Prolaborate Software License Agreement (EULA)

Effective Starting: March 01, 2024

IMPORTANT – READ CAREFULLY

This Prolaborate Software License Agreement (“End User License Agreement” or “EULA”) is a legal agreement between you (“You” or “CUSTOMER”) availing Prolaborate License and Sparx Systems Pty Ltd (“SPARX” or “SELLER”) as owner of the SOFTWARE PRODUCT (PROLABORATE). The CUSTOMER & SELLER are collectively referred as “PARTIES”.

SPARX Prolaborate offers software for viewing, sharing, updating and collaborating on SPARX Enterprise Architect models (architecture, process, analysis, specification and software design models) to companies (PROLABORATE, Engine, Mailer, Lookup, Service Management and Web application; collectively referred as the “APPLICATION”) for temporary installation and use on the CUSTOMER’S own hardware. The terms and conditions of User Agreement (Subscription) (the “Agreement”) regulate the use of the APPLICATION. By installing the APPLICATION, you agree with the following terms of the Agreement.

Object of the Agreement

The object of this Agreement is the temporary provisioning of the APPLICATION by SPARX to the CUSTOMER for the use of its functionalities and the grant of rights to use the APPLICATION and the provision of User Support during the term of this Agreement. This service is chargeable in form of a fee. A perpetual license to use the APPLICATION beyond the term of the Agreement is explicitly not granted.

Provisioning of the APPLICATION and Documentation

The APPLICATION will be provided by SPARX. The CUSTOMER can choose the delivery method from the following alternatives:
- Download of the APPLICATION via download link.
- The delivery of the APPLICATION via storage media.
  The CUSTOMER’S choice must be communicated during the time of purchase or 48 hours prior to delivery. In the failure of doing so, SPARX may choose either delivery option. The installation of the APPLICATION will be performed by the CUSTOMER in the CUSTOMER‘S premises and is not covered by this Agreement. For the installation, SPARX provides installation documentation to the CUSTOMER.
The agreed features/functionality of the APPLICATION follows the functional specifications valid at the time the Agreement was concluded.
The number of individuals permitted to access the APPLICATION is based on the number of “USERS” requested and subsequently fully paid for by the CUSTOMER. A “USER” can be an individual, who is either (i) an employee of the CUSTOMER, (ii) an employee of a company within the CUSTOMER‘S group of companies or (iii) someone, who is working under direction of the CUSTOMER or under direction of a company within the CUSTOMER’S group of companies based on a contractual agreement (e.g. external consultant, contractor).
Both PARTIES understand and agree that all data submitted by CUSTOMER to the database of the APPLICATION and subsequently contained in any reports, spreadsheets or analysis of any kind generated by the APPLICATON (together “CLIENT DATA”) is exclusive property of CUSTOMER and nothing contained herein shall restrict CUSTOMER from using such CLIENT DATA in any way it deems fit. SPARX shall only use CLIENT DATA for the benefit of CUSTOMER as required to its obligations under this Agreement.
SPARX shall provide the CUSTOMER with installation documentation and USER Documentation’ for the APPLICATION in electronic form, in English by making the documentation accessible online. If Prolaborate provides an UPDATE to the APPLICATION, the USER Documentation shall be modified accordingly. This only applies, however, if the effects on the USER Documentation are substantial.
The CUSTOMER shall be entitled to store and print out the documentation provided, and to duplicate the same in reasonable quantities for the purposes of this Agreement, subject to retaining all logos, ownership, confidentiality and other property right notices. In all other respects, the restrictions on use agreed of the APPLICATION as per section Rights of use for APPLICATION.
Both PARTIES agree that the APPLICATION, depending on the service and components selected, may provide the possibility to integrate additional services from third parties. Those third-party services are not part of SPARX’s service. The contractual partner of the CUSTOMER for such services is exclusively the third party and in no case SPARX. Only the terms of use and privacy policy of the respective third party apply for the third-party service.

Rights of Use of APPLICATION

Rights of use for the APPLICATION and the Documentation
The CUSTOMER and its Affiliates receive, with the full payment of the fee, a non-exclusive, non-perpetual, royalty free, non-sublicensable, enterprise wide, worldwide, and non-transferable right of use for the APPLICATION and the Documentation, limited to the term of this Agreement, in accordance with the following provisions:
- The CUSTOMER shall be entitled to use the APPLICATION for the duration mentioned in the invoice or quote provided to the CUSTOMER by SPARX.
- The conveyance of the APPLICATION to the CUSTOMER takes place on a temporary basis. The CUSTOMER may only use the APPLICATION for its own commercial activities.
- The CUSTOMER shall be entitled to use the APPLICATION itself and through its employees or authorized agents in so far as these have been registered by it as authorized USERS. A replacement of authorized USERS with other USERS is possible at any time. The licensee vis-à-vis SPARX is exclusively the CUSTOMER. Authorized USERS are not allowed to share their user name or passwords (or other login credentials) with others, either in the employment of the CUSTOMER or otherwise.
- The CUSTOMER shall not be entitled to make any changes to the APPLICATION. CUSTOMER shall not embed any third-party software into the APPLICATION other than what is permitted in the SPARX’s Documentation. In particular, it shall not be entitled to investigate its mode of operation by way of so-called reverse engineering, to decompile or dismantle it in its parts and/or to use it as a basis for its own software programs. For the purpose of integration with an independently developed computer program, the required application programming interface (API) may be licensed from SPARX for an optional additional license fee.
- The CUSTOMER shall not be entitled to any additional rights which have not been expressly granted under this Agreement. This Agreement grants no ownership or intellectual property rights or any other comparable right for the APPLICATION. All intellectual property rights remain with SPARX also in case of the rights granted according to this Agreement. The CUSTOMER shall not be entitled to use the APPLICATION beyond the agreed scope or to make the APPLICATION accessible to third parties without the written approval of SPARX and shall not be permitted to replicate or sell the APPLICATION or convey the use of the same temporarily, in particular to hire it out or to lend it or provision it.
- All documents delivered to the CUSTOMER (the “Documentation”) are to be kept confidential unless otherwise publicly available. Their contents may not be disclosed to third parties without the prior written consent of SPARX.
- The APPLICATION is provided with a license file, which determines the number and type of the licenses, license edition and integrations. The technical effectiveness of the license file is limited to the respective fixed term of the Agreement between the Parties (hereinafter “TERM”) and needs to be replaced upon expiration of the TERM. If the CUSTOMER does not terminate the Agreement before the applicable period of cancellation, then SPARX shall notify the CUSTOMER within reasonable time before the expiration of the license file. SPARX shall also provide renewed license information only upon receipt of payment or confirmation of service renewal. No renewed license information shall be shared without the CUSTOMER renewing the service.
The CUSTOMER and its Affiliates’ third-party service providers may use the APPLICATION as set forth herein for the purpose of performing services for CUSTOMER and its Affiliates.

Responsibilities and Obligations of CUSTOMER

The CUSTOMER shall fulfil all duties and obligations as necessary for the performance of the agreement. It shall in particular:

Keep the authorizations of use and access credentials and rights allocated to it and/or to its USERS confidential, protect the APPLICATION from access by third parties not specifically allowed under this Agreement and not pass on the same to unauthorized USERS. This authorization data and credentials are to be protected by appropriate and usual measures. The CUSTOMER shall immediately notify SPARX if the suspicion exists that non-authorized individuals may have become aware of any USER’s access credentials or passwords, or have otherwise circumvented the provided USER authentication methods of the APPLICATION; and
Comply with the restrictions/obligations in relation to Rights of use for APPLICATION in particular and:
- Name all USERS intended to use the APPLICATION under Rights of use for APPLICATION, and also any changes to the USERS and to keep all USER-relevant information up-to-date
- All USER accounts must be specified by using a non-ambiguously assigned e-mail address (login name) for each authorized USER according to section Rights of use for APPLICATION. The use of e-mail distribution lists or generic user names or sharing of passwords to access the APPLICATION is explicitly not allowed;
- Without authorization, extract any programs, components, information or data, or enable third parties to extract the same, or interfere with APPLICATIONS (in particular the license file) which are provided by SPARX, or cause any such interferences to be made, or, without authorization, to probe or penetrate data networks of SPARX or promote any such penetrations;
- Obligate the authorized USERS that they will comply with all provisions of this Agreement applicable to them;
- Report any defects of the APPLICATION in text form. An oral report is possible, if the CUSTOMER also reports the defect in text form within 2 (two) working days. The report has to describe the defect in detail (in particular the conditions, under which it appears, symptoms and effect of the defect);
- Grant remote access rights to APPLICATION, as long as this is necessary to achieve the object of this Agreement, e.g. for error analysis by SPARX. SPARX’s support will contact the CUSTOMER for this purpose by e-mail or phone and in each case agrees upon the beginning of the remote access session. The CUSTOMER shall have the right to document and track the measures of SPARX during the remote access and if necessary to conduct the required technical and organizational measures (such as data backup). CUSTOMER understands and accepts that in the course of a remote access session some CUSTOMER information may be lost (e.g. work results, inserted data), e.g. as a result of restoring the APPLICATION to an earlier state. It is solely the CUSTOMER’S responsibility to back up all information before the start of a remote access session as described in the Administrator’s guide. If the backup of the data fails, the CUSTOMER is obliged to inform SPARX prior to the start of remote access session.

User Support

Support will be provided for all the parties mentioned in the “Rights of use of APPLICATION” section.

Details of Self-help resources shall be made available to the CUSTOMER by SPARX.
“User Support” includes end user email support for the use of the APPLICATION.
SPARX shall provide User-Support in English and by email only.
Support queries can be categorized in to 3 levels:
- Level 1: Production APPLICATION down caused by a defect in the APPLICATION
- Level 2: Any unknown defects in the APPLICATION
- Level 3: Help query
All three levels of support queries will be acknowledged within 1 business day from the receipt of the query.
L1 queries shall be resolved by SPARX in one business day with necessary cooperation from the CUSTOMER.
L2 queries shall be resolved by SPARX on a case-to-case basis. Resolution will be taken in agreement with the CUSTOMER.
L3 queries shall be resolved by SPARX within a week.
For all three levels of queries, SPARX will make sure the CUSTOMER is updated about the ongoing proceedings.
SPARX shall make commercially reasonable efforts to satisfy the service levels.

Maintenance of the APPLICATION

MAINTENANCE OF THE APPLICATION includes measures to improve the latest available version of the APPLICATION created by SPARX. It also includes the right to receive modified or new functionalities of the APPLICATION (hereinafter called “UPDATE” or “UPDATES”) with the official release by SPARX and to use them instead the previous version at no extra charge. UPDATES are developed and released periodically by SPARX and provided to the CUSTOMER via download link during the Agreement’s term.
If SPARX provides an UPDATE, the USER Documentation shall be modified accordingly. This only applies, however, if the effects on the USER Documentation are substantial.

Breach of Provisions by CUSTOMER

Should the CUSTOMER breach the provisions for reasons for which it is responsible, and should the CUSTOMER continue to breach or repeatedly breach the provisions for a period of 2 (two) weeks after written notice is sent to the CUSTOMER by SPARX and if the CUSTOMER is responsible for the same, SPARX may terminate the Agreement without any period of notice.

Warranty

SPARX warrants that for a period of 180 days from the date the APPLICATION is purchased, the APPLICATION will perform in conformance with its specifications. In the event APPLICATION is not performing as per the specifications within the 180-day warranty period, at CUSTOMER’s option, SPARX shall make commercially reasonable efforts to correct or repair the APPLICATION. Any corrected APPLICATION will be warranted on the same basis as provided in this Section for 180 days from the date of acceptance of the repaired or replaced APPLICATION.

Right to Audit

The CUSTOMER will allow SPARX, at SPARX’s request, to verify the proper use of the APPLICATION, in particular to determine if the CUSTOMER uses the APPLICATION according to his purchased license volumes. For this purpose, the CUSTOMER will provide access to SPARX to relevant documentation and records, as well as allow the examination of the hardware and software environment used. SPARX or a designated by a certified auditing firm under confidential obligation named by SPARX that is also acceptable for the CUSTOMER is allowed to examine any relevant records at the CUSTOMER’S offices during its regular business hours. SPARX will ensure that the CUSTOMER’S business is not disturbed by this action more than necessary. If the results of the examination exceed the number of purchased licenses by more than 5% (five percent) or other use that was not agreed upon, the CUSTOMER shall bear the cost of the examination, otherwise SPARX is responsible for the audit costs.

Termination

Agreements subject to charge which have been concluded for a fixed period or for which a minimum Agreement term has been agreed shall be extended by the agreed period or minimum term, at the most, however, by 1 (one) year, unless they have been terminated by one of the Parties providing a written notice of 90 (ninety) calendar days in advance of the expiration date of the current minimum Agreement term. This applies subject to any deviating agreements with the CUSTOMER.
Either party may terminate the Agreement for the other party’s material breach of this Agreement; provided such material breach has not been cured within 30 (thirty) days of the non-breaching party’s notice thereof. Notwithstanding the foregoing, SPARX may terminate this Agreement immediately if CUSTOMER (i) has deliberately provided false contact data, (ii) failed to pay under the agreed terms, (iii) has transferred its USER account to a third party or (iv) tolerates the usage by a third-party not previously authorized by SPARX, specifically by individuals not explicitly named, (v) manipulates the provided license file. Except for the reasons for material breach as described above in (i) to (v), it is considered agreed for any other material breach, that the immediate termination must be preceded by a written reminder to the defaulting party with a deadline of 30 (thirty) working days.
Notices of termination must be given in written form.

Duties upon and following termination of the Agreement

Following the ending of the contractual relationship, the CUSTOMER is obliged to terminate the use of the APPLICATION and remove all installed copies of the APPLICATION and to destroy all backup copies of the APPLICATION if created.

General Terms

SPARX reserves the right to change provisions of this Agreement. SPARX will notify the CUSTOMER of such change by e-mail or in written form at least 30 (thirty) calendar days before coming into effect. The approval is given automatically if the CUSTOMER does not object the change via e-mail or in written form within 30 (thirty) calendar days of the receipt. If the CUSTOMER objects, the contractual relationship continues to be governed by the original Agreement terms.
The CUSTOMER is allowed to transfer this Agreement including all rights and obligations to an affiliated corporation. “Affiliate” of a CUSTOMER means any legal entity in which the CUSTOMER, directly or indirectly, holds fifty percent (50%) or more of the shares or voting rights or controls or is under common control with that legal entity. “Control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract or otherwise. The CUSTOMER shall inform SPARX in writing about the new contractual partner within a period of 30 (thirty) calendar days before the effective date of the transfer.
SPARX is allowed to transfer this Agreement including all rights and obligations to a corporation of its choice. The transfer will come into effect 30 (thirty) calendar days after the receipt of the transfer notification sent by e-mail to the CUSTOMER. In case of a transfer of the Agreement, the CUSTOMER has the right for extraordinary termination of the Agreement, which needs to be exercised within 7 (seven) calendar days after receipt of the notification.
SPARX warrants that the APPLICATION furnished to CUSTOMER shall not contain any Malicious Code which is defined as (i) any undisclosed program routine, device or other feature or hidden file, including, without limitation, a time bomb, virus, software lock, trojan horse, drop-dead device, worm, malicious logic or trap door, that is designed to delete, disable, deactivate, interfere with or otherwise harm the Software or any hardware, software, data or other programs of CUSTOMER or its Affiliates, or (ii) any transmitting or activating computer program, any communication feature or tool which enables SPARX to collect information regarding CUSTOMER’s activities or data, or any hardware-limiting, software-limiting, or services-limiting function (including, but not limited to, any key, node lock, time-out or other similar functions), whether implemented by electronic or other means, or (iii) any viruses or malware. Notwithstanding the foregoing, it is understood that access to the APPLICATION may be limited by means of License expressly set forth in the Agreement.
SPARX shall defend, indemnify, and hold harmless CUSTOMER, its Affiliates, and each of its employees against any and all liability, damages, losses, claims, demands, actions, causes of action, or any of them arising out of third party claims to ownership of the APPLICATION or that the APPLICATION otherwise infringes or misappropriates any intellectual property rights of any third party. SPARX shall have the right to control the defense of any litigation, and to settle or compromise all claims or lawsuits subject to its indemnity. In the event the use of the APPLICATION furnished by SPARX hereunder, or any part thereof, is held to constitute infringement, SPARX agrees that it shall, at its option and sole expense, either (1) procure for CUSTOMER the right to continue using the infringing subject matter, or (2) replace the infringing items with non-infringing items of equivalent value and functionality or modify the same so that it becomes non-infringing and retains its full value and functionality.
Except for SPARX’s indemnification obligations, and damages related to SPARX’s breach of its obligations of confidentiality, or damages arising in connection with SPARX’s obligations regarding malicious code, neither CUSTOMER nor their affiliates shall be liable to the other under any contract, negligence, strict liability or other legal or equitable theory for any special, incidental, indirect, consequential, or punitive damages.