In addition to any definitions contained within the body of these Terms, the following definitions apply:
“Affiliates” means any person, corporation or other entity that now or in the future, directly or indirectly controls, is controlled by or is under common control with a party. For purposes of this definition, “control” means: (a) with respect to a corporation, the ownership, directly or indirectly, of fifty percent (50%) or more of the voting power to elect directors thereof; and (b) with respect to any other entity, the power to direct the management of such entity.
“Contract” means a written agreement entered into under these Terms for the supply of Licenses or the provision of Services between SoftwareONE and Company. A Contract for Services will describe the Services, requirements, and Deliverables. Examples of a Contract include a statement of work, cloud services agreement, or other agreement for managed, cloud, or professional services.
“Deliverables” means all tangible output of the Services created exclusively for Company by SoftwareONE and identified in a Contract. Deliverables may include, data, reports, and specifications.
“EULA” means the applicable end user license agreement, customer product use rights (“PUR”), or other agreement from a Licensor relating to the Licenses to Company (e.g. Microsoft customer agreement for Cloud Services) as well as the then applicable standard terms and conditions for cloud, maintenance and/or support services of software, as amended from time to time.
“Intellectual Property Rights” means patents, rights to inventions, copyrights, software, trademarks, trade names, service marks, logos, trade secrets, Confidential Information, compilations, diagrams, layouts, mask works, know-how database rights, designs, methods, processes, formulas, rights to use and other proprietary rights and privileges, whether registered or unregistered, together with all improvements, modifications, enhancements, and derivative works to all of the foregoing, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Knowledge Capital” means the ideas, concepts, know-how, skills, methodologies, and techniques, whether possessed by SoftwareONE prior to the commencement of these Terms or developed, modified, improved, or refined by SoftwareONE during the course of performance of the Services.
“Licenses” means the permission granted by a Licensor to Company, allowing Company to exercise certain privileges with respect to its software regardless if the software is installed on premises or accessed as cloud services. The Licenses to be supplied or made available under these Terms will be listed in the respective quote from SoftwareONE, Company purchase order and Order Confirmation(s) and may include temporary usage rights (e.g. subscriptions, cloud services), updates and upgrades, patches or any other changes offered by the Licensor according to the EULA.
“Licensor” means the legal entity that is the owner of the Intellectual Property Rights vested in the Licenses with the authority to define the End User License Agreement (“EULA”), Product Terms (“PT”) or other terms and conditions for the use of the Licenses.
“Order Confirmation” means SoftwareONE’s binding acceptance of a Company’s order containing the details of the Licenses, the price and other terms agreed upon by the parties. For the avoidance of doubt, an automatically generated response by SoftwareONE which does not state the details of the License(s), the price and other applicable terms or a Company’s order is not sufficient to constitute a valid Order Confirmation.
“Personal Data” has the same meaning as “personal data” under the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
“Sanctions Rules” mean all applicable laws, regulations, rules and requirements in force from time to time relating to trade, financial or economic sanctions or embargoes including, any sanctions or embargoes enforced by the U.S. government, (including the U.S. Export Administration Regulations and the International Traffic in Arms Regulations), the European Union or any member state of the European Union as well as any applicable import, export or re-export controls and any end-user, end-use, and destination restrictions of the U.S. and other governments that apply to the other party’s materials or to the use, transfer, import, export, or re-export of any products licensed or distributed under the Contract.
“Services” means the services to be provided by SoftwareONE under these Terms and the applicable Contract. “SoftwareONE” means the SoftwareONE entity named in an Order Confirmation or Contract.
“SoftwareONE IP” means SoftwareONE’s Intellectual Property Rights and Knowledge Capital.
Unless otherwise agreed in writing by SoftwareONE, all Licenses and Services are supplied under these Terms to the exclusion of any other terms and conditions set out or referred to in any document or other communication used by Company prior to or in concluding a Contract. These Terms will apply to each Contract. In the event of a conflict between the Terms and a Contract, the Terms will control unless all of the following apply: (i) the Contract clearly identifies the applicable section of the Terms that is to be modified; and (ii) the Contract clearly states that such provision of the Contract supersedes the conflicting or inconsistent provision in the Terms. Any other attempt to alter or amend these Terms will be deemed void and have no effect. Any modifications to these Terms contained within a Contract are effective as to that Contract only and will not modify the Terms for any other purpose whatsoever. These Terms cannot be modified except in a written document signed by all parties.