QT LICENSE AGREEMENT
Agreement version 4.0
This License Agreement ("Agreement") is a legal agreement between The Qt Company (as defined below) and the Licensee (as defined below) for the license of Licensed Software (as defined below). Capitalized terms used herein are defined in Section 1.
WHEREAS:
(A). Licensee wishes to use the Licensed Software for the purpose of developing and distributing Applications and/or Devices; and
(B). The Qt Company is willing to grant the Licensee a right to use Licensed Software for such purpose pursuant to term and conditions of this Agreement.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS
"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.
"Applications" shall mean Licensee's software products created using the Licensed Software, which may include the Redistributables, or part thereof.
"Contractor(s)" shall mean third party consultants, distributors and contractors performing services to a Party under applicable contractual arrangement.
"Customer(s)" shall mean Licensee's end users to whom Licensee, directly or indirectly, distributes copies of the Redistributables.
"Deployment Platforms" shall mean operating systems specified in the License Certificate, in which the Redistributables can be distributed pursuant to the terms and conditions of this Agreement.
"Designated User(s)" shall mean the employee(s) of Licensee or Licensee's Affiliates acting within the scope of their employment or Licensee's Contractors acting within the scope of their services for Licensee and on behalf of Licensee. Designated Users shall be named in the License Certificate.
"Development License" shall mean the license needed by the Licensee for each Designated User to use the Licensed Software under the license grant described in Section 3.1 of this Agreement.
"Development Platforms" shall mean those operating systems specified in the License Certificate, in which the Licensed Software can be used under the Development License, but not distributed in any form or used for any other purpose.
"Devices" shall mean hardware devices or products that 1) are manufactured and/or distributed by the Licensee or its Affiliates or Contractors, and (2)(i) incorporate or integrate the Redistributables or parts thereof; or (ii) do not incorporate or integrate the Redistributables at the time of distribution, but where, when used by a Customer, the main user interface or substantial functionality of such device is provided by Application(s) or otherwise depends on the Licensed Software.
"Distribution License(s)" shall mean the license required for distribution of Redistributables in connection with Devices pursuant to license grant described in Section 3.3 of this Agreement.
"Distribution License Packs" shall mean set of prepaid Distribution Licenses for distribution of Redistributables, as defined in The Qt Company's standard price list, quote, Purchase Order confirmation or in an appendix hereto, as the case may be.
"Intellectual Property Rights" shall mean patents (including utility models), design patents, and designs (whether or not capable of registration), chip topography rights and other like protection, copyrights, trademarks, service marks, trade names, logos or other words or symbols and any other form of statutory protection of any kind and applications for any of the foregoing as well as any trade secrets.
"License Certificate" shall mean a certificate generated by The Qt Company for each Designated User respectively upon them downloading the licensed Software. License Certificate will be available under respective Designated User's Qt Account at account.qt.io and it will specify the Designated User, the Development Platforms, Deployment Platforms and the License Term. The terms of the License Certificate are considered part of this Agreement and shall be updated from time to time to reflect any agreed changes to the foregoing terms relating to Designated User's rights to the Licensed Software.
"License Fee" shall mean the fee charged to the Licensee for rights granted under the terms of this Agreement.
"License Term" shall mean the agreed validity period of the Development License of the respective Designated User, during which time the Designated User is entitled to use the Licensed Software, as set forth in the respective License Certificate.
"Licensed Software" shall mean all versions of the
(i) Qt Toolkit (including Qt Essentials, Qt Add-Ons and Value-Add modules) as described in http://doc.qt.io/qt-5/qtmodules.html,
(ii) Qt Creator (including Creator IDE tool) as described in http://doc.qt.io/qtcreator/index.html,
(iii) Qt 3D Studio as described in http://doc.qt.io/qt3dstudio/index.html, and
as well as corresponding online or electronic documentation, associated media and printed materials, including the source code, example programs and the documentation, licensed to the Licensee under this Agreement. Licensed Software does not include Third Party Software (as defined in Section 4), Open Source Qt, or other software products of The Qt Company (for example Qt Safe Renderer and Qt for Automation), unless such other software products of The Qt Company are separately agreed in writing to be included in scope of the Licensed Software.
"Licensee" shall mean the individual or legal entity that is party to this Agreement, as identified on the signature page hereof.
"Licensee's Records" shall mean books and records that are likely to contain information bearing on Licensee's compliance with this Agreement or the payments due to The Qt Company under this Agreement, including, but not limited to: assembly logs, sales records and distribution records.
"Modified Software" shall have the meaning as set forth in Section 2.3.
"Online Services" shall mean any services or access to systems made available by The Qt Company to the Licensee over the Internet relating to the Licensed Software or for the purpose of use by the Licensee of the Licensed Software or Support. Use of any such Online Services is discretionary for the Licensee and some of them may be subject to additional fees.
"Open Source Qt" shall mean the non-commercial Qt computer software products, licensed under the terms of the GNU Lesser General Public License, version 2.1 or later ("LGPL") or the GNU General Public License, version 2.0 or later ("GPL"). For clarity, Open Source Qt shall not be provided nor governed under this Agreement.
"Party" or "Parties" shall mean Licensee and/or The Qt Company.
"Redistributables" shall mean the portions of the Licensed Software set forth in Appendix 1, Section 1 that may be distributed pursuant to the terms of this Agreement in object code form only, including any relevant documentation. Where relevant, any reference to Licensed Software in this Agreement shall include and refer also to Redistributables.
"Renewal Term" shall mean an extension of previous License Term as agreed between the Parties.
"Submitted Modified Software" shall have the meaning as set forth in Section 2.3.
"Support" shall mean standard developer support that is provided by The Qt Company to assist Designated Users in using the Licensed Software in accordance with The Qt Company's standard support terms and as further defined in Section 8 hereunder.
"Taxes" shall have the meaning set forth in Section 10.5.
"Term" shall have the meaning set forth in Section 12.
"The Qt Company" shall mean:
(i) in the event Licensee is an individual residing in the United States or a legal entity incorporated in the United States or having its headquarters in the United States, The Qt Company Inc., a Delaware corporation with its office at 2350 Mission College Blvd., Suite 1020, Santa Clara, CA 95054, USA.; or
(ii) in the event the Licensee is an individual residing outside of the United States or a legal entity incorporated outside of the United States or having its registered office outside of the United States, The Qt Company Ltd., a Finnish company with its registered office at Bertel Jungin aukio D3A, 02600 Espoo, Finland.
"Third Party Software " shall have the meaning set forth in Section 4.
"Updates" shall mean a release or version of the Licensed Software containing bug fixes, error corrections and other changes that are generally made available to users of the Licensed Software that have contracted for Support. Updates are generally depicted as a change to the digits following the decimal in the Licensed Software version number. The Qt Company shall make Updates available to the Licensee under the Support. Updates shall be considered as part of the Licensed Software hereunder.
"Upgrades" shall mean a release or version of the Licensed Software containing enhancements and new features and are generally depicted as a change to the first digit of the Licensed Software version number. In the event Upgrades are provided to the Licensee under this Agreement, they shall be considered as part of the Licensed Software hereunder.
2. OWNERSHIP
2.1 Ownership of The Qt Company
The Licensed Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Licensed Software is licensed, not sold.
All The Qt Company's Intellectual Property Rights are and shall remain the exclusive property of The Qt Company or its licensors respectively.
2.2 Ownership of Licensee
All the Licensee's Intellectual Property Rights are and shall remain the exclusive property of the Licensee or its licensors respectively.
All Intellectual Property Rights to the Modified Software, Applications and Devices shall remain with the Licensee and no rights thereto shall be granted by the Licensee to The Qt Company under this Agreement (except as set forth in Section 2.3 below).
2.3 Modified Software
Licensee may create bug-fixes, error corrections, patches or modifications to the Licensed Software ("Modified Software"). Such Modified Software may break the source or binary compatibility with the Licensed Software (including without limitation through changing the application programming interfaces ("API") or by adding, changing or deleting any variable, method, or class signature in the Licensed Software and/or any inter-process protocols, services or standards in the Licensed Software libraries). To the extent that Licensee's Modified Software so breaks source or binary compatibility with the Licensed Software, Licensee acknowledges that The Qt Company's ability to provide Support may be prevented or limited and Licensee's ability to make use of Updates may be restricted.
Licensee may, at its sole and absolute discretion, choose to submit Modified Software to The Qt Company ("Submitted Modified Software") in connection with Licensee's Support request, service request or otherwise. In the event Licensee does so, then, Licensee hereby grants The Qt Company a sublicensable, assignable, irrevocable, perpetual, worldwide, non-exclusive, royalty-free and fully paid-up license, under all of Licensee's Intellectual Property Rights, to reproduce, adapt, translate, modify, and prepare derivative works of, publicly display, publicly perform, sublicense, make available and distribute such Submitted Modified Software as The Qt Company sees fit at its free and absolute discretion.
3. LICENSES GRANTED
3.1 Development with Licensed Software
Subject to the terms of this Agreement, The Qt Company grants to Licensee a personal, worldwide, non-exclusive, non-transferable license, valid for the License Term, to use, modify and copy the Licensed Software by Designated Users on the Development Platforms for the sole purposes of designing, developing, demonstrating and testing Application(s) and/or Devices, and to provide thereto related support and other related services to end-user Customers.
Licensee may install copies of the Licensed Software on an unlimited number of computers provided that (i) only the Designated Users may use the Licensed Software, and (ii) all Designated Users must have a valid Development License to use Licensed Software.
Licensee may at any time designate another Designated User to replace a then- current Designated User by notifying The Qt Company in writing, provided that any Designated User may be replaced only once during any six-month period.
Upon expiry of the initially agreed License Term, the respective License Terms shall be automatically extended to one or more Renewal Term(s), unless and until either Party notifies the other Party in writing that it does not wish to continue the License Term, such notification to be provided to the other Party no less than ninety (90) days before expiry of the respective License Term. Unless otherwise agreed between the Parties, Renewal Term shall be of equal length with the initial Term.
Any such Renewal Term shall be subject to License Fees agreed between the Parties or, if no advance agreement exists, subject to The Qt Company's standard pricing applicable at the commencement date of any such Renewal Term.
3.2 Distribution of Applications
Subject to the terms of this Agreement, The Qt Company grants to Licensee a personal, worldwide, non-exclusive, non-transferable, revocable (for cause pursuant to this Agreement) right and license, valid for the Term, to
(i) distribute, by itself or through its Contractors, Redistributables as installed, incorporated or integrated into Applications for execution on the Deployment Platforms, and
(ii) grant sublicenses to Redistributables, as distributed hereunder, for Customers solely for Customer's internal use and to the extent necessary in order for the Customers to use the Applications for their respective intended purposes.
Right to distribute the Redistributables as part of an Application as provided herein is not royalty-bearing but is conditional upon the Licensee having paid the agreed Development Licenses from The Qt Company before distributing any Redistributables to Customers.
3.3 Distribution of Devices
Subject to the terms of this Agreement, The Qt Company grants to Licensee a personal, worldwide, non-exclusive, non-transferable, revocable (for cause pursuant to this Agreement) right and license, valid for the Term, to
(i) distribute, by itself or through one or more tiers of Contractors, Redistributables as installed, incorporated or integrated, or intended to be installed, incorporated or integrated into Devices for execution on the Deployment Platforms, and
(ii) grant sublicenses to Redistributables, as distributed hereunder, for Customers solely for Customer's internal use and to the extent necessary in order for the Customers to use the Devices for their respective intended purposes.
Right to distribute the Redistributables with Devices as provided herein is conditional upon the Licensee having purchased and paid the appropriate amount of Development and Distribution Licenses from The Qt Company before distributing any Redistributables to Customers.
3.4 Further Requirements
The licenses granted above in this Section 3 by The Qt Company to Licensee are conditional and subject to Licensee's compliance with the following terms:
(i) Licensee shall not remove or alter any copyright, trademark or other proprietary rights notice contained in any portion of the Licensed Software;
(ii) Applications must add primary and substantial functionality to the Licensed Software;
(iii) Applications may not pass on functionality which in any way makes it possible for others to create software with the Licensed Software; provided however that Licensee may use the Licensed Software's scripting and QML ("Qt Quick") functionality solely in order to enable scripting, themes and styles that augment the functionality and appearance of the Application(s) without adding primary and substantial functionality to the Application(s);
(iv) Applications must not compete with the Licensed Software;
(v) Licensee shall not use The Qt Company's or any of its suppliers' names, logos, or trademarks to market Applications, except that Licensee may use "Built with Qt" logo to indicate that Application(s) was developed using the Licensed Software;
(vi) Licensee shall not distribute, sublicense or disclose source code of Licensed Software to any third party (provided however that Licensee may appoint employee(s) of Contractors as Designated Users to use Licensed Software pursuant to this Agreement). Such right may be available for the Licensee subject to a separate software development kit ("SDK") license agreement to be concluded with The Qt Company;
(vii) Licensee shall not grant the Customers a right to (i) make copies of the Redistributables except when and to the extent required to use the Applications and/or Devices for their intended purpose, (ii) modify the Redistributables or create derivative works thereof, (iii) decompile, disassemble or otherwise reverse engineer Redistributables, or (iv) redistribute any copy or portion of the Redistributables to any third party, except as part of the onward sale of the Device on which the Redistributables are installed;
(viii) Licensee shall not and shall cause that its Affiliates or Contractors shall not a) in any way combine, incorporate or integrate Licensed Software with, or use Licensed Software for creation of, any software created with or incorporating Open Source Qt, or b) incorporate or integrate Applications into a hardware device or product other than a Device, unless Licensee has received an advance written permission from The Qt Company to do so. Absent such written permission, any and all distribution by the Licensee during the Term of a hardware device or product a) which incorporate or integrate any part of Licensed Software or Open Source Qt; or b) where the main user interface or substantial functionality is provided by software build with Licensed Software or Open Source Qt or otherwise depends on the Licensed Software or Open Source Qt, shall be considered as a Device distribution under this Agreement and dependent on compliance thereof (including but not limited to obligation to pay applicable License Fees for such distribution);
(ix) Licensee shall cause all of its Affiliates and Contractors entitled to make use of the licenses granted under this Agreement, to be contractually bound to comply with the relevant terms of this Agreement and not to use the Licensed Software beyond the terms hereof and for any purposes other than operating within the scope of their services for Licensee. Licensee shall be responsible for any and all actions and omissions of its Affiliates and Contractors relating to the Licensed Software and use thereof (including but not limited to payment of all applicable License Fees);
(x) Except when and to the extent explicitly provided in this Section 3, Licensee shall not transfer, publish, disclose, display or otherwise make available the Licensed Software;
; and
(xi) Licensee shall not attempt or enlist a third party to conduct or attempt to conduct any of the above.
Above terms shall not be applicable if and to the extent they conflict with any mandatory provisions of any applicable laws.
Any use of Licensed Software beyond the provisions of this Agreement is strictly prohibited and requires an additional license from The Qt Company.
4. THIRD PARTY SOFTWARE
The Licensed Software may provide links to third party libraries or code (collectively "Third Party Software") to implement various functions. Third Party Software does not comprise part of the Licensed Software. In some cases, access to Third Party Software may be included in the Licensed Software. Such Third Party Software will be listed in the ".../src/3rdparty" source tree delivered with the Licensed Software or documented in the Licensed Software, as such may be amended from time to time. Licensee acknowledges that use or distribution of Third Party Software is in all respects subject to applicable license terms of applicable third party right holders.
5. PRE-RELEASE CODE
The Licensed Software may contain pre-release code and functionality marked or otherwise stated as "Technology Preview", "Alpha", "Beta" or similar designation. Such pre-release code may be present in order to provide experimental support for new platforms or preliminary versions of one or more new functionalities. The pre-release code may not be at the level of performance and compatibility of a final, generally available, product offering of the Licensed Software. The pre-release parts of the Licensed Software may not operate correctly, may contain errors and may be substantially modified by The Qt Company prior to the first commercial product release, if any. The Qt Company is under no obligation to make pre-release code commercially available, or provide any Support or Updates relating thereto. The Qt Company assumes no liability whatsoever regarding any pre-release code, but any use thereof is exclusively at Licensee's own risk and expense.
6. LIMITED WARRANTY AND WARRANTY DISCLAIMER
The Qt Company hereby represents and warrants that it has the power and authority to grant the rights and licenses granted to Licensee under this Agreement.
Except as set forth above, the Licensed Software is licensed to Licensee "as is" and Licensee's exclusive remedy and The Qt Company's entire liability for errors in the Licensed Software shall be limited, at The Qt Company's option, to correction of the error, replacement of the Licensed Software or return of the applicable fees paid for the defective Licensed Software for the time period during which the License is not able to utilize the Licensed Software under the terms of this Agreement.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE QT COMPANY ON BEHALF OF ITSELF AND ITS LICENSORS, SUPPLIERS AND AFFILIATES, DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT WITH REGARD TO THE LICENSED SOFTWARE. THE QT COMPANY DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL SATISFY LICENSEE'S REQUIREMENTS OR THAT IT WILL OPERATE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED. ALL USE OF AND RELIANCE ON THE LICENSED SOFTWARE IS AT THE SOLE RISK OF AND RESPONSIBILITY OF LICENSEE.
7. INDEMNIFICATION AND LIMITATION OF LIABILITY
7.1 Limitation of Liability
EXCEPT FOR (I) CASES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, AND (II) BREACH OF CONFIDENTIALITY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFIT, 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. PARTIES SPECIFICALLY AGREE THAT LICENSEE'S OBLIGATION TO PAY LICENSE AND OTHER FEES CORRESPONDING TO ACTUAL USAGE OF LICENSED SOFTWARE HEREUNDER SHALL BE CONSIDERED AS A DIRECT DAMAGE.
EXCEPT FOR (I) CASES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, AND (II) BREACH OF CONFIDENTIALITY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE LICENSE FEES PAID OR PAYABLE TO THE QT COMPANY FROM LICENSEE DURING THE PERIOD OF TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT RESULTING IN SUCH LIABILITY.
THE PROVISIONS OF THIS SECTION 7 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE QT COMPANY AND LICENSEE AND THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
7.2 Licensee's Indemnification
Licensee shall indemnify and hold harmless The Qt Company from and against any claim, injury, judgment, settlement, loss or expense, including attorneys' fees related to: (a) Licensee's misrepresentation in connection with The Qt Company or the Licensed Software or breach of this Agreement, (b) the Application or Device (except where such cause of liability is solely attributable to the Licensed Software).
8. SUPPORT, UPDATES AND ONLINE SERVICES
Upon due payment of the agreed License Fees the Licensee will be eligible to receive Support and Updates and to use the Online Services during the License Term, provided, however, that in the event the License Term is longer than 36 months, Support is provided only for the first 12 months, unless the Parties specifically otherwise agree.
Unless otherwise decided by The Company at its free and absolute discretion, Upgrades will not be included in the Support but may be available subject to additional fees.
From time to time The Qt Company may change the Support terms, provided that during the respective ongoing License Term the level of Support provided by The Qt Company may not be reduced without the consent of the Licensee.
Unless otherwise agreed, The Qt Company shall not be responsible for providing any service or support to Customers.
9. CONFIDENTIALITY
Each Party acknowledges that during the Term of this Agreement each Party may receive information about the other Party's business, business methods, business plans, customers, business relations, technology, and other information, including the terms of this Agreement, that is confidential and of great value to the other Party, and the value of which would be significantly reduced if disclosed to third parties ("Confidential Information"). Accordingly, when a Party (the "Receiving Party") receives Confidential Information from the other Party (the "Disclosing Party"), the Receiving Party shall only disclose such information to employees and Contractors on a need to know basis, and shall cause its employees and employees of its Affiliates to: (i) maintain any and all Confidential Information in confidence; (ii) not disclose the Confidential Information to a third party without the Disclosing Party's prior written approval; and (iii) not, directly or indirectly, use the Confidential Information for any purpose other than for exercising its rights and fulfilling its responsibilities pursuant to this Agreement. Each Party shall take reasonable measures to protect the Confidential Information of the other Party, which measures shall not be less than the measures taken by such Party to protect its own confidential and proprietary information.
Obligation of confidentiality shall not apply to information that (i) is or becomes generally known to the public through no act or omission of the Receiving Party; (ii) was in the Receiving Party's lawful possession prior to the disclosure hereunder and was not subject to limitations on disclosure or use; (iii) is developed independently by employees or Contractors of the Receiving Party or other persons working for the Receiving Party who have not had access to the Confidential Information of the Disclosing Party, as proven by the written records of the Receiving Party; (iv) is lawfully disclosed to the Receiving Party without restrictions, by a third party not under an obligation of confidentiality; or (v) the Receiving Party is legally compelled to disclose, in which case the Receiving Party shall notify the Disclosing Party of such compelled disclosure and assert the privileged and confidential nature of the information and cooperate fully with the Disclosing Party to limit the scope of disclosure and the dissemination of disclosed Confidential Information to the minimum extent necessary.
The obligations under this Section 9 shall continue to remain in force for a period of five (5) years after the last disclosure, and, with respect to trade secrets, for so long as such trade secrets are protected under applicable trade secret laws.
10. FEES, DELIVERY AND PAYMENT
10.1 License Fees
License Fees are described in The Qt Company's standard price list, quote or Purchase Order confirmation or in an appendix hereto, as the case may be.
The License Fees shall not be refunded or claimed as a credit in any event or for any reason whatsoever.
10.2 Ordering Licenses
Licensee may purchase Development Licenses and Distribution Licenses pursuant to agreed pricing terms or, if no specific pricing terms have been agreed upon, at The Qt Company's standard pricing terms applicable at the time of purchase.
Licensee shall submit all purchase orders for Development Licenses and Distribution Licenses to The Qt Company by email or any other method acceptable to The Qt Company (each such order is referred to herein as a "Purchase Order") for confirmation, whereupon the Purchase Order shall become binding between the Parties.
10.3 Distribution License Packs
Unless otherwise agreed, Distribution Licenses shall be purchased by way of Distribution License Packs.
Upon due payment of the ordered Distribution License Pack(s), the Licensee will have an account of Distribution Licenses available for installing, bundling or integrating (all jointly "installing") the Redistributables with the Devices or for otherwise distributing the Redistributables in accordance with this Agreement.
Each time Licensee "installs" or distributes a copy of Redistributables, then one Distribution License is used, and Licensee's account of available Distribution Licenses is decreased accordingly.
Licensee may "install" copies of the Redistributables so long as Licensee has Distribution Licenses remaining on its account.
Redistributables will be deemed to have been "installed" into a Device when one of the following circumstances shall have occurred: a) the Redistributables have been loaded onto the Device and used outside of the Licensee's premises or b) the Device has been fully tested and placed into Licensee's inventory (or sold) for the first time (i.e., Licensee will not be required to use (or pay for) more than one Distribution License for each individual Device, e.g. in a situation where a Device is returned to Licensee's inventory after delivery to a distributor or sale to a Customer). In addition, if Licensee includes a back-up copy of the Redistributables on a CD-ROM or other storage medium along with the product, that backup copy of the Redistributables will not be deemed to have been "installed" and will not require an additional Distribution License.
10.4 Payment Terms
License Fees and any other charges under this Agreement shall be paid by Licensee no later than thirty (30) days from the date of the applicable invoice from The Qt Company.
The Qt Company will submit an invoice to Licensee after the date of this Agreement and/or after The Qt Company receives a Purchase Order from Licensee.
A late payment charge of the lower of (a) one percent per month; or (b) the interest rate stipulated by applicable law, shall be charged on any unpaid balances that remain past due.
The Qt Company shall have the right to suspend, terminate or withhold grants of all rights to the Licensed Software hereunder, including but not limited to the Developer License, Distribution License, and Support, should Licensee fail to make payment in timely fashion.
10.5 Taxes
All License Fees and other charges payable hereunder are gross amounts but exclusive of any value added tax, use tax, sales tax and other taxes, duties or tariffs ("Taxes"). Such applicable Taxes shall be paid by Licensee, or, where applicable, in lieu of payment of such Taxes, Licensee shall provide an exemption certificate to The Qt Company and any applicable authority.
11 RECORD-KEEPING AND REPORTING OBLIGATIONS; AUDIT RIGHTS
11.1 Licensee's Record-keeping
Licensee shall at all times maintain accurate and up-to-date written records of Licensee's activities related to the use of Licensed Software and distribution of Redistributables. The records shall be adequate to determine Licensee's compliance with the provisions of this Agreement and to demonstrate the number of Designated Users and Redistributables distributed by Licensee. The records shall conform to good accounting practices reasonably acceptable to The Qt Company.
Licensee shall, within thirty (30) days from receiving The Qt Company's request to that effect, deliver to The Qt Company a report on Licensee's usage of Licensed Software, such report to copies of Redistributables distributed by Licensee during that calendar quarter, and also detailing the number of undistributed copies of Redistributables made by Licensee and remaining in its account contain information, in sufficient detail, on (i) amount of users working with Licensed Software, (ii) copies of Redistributables distributed by Licensee during that calendar quarter, (iii) number of undistributed copies of Redistributables and corresponding number of unused Distribution Licenses remaining on Licensee's account, and (iv) any other information as The Qt Company may reasonably require from time to time.
11.2. The Qt Company's Audit Rights
The Qt Company or an independent auditor acting on behalf of The Qt Company's, may, upon at least five (5) business days' prior written notice and at its expense, audit Licensee with respect to the use of the Redistributables, but not more frequently than once during each 6-month period. Such audit may be conducted by mail, electronic means or through an in-person visit to Licensee's place of business. Any such in-person audit shall be conducted during regular business hours at Licensee's facilities and shall not unreasonably interfere with Licensee's business activities. The Qt Company or the independent auditor acting on behalf of The Qt Company shall be entitled to inspect Licensee's Records. All such Licensee's Records and use thereof shall be subject to an obligation of confidentiality under this Agreement.
If an audit reveals that Licensee is using the Licensed Software beyond scope of the licenses Licensee has paid for, Licensee agrees to immediately pay The Qt Company any amounts owed for such unauthorized use.
In addition, in the event the audit reveals a material violation of the terms of this Agreement (underpayment of more than 5% of License Fees shall always be deemed a material violation for purposes of this section), then the Licensee shall pay The Qt Company's reasonable cost of conducting such audit.
12 TERM AND TERMINATION
12.1 Term
This Agreement shall enter into force upon due acceptance by both Parties and remain in force for as long as there is any Development License(s) in force ("Term"), unless and until terminated pursuant to the terms of this Section 12.
12.2 Termination by The Qt Company
The Qt Company shall have the right to terminate this Agreement upon thirty (30) days prior written notice if the Licensee is in material breach of any obligation of this Agreement and fails to remedy such breach within such notice period.
12.3 Mutual Right to Terminate
Either Party shall have the right to terminate this Agreement immediately upon written notice in the event that the other Party becomes insolvent, files for any form of bankruptcy, makes any assignment for the benefit of creditors, has a receiver, administrative receiver or officer appointed over the whole or a substantial part of its assets, ceases to conduct business, or an act equivalent to any of the above occurs under the laws of the jurisdiction of the other Party.
12.4 Parties' Rights and Duties upon Termination
Upon expiry or termination of the Agreement Licensee shall cease and shall cause all Designated Users (including those of its Affiliates' and Contractors') to cease using the Licensed Software and distribution of the Redistributables under this Agreement.
Notwithstanding the above, in the event the Agreement expires or is terminated:
(i) as a result of The Qt Company choosing not to renew the Development License(s) as set forth in Section 3.1, then all valid licenses possessed by the Licensee at such date shall be extended to be valid in perpetuity under the terms of this Agreement and Licensee is entitled to purchase additional licenses as set forth in Section 10.2; or
(ii) for reason other than by The Qt Company pursuant to item (i) above or pursuant to Section 12.2, then the Licensee is entitled, for a period of six (6) months after the effective date of termination, to continue distribution of Devices under the Distribution Licenses paid but unused at such effective date of termination.
Upon any such termination the Licensee shall destroy or return to The Qt Company all copies of the Licensed Software and all related materials and will certify the same to The Qt Company upon its request, provided however that Licensee may retain and exploit such copies of the Licensed Software as it may reasonably require in providing continued support to Customers.
Expiry or termination of this Agreement for any reason whatsoever shall not relieve Licensee of its obligation to pay any License Fees accrued or payable to The Qt Company prior to the effective date of termination, and Licensee shall immediately pay to The Qt Company all such fees upon the effective date of termination. Termination of this Agreement shall not affect any rights of Customers to continue use of Applications and Devices (and therein incorporated Redistributables).
12.5 Extension in case of bankruptcy
In the event The Qt Company is declared bankrupt under a final, non-cancellable decision by relevant court of law, and this Agreement is not, at the date of expiry of the Development License(s) pursuant to Section 3.1, assigned to party, who has assumed The Qt Company's position as a legitimate licensor of Licensed Software under this Agreement, then all valid licenses possessed by the Licensee at such date of expiry, and which the Licensee has not notified for expiry, shall be extended to be valid in perpetuity under the terms of this Agreement.
13. GOVERNING LAW AND LEGAL VENUE
In the event this Agreement is in the name of The Qt Company Inc., a Delaware Corporation, then:
(i) this Agreement shall be construed and interpreted in accordance with the laws of the State of California, USA, excluding its choice of law provisions;
(ii) the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement; and
(iii) any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in San Francisco, USA, before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS' Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This Section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
In the event this Agreement is in the name of The Qt Company Ltd., a Finnish Company, then:
(i) this Agreement shall be construed and interpreted in accordance with the laws of Finland, excluding its choice of law provisions;
(ii) the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement; and
(iii) any disputes, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof shall be shall be finally settled by arbitration in accordance with the Arbitration Rules of Finland Chamber of Commerce. The arbitration tribunal shall consist of one (1), or if either Party so requires, of three (3), arbitrators. The award shall be final and binding and enforceable in any court of competent jurisdiction. The arbitration shall be held in Helsinki, Finland and the process shall be conducted in the English language. This Section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
14. GENERAL PROVISIONS
14.1 No Assignment
Except in the case of a merger or sale of substantially all of its corporate assets, Licensee shall not be entitled to assign or transfer all or any of its rights, benefits and obligations under this Agreement without the 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.
14.2 No Third Party Representations
Licensee shall make no representations or warranties concerning the Licensed Software on behalf of The Qt Company. Any representation or warranty Licensee makes or purports to make on The Qt Company's behalf shall be void as to The Qt Company.
14.3 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.
14.4 Entire Agreement
This Agreement, the exhibits hereto, the License Certificate and any applicable Purchase Order constitute the complete agreement between the Parties and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matters discussed herein.
In the event of any conflict or inconsistency between this Agreement and any Purchase Order, the terms of this Agreement will prevail over the terms of the Purchase Order with respect to such conflict or inconsistency.
Parties specifically acknowledge and agree that this Agreement prevails over any click-to-accept or similar agreements the Designated Users may need to accept online upon download of the Licensed Software, as may be required by The Qt Company's applicable processes relating to Licensed Software.
14.5 Modifications
No modification of this Agreement shall be effective unless contained in a writing executed by an authorized representative of each Party. No term or condition contained in Licensee's Purchase Order shall apply unless expressly accepted by The Qt Company in writing.
14.6 Force Majeure
Except for the payment obligations hereunder, 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 this Agreement with immediate effect without any liability (except for the obligations of payment arising prior to the event of Force Majeure) towards the other Party.
14.7 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 on the signature page. Each communication and document made or delivered by one Party to the other Party pursuant to this Agreement shall be in the English language.
14.8 Export Control
Licensee acknowledges that the Redistributables may be subject to export control restrictions under the applicable laws of respective countries. Licensee shall fully comply with all applicable export license restrictions and requirements as well as with all laws and regulations relating to the Redistributables and exercise of licenses hereunder and shall procure all necessary governmental authorizations, including without limitation, all necessary licenses, approvals, permissions or consents, where necessary for the re-exportation of the Redistributables, Applications and/or Devices.
14.9 No Implied License
There are no implied licenses or other implied rights granted under this Agreement, and all rights, save for those expressly granted hereunder, shall remain with The Qt Company and its licensors. In addition, no licenses or immunities are granted to the combination of the Licensed Software with any other software or hardware not delivered by The Qt Company under this Agreement.
14.10 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.
14.11 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.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have caused this Agreement to be executed by Licensee's authorized representative installing the Licensed Software and accepting the terms hereof in connection therewith.
Appendix 1
1. Parts of the Licensed Software that are permitted for distribution in object code form only ("Redistributables") under this Agreement:
- The Licensed Software's Qt Essentials and Qt Add-on libraries
- The Licensed Software's configuration tool ("qtconfig")
- The Licensed Software's help tool ("Qt Assistant")
- The Licensed Software's internationalization tools ("Qt Linguist", "lupdate", "lrelease")
- The Licensed Software's QML ("Qt Quick") launcher tool ("qmlscene" or "qmlviewer")
- The Licensed Software's installer framework
2. Parts of the Licensed Software that are not permitted for distribution include, but are not limited to:
- The Licensed Software's source code and header files
- The Licensed Software's documentation
- The Licensed Software's documentation generation tool ("qdoc")
- The Licensed Software's tool for writing makefiles ("qmake")
- The Licensed Software's Meta Object Compiler ("moc")
- The Licensed Software's User Interface Compiler ("uic")
- The Licensed Software's Resource Compiler ("rcc")
- The Licensed Software's parts of the IDE tool ("Qt Creator")
- The Licensed Software's parts of the Design tools ("Qt 3D Studio" or "Qt Quick Designer")
- The Licensed Software's Emulator