to make Services available to Customer subject to the prices set forth in the Appendix for Pricing. In the event that the Appendix for Pricing does not include a price for certain Services, the applicable price shall be the price agreed by the Parties in the respective Purchase Document.
4.2. All prices are exclusive of value added tax or other taxes, levels, or duties. Value added tax as well as other possible public charges imposed by authorities shall be added to the prices.
4.3. All fees under this Agreement are non-cancellable and non-refundable.
4.4. All fees under this Agreement shall be paid by Customer no later than thirty (30) days from the date of the applicable invoice from The Qt Company.
4.5. Unless otherwise agreed or provided in the respective Service Terms or Purchase Document, The Qt Company will invoice fees for:
4.5.1. Licensed Software and Support in advance upon conclusion of the Purchase Document, and
4.5.2. Professional Services monthly in arrears after the Service has been performed.
4.6. A late payment charge of the lower of: (a) one percent (1%) per month; or (b) the highest interest rate stipulated by applicable law, shall be charged on any unpaid balances that remain past due and which have not been disputed by Customer in good faith within thirty (30) days of receipt of invoice from The Qt Company.
4.7. The Qt Company may either (i) invoice Customer based on existing agreement, (ii) request Customer to place a purchase order corresponding to a quote by The Qt Company, or (iii) use Customer’s stored Credit Card information to automatically charge the Customer for the relevant Renewal Term.
4.8. Unless and to the extent otherwise agreed in the Appendix for Pricing or in the Purchase Document, The Qt Company shall be entitled to adjust the prices set forth in the Appendix for Pricing by notifying Customer of the change in writing at least sixty (60) days before the effective date of the change. The change shall not affect the current pricing term of Services agreed upon before the effective date of the change.
5.1. The Parties shall keep confidential, and shall not use or disclose to any unauthorized third parties, the existence and content of this Agreement as well as any Confidential Information received from the other Party or otherwise learned in connection with the Agreement or the performance of the Services, without the prior written consent of the other Party. Confidential Information shall mean information that is designated as confidential or that would be reasonably understood to be confidential given the circumstances of disclosure and the nature of the information. The Parties shall not use Confidential Information received from the other Party for any other purposes than the performance of the Agreement or the fulfilment of their rights and obligations hereunder.
5.2. Each Party shall limit access the other Party’s Confidential Information only to those of its employees, subcontractors, Contractors, Affiliates or financial or legal advisors who necessarily need access to the Confidential Information for the proper performance of the Party’s rights and obligations under the Agreement. Each Party shall ensure that the persons receiving Confidential Information of the other Party are bound by confidentiality obligations not less restrictive than those stipulated herein.
5.3. Each Party shall protect the confidentiality of the other Party’s Confidential Information with at least the same degree of security as it exercises to its own confidential information, but no less than a standard of reasonable care.
5.4. The confidentiality obligation stipulated herein shall not be applied to material and information which:
5.5. Each Party shall, upon request of the other Party at any time, including upon termination, cancellation or expiry of the Agreement, promptly destroy or deliver to the other Party any and all the documents, files, copies and material containing Confidential Information of the other Party. Notwithstanding the foregoing, a Party may retain one copy of the Confidential Information in a secure location, if and solely to the extent required to comply with applicable laws or regulations. Any Confidential Information stored in electronic back-up form shall be rendered inaccessible and destroyed in accordance with standard back-up procedures.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. Unless and to the extent expressly provided in the respective Service Terms, this Agreement carries no assignment or license to the intellectual property rights of either Party and all such rights are and shall remain the exclusive property of the Party to whom such rights are vested under applicable law at the signing of this Agreement or thereafter.
6.2. Where The Qt Company’s delivery includes any materials owned by a third party, such third party materials shall be governed in all respects by the applicable license terms of such third-party right holders. The Qt Company shall duly inform the Customer whenever such third party materials are included in the Services and of applicable license terms to be followed by the Customer in using such third party materials.
7. FEES AND ORDERING
7.1. Services Fees. Services Fees are described in the Purchase Document.
7.2. Ordering Services.
8. LIMITED WARRANTY AND WARRANTY DISCLAIMER
8.1. The Qt Company hereby represents and warrants that: (i) it has the power and authority to grant the rights and licenses granted to Customer under this Agreement; (ii) the Licensed Software will operate materially in accordance with its specifications (as set forth in the applicable product documentation or, where relevant, program description); (iii) Professional Services and Support will be performed in a professional, workmanlike manner pursuant to the Agreement; and (iv) during the ten years prior to the effective date of this Agreement, there have not been any claims alleging that the Licensed Software has infringed any intellectual property rights of a third party and, to the knowledge of The Qt Company as of the effective date of this Agreement, no such infringement exists. These warranties do not apply to issues arising from, or relating to, any third-party materials or Customer’s use of the Licensed Software in violation of applicable law or the terms of this Agreement.
8.2. Except to the extent set forth above, the Services are delivered to Customer "as is" and to the maximum extent permitted by applicable law, exclusive of other warranties, whether express, implied, or otherwise. Customer’s sole and exclusive remedy and The Qt Company’s entire liability for deficiencies or errors in the Services shall be limited, at The Qt Company’s option, to correction of the error, replacement of the Services, re-performance of the Service or return of the applicable fees paid for the defective Service for the time period during which Customer was not able to utilize the Service as agreed.
9. LIMITATION OF LIABILITY
9.1. EXCEPT FOR (I) CASES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, (II) A BREACH OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (III) WHERE REQUIRED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF BUSINESS OR GOODWILL OR ANY OTHER INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE COST, DAMAGES OR EXPENSE OF ANY KIND, HOWSOEVER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
9.2. EXCEPT FOR (I) CASES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, (II) A BREACH OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE FEES PAID OR PAYABLE TO THE QT COMPANY BY CUSTOMER FOR THE RESPECTIVE LICENSED SOFTWARE OR SERVICE GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO CUSTOMER’S OBLIGATION TO PAY THE APPLICABLE FEES CORRESPONDING TO ITS ACTUAL USE OF LICENSED SOFTWARE OR SERVICES.
10. TERM AND TERMINATION
10.1. This Agreement shall enter into force upon signing by both Parties and is effective as of the last date of signature.
10.2. This Agreement shall remain in force until further notice and may be terminated without cause by either Party by no less than three (3) months’ prior written notice to the other Party.
10.3. Termination of a particular Purchase Document and the Services governed thereunder shall be stipulated under the applicable Service Terms.
10.4. Either Party may terminate this Agreement with immediate effect, if the other Party:
10.5. Termination of this Agreement shall, as such, have no effect on the validity of any Services ordered and agreed prior to the effective date of such termination, and such Services shall continue to remain in force pursuant to applicable Service Terms (including the terms of this Agreement) for the remainder of the duration of the applicable Service validity term.
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
11.2. Where this Agreement is concluded with The Qt Company, Inc., a Delaware corporation, the Parties agree that this Section 10.2 will apply. This Agreement will be governed by, and construed in accordance with the laws of the State of California and any controlling United States federal law. Any dispute, controversy or claim arising out of or relating to this contract, including the formation, interpretation, breach or termination thereof, and whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of one arbitrator. The place of arbitration will be San Francisco, California, USA. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This Section 10.2 shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding the foregoing, any action by The Qt Company solely to collect license or other fees hereunder may be brought in any court of competent jurisdiction.
11.3. Where this Agreement is concluded with The Qt Company, Oy., a Finnish company, the parties agree that this Section 10.3 will apply. This Agreement shall be construed and interpreted in accordance with the laws of Finland, excluding its choice of law provisions. All disputes arising out of or in connection with this Agreement shall be finally settled in accordance with the laws of Finland, excluding its choice of law provisions. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The place of arbitration will be Helsinki, Finland. The language to be used in arbitral proceedings will be English. This Section 10.3 shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
12.1. No Assignment. Customer shall not be entitled to assign or transfer all or any of its rights, benefits and obligations under this Agreement except in case of sale of relevant business or assets or otherwise with prior written consent of The Qt Company, which shall not be unreasonably withheld or delayed. The Qt Company shall be entitled to freely assign or transfer any of its rights, benefits or obligations under this Agreement.
12.2. Surviving Sections. Any terms and conditions that by their nature or otherwise reasonably should survive termination of this Agreement shall so be deemed to survive.
12.3. Entire Agreement. This Agreement, its Appendices and any applicable Purchase Documents constitute the complete agreement between the Parties and supersedes all prior or contemporaneous discussions, representations, contracts (including prior License Agreements and similar prior agreements), and proposals, written or oral, with respect to the subject matters discussed herein.
12.4. Subcontractors. The Qt Company may utilize subcontractors in the performance of Services under this Agreement, provided that The Qt Company remains responsible for the performance of the Services and compliance with this Agreement, as well as ensuring that subcontractors are required to abide by relevant restrictions (e.g., confidentiality) set forth in this Agreement.
12.5. Modifications. No modification of this Agreement shall be effective unless contained in a writing executed by an authorized representative of each Party. No standard terms and conditions or provisions of any Customer purchase order or other ordering form that Customer may use in connection with the acquisition of Services will modify or affect this Agreement, the parties agree that any such terms and conditions are void with no legal effect.
12.6. Affiliate Orders. Customer Affiliates may purchase Services via this Agreement as follows:
12.7. Force Majeure. Neither Party shall be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of act of God, terrorist attack or other similar unforeseeable catastrophic event that prevents either Party for fulfilling its obligations under this Agreement and which such Party cannot avoid or circumvent (“Force Majeure Event”). If the Force Majeure Event results in a delay or non-performance of a Party for a period of three (3) months or longer, then either Party shall have the right to terminate the relevant Purchase Document and Services thereunder with immediate effect without any liability (except for the obligations of payment arising prior to the Force Majeure Event) towards the other Party.
12.8. Notices. Any notice given by one Party to the other shall be deemed properly given and deemed received if specifically acknowledged by the receiving Party in writing or when successfully delivered to the recipient by hand, fax, or special courier during normal business hours on a business day to the addresses specified for each Party in this Agreement. Each communication and document made or delivered by one Party to the other Party pursuant to this Agreement shall be in the English language.
12.9. Attorney Fees. The prevailing Party in any action to enforce this Agreement shall be entitled to recover its attorney’s fees and costs in connection with such action.
12.10. Privacy and Security. The Parties commit to and comply with their respective applicable obligations under the privacy and security terms set forth in the Privacy and Security Appendix and relevant Appendices attached hereto.
12.11. Feedback. Customer agrees that, from time to time, The Qt Company, may request feedback from Customer regarding the Services (“Feedback”). Customer may choose to provide Feedback and agrees that The Qt Company may freely use, copy, disclose, and exploit any Feedback. No Feedback will be considered Customer Confidential Information unless explicitly agreed otherwise between the Parties.
12.12. Export Control. Customer acknowledges that the Services, or portions thereof, may be subject to export control restrictions under the applicable laws of respective countries. Customer shall fully comply with all applicable export license restrictions and requirements, economic sanctions restrictions, as well as with all laws and regulations relating thereto, and shall procure all necessary governmental authorizations, including without limitation, all necessary licenses, approvals, permissions, or consents, where necessary (e.g., for re-exportation of the Redistributables, Applications and/or Devices, each as defined in the relevant Service Terms).
12.13. Severability. 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 or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
13.1. The following appendices form an integral part of this Agreement. In case of a discrepancy between this Agreement and any of its Appendices, this Agreement shall prevail. In case of discrepancies between the Purchase Document(s) and this Agreement or applicable Service Terms, the terms of this Agreement or the applicable Service Terms shall prevail, except in cases where an express deliberate deviation from the terms of this Agreement or applicable Service Terms has been concluded pursuant to Section 2.3 hereof, in which case the Purchase Document shall prevail.