Annata 365 for Microsoft Dynamics
ANNATA SOFTWARE LICENSE TERMS
The Licensee shall have the rights set out below provided the Licensee complies with the following license terms (the “Terms”).
By installing, having installed, or using the Software (as defined below), the Licensee accepts the Terms and any subsequent changes to the Terms relating to the Software. If the Licensee does not accept and/or comply with the Terms and/or any changes to the Terms, the Licensee must stop using the Software and is prohibited from installing, having installed or using the Software.
The headings of the 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 the subscription access license (SL) for the Software.
- “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.
- “Licensee’s software” means the software, including web browsers or similar software, which allows a Licensee’s user or a Licensee’s 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.
- “Excluded License” means any license that requires, as a condition of use, modification and/or distribution that such software or other software combined and/or distributed 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 Licensee’s tenant or mix of both.
- “License” means the subscription license to use the Software.
- “Licensee” means the party stipulated on the first page of these Terms and the Licensee’s Affiliates.
- “Microsoft” means Microsoft Corporation.
- “Microsoft Dynamics” means Microsoft Dynamics 365 and Microsoft Power Platform.
- “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.
- “Product” means Annata intellectual property and License objects as stand-alone products or add-ons to other products such as Microsoft Dynamics, Microsoft Azure or similar platforms.
- “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.
- “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).
2. License grant
2.1 The License to use the Software shall be purchased from Annata and/or a Partner.
2.2 License model. The Software may be licensed based on the following:
- the number of Instances and/or Server Software of Products that the Licensee runs;
- the number and types of Access Licenses of the Licensee’s users and/or Devices that access the Products; and
- the degree of access to Server Software functionality and the tasks enabled by the Licensee’s users and/or Devices.
2.3 The Software. The Software may include the following:
- Server Software;
- Licensee’s software that can be installed or is able to 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 subscribed under these Terms. 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 may be built for.
2.6 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 acceptance and compliance to these Terms.
2.7 When these Terms have been signed, returned to Annata and Annata has provided written confirmation of its receipt of the signed Terms, the Licensee is entitled to install and use the Software thereafter in accordance with these Terms.
2.8 These Terms shall supersede any other terms embedded or may be embedded in the Software.
2.9 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. The Licensee’s ability to access the Server Software does not grant the Licensee any right to access and/or use any Annata Product and/or Software premised in such Server Software, unless otherwise permitted in writing by Annata.
2.10 No relationship. These Terms shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the Parties. 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 and active license 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 from time to time, for which the Licensee must have acquired the applicable user rights separately.
3.2 These Terms apply to the Software, including the media on which the Software is received, if any, and continue to apply to any updates of the Software and supplements for the Software provided by Annata from time to time.
3.3 Subject to the terms and conditions of these 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 for the Licensee’s legitimate business purposes.
3.4 Documentation. Any person that has valid access to the Licensee’s computer or internal network may copy and/or use the Software and the Documentation for the Licensee’s internal purposes.
3.5 License keys. The Licensee may not duplicate license keys without Annata’s prior written consent.
3.6 Server Software. The Licensee may only use the number of Instances that the Licensee’s License permits.
3.7 Additional components. If additional components to the Software or a Product become available, the Licensee may only install the additional components which the Licensee has obtained a license for that Software or Product. The Licensee must obtain a separate license for each Product if the Licensee wishes to install an additional component for multiple Products which it has subscribed for. For additional information and License restrictions regarding additional components, please contact the Partner or Annata directly.
3.8 Terms relating to Microsoft Dynamics. The Licensee hereby acknowledges the following with regards to the use of Microsoft Dynamics in conjunction with the Software:
- 3.8.1 These Terms do not grant Licensee any rights to copy, modify, or distribute the Microsoft Dynamics source code or any other relevant Microsoft products that the Software relies on.
- 3.8.2 If the Licensee terminates the license for Microsoft Dynamics or similar platforms the Software may be built for and does not replace it with a valid license for Microsoft Dynamics or such similar platforms, the Licensee’s use of the Software will simultaneously discontinue and the License can terminate, subject to the termination provisions at section 3.9. The wind-down process for the Software shall subject to the wind-down process for Microsoft Dynamics or similar platforms the Software may be built for.
4. Term and termination of License
4.1 The term of the License will take effect from the date of signing of these Terms until the License is terminated. However, the License cannot be terminated by the Licensee for the first twelve (12) months from the date of signing these Terms. Following this period, the term of the License and these Terms will automatically renew for twelve (12) months, unless the Licensee gives Annata a notice of termination three (3) months prior to such automatic renewal.
4.2 A License can be terminated by either party giving thirty (30) days’ prior written notice in accordance with the following:
- 4.2.1 by Annata, if the Licensee does not pay overdue License fees within fifteen (15) days’ of receipt of such written notice requesting for payment of such overdue License fees or if the Licensee rejects any subsequent changes, amendments and/or updates to the Terms relating to the Software, as Annata may communicate to the Licensee from time to time; and/or
- 4.2.2 by either party, if the other party materially breaches duties, obligations or responsibilities of these Terms and the Licensee has not cured such material breach within thirty (30) days of receipt of such written notice indicating the nature of the breach to be cured.
4.3 Effect of termination of License. Upon termination of these Terms, the Licensee shall:
- 4.3.1 cease use of the Software and remove all of its data imported into the Software within fifteen (15) days from the date of termination;
- 4.3.2 pay to Annata all fees payable according to these Terms;
- 4.3.3 be prohibited to use any Derivative Work created or modified in relation to the Software;
- 4.3.4 destroy all copies of the Software and for confirmation purposes, provide Annata with a written declaration to that effect; and
- 4.3.5 regardless of the aforementioned, the Licensee shall, with the prior written approval of Annata, have the right to extend the use of the Software, for one (1) month, subject to payment of License fees for the use of the Software during that extended period. All use of the Software during the extended period according to this section shall continue to be subject to these Terms, which shall survive termination for the purpose of this section. The Licensee shall continue to be responsible for all breaches of these Terms, post-termination of this License.
4.4 Subject to section 4.3.5, if the Licensee continues to use 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 thirty (30) days’ 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 losses and/or damages relating to the Licensee´s continued use by initiating legal action, including recovering all Annata’s cost incurred due to such a claim.
5. Additional licensing requirements and/or use rights
5.1 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, (referred to as “multiplexing” or “pooling”), shall not reduce the number of Licenses the Licensee is required to subscribe for.
5.2 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 shall not permit any third-party hosting vendor to allow access to the Software by unauthorised or unaffiliated third parties. The Licensee’s third-party hosting vendor must agree to be bound by these Terms and the Licensee is liable towards Annata for any breach of these Terms by such third-party hosting vendor.
5.3 Third party notices. The Software may include third party code that Annata, not the third party, licenses to the Licensee under these Terms. Notices, if any, for the third-party code are included for the Licensee’s information only.
5.4 Modification disclaimer.
- 5.4.1 The Licensee may modify the Software using code extensions on a non-commercial basis and solely to the extent necessary for its internal business purposes.
- 5.4.2 Provided that the Licensee or any third party acting on its behalf has obtained licensed tools from Annata and/or Microsoft, the Licensee or such third party acting on the Licensee’s behalf may use code extensions to the Software for the Licensee’s internal business purposes.
- 5.4.3 The Licensee may modify or create Derivative Work of the Software and use such Derivative Work only with the Software on a non-commercial basis and solely for the Licensee’s internal business purposes.
- 5.4.4 The Licensee agrees that Annata shall not be responsible for anything resulting from modifications made by the Licensee, a Partner, or any other third party acting on the Licensee’s behalf, or anything caused by third party hardware or software.
- 5.4.5 Annata shall not be obligated to provide any form of support for any modifications made by the Licensee, a Partner or any other third party. Annata disclaims any representation, endorsement, guarantee or assurance of the suitability of the Software for the Licensee’s business purposes, 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.
- 5.4.6 Annata may use third party components as part of the development of its Software, which may be subject to separate third party license terms that are independent from these Terms. In the event the Licensee modifies or attempts to modify such third party components, the Licensee shall remain liable to such third party for, and indemnify Annata from, any loss and/or damage arising from such modification or attempted modification.
- 5.4.7 Annata and its Partners are independent entities and Annata shall not be liable for nor be bound by any acts or omissions of any Partners.
5.5 Outsourced 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 and shall remain responsible for all of the obligations under these Terms regardless of the physical location of the hardware upon which the Software is used.
5.6 Microsoft Dynamics.
- 5.6.1 The Licensee acknowledges that any terms and Annata obligations (including warranties, indemnification and product release services) provided in these 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.
- 5.6.2 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.
6. Scope of License
6.1 The Software is licensed, not sold. These 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 Terms. Nothing in these Terms assigns to the Licensee any ownership right in any intellectual property in the Software.
6.2 The Licensee may use the Software only as expressly permitted in these Terms. In doing so, the Licensee must comply with any technical limitations in the Software that only allow the Licensee to use it in specific ways which the Software was designed for. 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;
- not access and/or use any part of the Software in order to build a product or service which competes with the Software;
- make more Instances of the Software than permitted according to these 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 are associated, 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.
6.3 The Licensee’s right to use the Software does not include any license, right, power or authority to:
- 6.3.1 Create Derivative Work of the Software in any manner that would enable the Licensee to substitute or remove the Software, in whole or in part;
- 6.3.2 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
- 6.3.3 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.
6.4 To the extent that Affiliates of the Licensee use the Software, the Licensee remains solely and wholly responsible towards Annata with respect to the usage of the Software by its Affiliates in accordance with these Terms.
6.5 The Licensee agrees that to the extent that any applicable mandatory law gives the Licensee the right to perform any of the activities prohibited in these 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 denies such right shall the Licensee be entitled to exercise its statutory rights.
6.6 License transfer. The Licensee may not transfer the Software to a third party without Annata’s prior written consent, subject to section 4.2 and to any mutually agreed charges for such transfer.
6.7 Downgrade. The Licensee shall not use earlier versions of the Software and Annata is not obligated to supply earlier versions of the Software to the Licensee.
7. Annata 365 License Guide and Support Services
7.1 License guide. The license guide is a dynamic document that governs how each Product is licensed from time to time. The Licensee acknowledges and accepts that the license guide may evolve and change over time as the Product or its underlying components continue to develop.
7.2 The licensing described in the license guide shall remain in effect for the duration of the licensing period which the Licensee subscribes to, until the Licensee’s subsequent renewal of its subscription to the Product. For the avoidance of doubt, the validity of such licensing which the Licensee subscribes to can apply on:
- a monthly basis for monthly subscriptions;
- annually for annual subscriptions;
- any other period as mutually agreed and separately recorded in a separate agreement between Annata and the Licensee; or
- when the Licensee subscribes to a newer or updated version of the Product.
Please refer to Annata and/or the Partner for more details on the license guide.
7.3 Subject to section 10 of these Terms, the Licensee is entitled to a limited and specific level of support allocated to its subscription of the License for the Software during the warranty period. The Licensee may elect to subscribe to additional and improved levels of support subject to payment of additional fees to Annata. Please refer to Annata and/or the Partner for more details on the levels of support services available.
7.4 Additional functionality. Annata may provide additional functionality for the Software. Other license terms and additional fees may apply in which case the use of any such additional functionality for the Software shall not be permitted unless such license terms and additional fees are accepted by the Licensee.
8.1 The Licensee acknowledges and agrees that the Software, Documentation, functions, structures, methods, charts, routines, characteristics, patterns, services, functional designs, test results and/or benchmarks, and all other related information as contemplated under these Terms (“Confidential Information”) are confidential and form part of Annata’s trade secrets and proprietary information. The Licensee shall uphold and guarantee the confidentiality of all such Confidential Information and shall ensure that the confidentiality of the Confidential Information and the intellectual property of Annata is protected and upheld to the highest standard of care and in any event, no less than the standard of care which the Licensee adopts towards its own confidential information and intellectual property.
8.2 With Licensee’s prior written approval (which shall not be unreasonably delayed or withheld), Annata is entitled to mention the existence of these Terms and therefore use the name and logo of the Licensee for marketing and communication purposes.
9. Defence of infringement
9.1 Subject to section 8.4, Annata will at its own cost defend Licensee from and against actions, proceedings, claims and demands that arise out of or relate to a third party alleging that the Software infringes any intellectual property rights and will indemnify Licensee for all established and proven damages, reasonable costs and expenses, including attorneys’ fees.
9.2 The Licensee shall immediately notify Annata, in writing, of any claim or proceeding, actual or threatened after the Licensee learns of such claim or proceeding and agrees to give Annata sole control over its defence and/or settlement. All such claims and proceedings which the Licensee may encounter shall be deemed Confidential Information and subject to section 7 of these Terms. 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 may incur in providing such assistance.
9.3 Annata assumes no liability for any infringement claims (“IP Claim”) and Annata’s obligations will not apply to the extent that the IP Claim or any adverse final judgment is based on: (i) the Licensee’s continued use or distribution of the Software despite Annata notifying the Licensee to discontinue use of the Software; (ii) the Licensee 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 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’s distribution of the Software to, or its use for the benefit of, any third party; (vi) the Licensee’s use of Annata’s trademark(s) without express written consent to do so or any other trademark infringement of the Licensee involving any trademark not applied by Annata or involving any trademark 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 fully indemnify Annata for any losses and/or damages that arise from these actions.
9.4 If Annata receives information concerning an IP Claim related to the Software, Annata may choose, at its sole cost and 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 use the Software; (ii) modify the Software; or (iii) replace the Software with a functional equivalent. In case of an IP Claim the Licensee shall stop using the infringing part of the Software immediately. However, if the Licensee requires the use of and continues the use of the infringing part of the Software despite the IP Claim relating to the Software, the Licensee shall notify Annata in writing of its intention to do so and shall assume full responsibility for payment of any and all IP Claims directed at Annata (including cost) due to the continued use of the infringing part of the Software by the Licensee. If, as a result of an IP 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 Entire liability. The provisions in this section 9 state the exclusive remedy of the Licensee with respect to any IP Claim.
10. Limitation and exclusion of damages
10.1 The Licensee can recover from Annata only direct damages up to the actual amount of fees 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 of these Terms.
10.2 The Licensee shall not be entitled to recover any other damages, including consequential, lost profits, special, indirect, punitive or incidental damages arising out of or in connection with these 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, breach of 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 IP 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’s 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 fraud, gross negligence or wilful misconduct.
11. Limited Warranty
11.1 Limited warranty. The Software will perform substantially as described in the Documentation.
11.2 Term of warranty. The limited warranty covers the Software for one (1) year after installation by the Licensee. Annata issues regular supplements, updates, or replacement software as applicable (the “Updates”). Annata’s limited warranty for the Software is extended by ninety (90) days each time an Update is issued provided that the Licensee shall promptly install Updates received from Annata and stay current on all Updates in order to avoid significant degradation to the normal use of the Software. If Annata does not issue an Update, the term of warranty is twelve (12) months from the last Update. Licensee shall subsequently and promptly install such Update to extend the limited warranty as stated in this section.
11.3 Exclusions from warranty. This warranty does not cover problems arising from the Licensee’s acts or omissions, the acts or omissions 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 actual amount of fees the Licensee paid for the Software in the preceding twelve (12) months. If Annata cannot repair the supplements, updates and/or replacement software, Annata will refund up to the actual amount of fees the Licensee paid for them, if any, in the preceding twelve (12) months. The Licensee must promptly uninstall the Software and return any Documentation, media and other associated materials to Annata and provide written confirmation upon completion, to Annata’s reasonable satisfaction. 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 written notice to Annata, supporting evidence and/or documentation and 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 10.2) which: (i) clearly shows 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 provided under this section 10 is the only warranty given by Annata. Annata does not provide any other express warranties, guarantees or conditions. Annata disclaims any implied warranties of merchantability, fitness for a particular purpose and non-infringement to the extent permitted by law.
12. Audit and compliance
12.1 The Software may include features that provide Annata with usage information which identifies the number of users accessing the Software, access rights and tasks run by each user compared to the number of Licenses subscribed for by the Licensee (this includes e.g. telemetry, access and usage reports but excludes personal data) (“Usage Data”). The Licensee acknowledges and accepts that Annata shall be entitled to collect, process and store such Usage Data and such Usage Data shall at all times belong to Annata.
12.2 Right to audit compliance. During the term of the License and for two (2) years post-termination of the License, the Licensee shall keep and maintain documents, records, and other materials relating to the Licensee’s use of the Software and the Licensee’s performance of its obligations under these Terms including, without limitation, reports, orders, invoices, volume reports and records related to acquisition, delivery and, if applicable, destruction of the Software. Annata shall have the right to audit the Licensee’s compliance of its obligations under these Terms, at Annata’s expense. The Licensee agrees to provide reasonable cooperation in the event of a compliance audit and shall provide access to any information and material required, and, where required, reasonable access to Licensee’s premises, for the purposes of Annata auditing the Licensee’s compliance.
12.3 Audit process and limitations. To audit the Licensee’s compliance, Annata will engage an independent auditor from an internationally recognized public auditing firm, which will be subject to confidentiality obligations. Auditing will be performed by an independent auditor with no less than thirty (30) days’ written notice to the Licensee, during normal business hours and in a manner that does not interfere unreasonably with the Licensee’s operations. As an alternative, Annata can require and the Licensee shall agree to complete Annata’s self-audit questionnaire relating to the Software and the License.
12.4 Audit frequency. Annata shall be permitted to perform annual audits of the Licensee’s use of the Software and compliance of these Term. If Annata discovers, upon completion of audit that the Licensee did not under-subscribe for Licences amounting to five percent (5%) or less, Annata agrees not to audit the Licensee for at least one year thereafter.
12.5 Use of results. Annata will only use the information obtained in its audit to enforce Annata’s rights and to determine whether the Licensee is in compliance with these Terms. By invoking the rights and procedures described above, Annata does not waive its rights to enforce these Terms or to protect its rights by any other means permitted by law.
12.6 Remedies for non-compliance. If an audit reveals that the Licensee has underpaid fees for the Software, in addition to other remedies provided for by law and in these Terms, the Licensee shall be invoiced for such underpaid fees, for all periods which the Licensee was not in compliance with these 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 relation to the audit.
13.1 Export restrictions. If the Software is an integrated add-on to a Microsoft product, 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 Terms, the Licensee hereby expressly accepts that any customer-specific information received by Annata on the basis of the relationship regulated by these 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 shall govern these Terms, regardless of conflict of laws principles.
13.4 Dispute Resolution. In the event of any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity or termination (the Dispute), the relevant Parties to the Dispute shall first attempt to resolve the same by negotiation in good faith between the appointed representatives of such Parties (the Negotiation).
13.5 In the event that the Dispute shall remain unresolved within thirty (30) days of the start of any Negotiation, any Party to the Dispute shall be entitled to refer the same for final resolution to arbitration administered by the Nordic Arbitration Centre of the Iceland Chamber of Commerce (NAC) in accordance with the Arbitration Rules of the NAC for the time being in force (the NAC Rules), which rules are deemed to be incorporated by reference to this Clause 12.9(b). Unless the Parties to the Dispute unanimously agree otherwise, the arbitral tribunal shall consist of one (1) arbitrator to be appointed in accordance with the NAC Rules. The language of arbitration shall be English. The seat of arbitration shall be Iceland. All awards may, if necessary, be enforced by any court having jurisdiction in the same manner as a judgment in such court. The costs of such arbitration shall be determined by and allocated between the parties to the Dispute by the arbitration tribunal in its award.