LICENSING FRAMEWORK AGREEEMENT

This LICENSING FRAMEWORK AGREEMENT (“Agreement” or “ALFA”) is made effective as of the Signature Date included in the Order Document (“Effective Date”)

between

Akamas S.p.a., an Italian limited liability company, pursuant to the laws of Italy, having its registered office at Via Simone Schiaffino 11, Milan, Italy registered with the VAT number 10584850969 (hereinafter referred to as “Akamas” or “Licensor”);

and

The Client (hereinafter also referred to as “Licensee”), as defined in the Order Document.

WHEREAS

  • Akamas has developed and is continuing to develop technologies and software for automatic tuning of IT systems configurations based on Artificial Intelligence & Machine Learning techniques (hereinafter referred to as “Akamas” or the “Software”);
  • Licensee is a company willing to use Akamas to improve the performance of its own IT services (the “Purpose”);
  • Akamas and Licensee each referred to as a “Party” and jointly as the “Parties”;
  • Akamas is willing to grant a license to use the Software upon the terms and conditions set forth herein, and, if requested by Licensee, provide integration services to Licensee with respect to the Software, according to the terms and conditions referenced in the commercial offer.

Now therefore, in consideration of the mutual promises, representations, warranties, covenants and other terms and conditions contained herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged,  

it is convened and agreed

between the Parties as follows: 

1. DEFINITIONS AND INTERPRETATION

The annexes and attachments are an integral part of this Agreement. The headings are inserted for convenience only and shall not affect the construction of this Agreement.

In this Agreement, unless the context otherwise requires:

1.1. “Acceptance” shall mean the approval given by Licensee in writing after the successful Integration of the Software in Licensee’s Infrastructure, confirming that the Software can be operated and maintained and it fulfills the Specifications.

1.2. “Acceptance Tests” means the tests to be agreed between the Parties to establish that the Licensed Materials conform to the Specifications; at the end of Acceptance Tests Licensee should give written note of their successful completion.

1.3. “Affiliate(s)” means any legal entity that owns, is owned by, or is commonly owned with a Party. “Own” means having more than fifty percent (50%) ownership or the right to direct the management of the entity, but such entity shall only be deemed to be an Affiliate so long as such ownership or right to direct exists.

1.4. “Attachment(s)” means the attachment(s) or annex(es) attached hereto as of the Effective Date or subsequently agreed and executed by both parties and referencing this Agreement. The Attachment(s) shall specify the terms and conditions applicable to the Software or Services ordered.

1.5. “Confidential Information” means any trade secret or other restricted or proprietary information including, but not by way of limitation, designs, drawings, specifications, techniques, models, data, source code, documentation, diagrams, flow charts, research, development, processes, procedures, “know-how,” new product or new technology information, product prototypes, product copies, manufacturing, development or marketing techniques and materials, development or marketing timetables, strategies and development plans, including trade names, trademarks, customer, supplier or personal names and other information related to customers, suppliers or personnel, pricing policies and financial information, and other information of a similar nature, whether or not reduced to writing or other tangible form, and any other trade secrets or non-public business information. Confidential Information does not include any information which: (a) was in the lawful and unrestricted possession of recipient prior to its disclosure by discloser; (b) is or becomes generally available to the public by acts other than those of recipient after receiving it; (c) has been received lawfully and in good faith by recipient from a third party who did not derive it from discloser; (d) is shown by acceptable evidence to have been independently developed by the recipient without use or reference to Confidential Information; (e) is required by law to be disclosed by recipient, provided that Recipient gives discloser written notice as promptly as possible under the circumstances of such requirement prior to such disclosure, and provides reasonable assistance at discloser’s reasonable expense in obtaining an order protecting the information from public disclosure.

1.6. “Documentation” means the user manuals to be delivered by Akamas with the Software. 

1.7. “Effective date” means the date that states the validity of this Agreement, as specified at the beginning of this document.

1.8. “Intellectual property” means any patent, copyright, registered design, trade mark or other industrial or intellectual property right (in respect of Akamas) and any application for any such right;

1.9.  “Infrastructure” means the IT Environment (Hardware and Software systems) of a company.

1.10 “Integration Pack” means a software library, provided with the Software, to integrate the Software with external third-party software solutions, such as for example:

  • Monitoring and generic data source input tools
  • Load injection and performance experiment activation tools
  • Configuration and automation tools

The number and type of Integration Packs used in an Optimization Study impacts the total number of OCs in use.

1.11. “Integration Service” means implementation, integration, configuration and testing of the Software before and during the automatic optimization activities as ordered by the Licensee.

1.12. “License” means the limited, non-exclusive, non-transferable and non-sublicensable right to use the Software during the Term and within the Territory. It is bound by the time constraints (the Term, as defined below), number of Optimization Credits and all other conditions stated in this Agreement and the Order Document.

1.13. “Licensed Materials” means the Software and all related ancillary software, libraries, fixes, supplements, updates, add-on components, validation codes, Documentation and/or services with all related technologies and the Intellectual Property contained therein.

1.14. “Managed Component” is an object that represents a physical or logical element of the service model managed by the Software as part of the optimization process. The number of Managed Components involved in an Optimization Study impacts the total number of OCs in use.

1.15. “Optimization Credit” or “OC” means the License metering and billing unit. The number of OCs used in an Optimization Study depends on the number and type of Optimization Packs in use, the number and type of Integration Packs in use and the number of Managed Components. OCs are considered in use, and therefore billable, during a specific time period when an Optimization Study is active (running) in the Software in that period. The unit cost of an OC depends on the Term  as per the Offer Document.

1.16. “Optimization Study” means a set of performance experiments running during a specific time period aiming at optimizing a system defined by a set of Managed Components. 

1.17. “Optimization Pack” means a software library provided with the Software defining the algorithms, domain knowledge and experience to optimize specific technologies. Optimization Packs might include relevant technology parameters and constraints, load injection policies, key performance metrics, configuration policies, etc. The number and type of Optimization Packs required in an Optimization Study impacts the total OCs in use.

1.18. “Order Document” means the document signed by Licensee and reasonably acceptable to Akamas that is used to order Software and/or Services under this Agreement. An Order Documents should include Software or Service name, OCs purchased, Term , Site, Price, Territory, Licensee.

1.19. “System(s)” means a distinctly identifiable operating system image, storage box, network link, database instance, MVS image, virtual host.

1.20. “Services” means managed services, support and maintenance services, Integration Services, professional services and/or other services provided by Licensor or a third party.

1.21. “Site” means an address (e.g., room number, department number, building number, street address, campus etc.) or group of addresses specified in the Order Document. If no Site is specified on the Order Document, then the Site shall be the shipping address.

1.22. “Software” means the object code version of the software program(s) licensed under this Agreement or any amendment hereto and all permitted reproductions made by Licensee including fixes, supplements, Update, add-on components, validation codes. 

1.23. “Specifications” means the technical, functional and non-functional requirements which the Software shall fulfill as agreed between the Parties in the initial Order Document or any or as necessary to fulfill the contractual purpose as contemplated by the Parties as agreed between the Parties from time to time.

1.24. “Territory” is defined as a state or country up to the geographic boundaries of a specific country. If no Territory is specified in this Agreement or the Order Document, then the Territory shall be the State or Country where the Licensed Material were shipped, as paid for by Licensee.

1.25. “Updates” means (i) bug fixes, patches and maintenance minor releases and (ii) “version upgrades”, i.e., new product releases denoted by a change to the right of the first decimal point (e.g., v2.0 to v2.1) that are generally made available through Licensor’s paid Maintenance and Support Terms and Conditions. Updates do not include separately priced Akamas products containing substantially new functionality and features as determined by Licensor.

2. SCOPE OF THE AGREEMENT

2.1. Framework Agreement. This Agreement serves as a Framework License and Services Agreement under which Licensee may order the Software and Services. All Software and Services ordered by Licensee pursuant to this Agreement shall be subject to the terms and conditions specified in this Agreement and the relevant Attachment(s). Each Order Document accepted by Licensor shall be incorporated herein by this reference.

2.2. Grants. Subject to Licensee compliance with the terms and conditions of this Agreement, including, but not limited to payment of applicable fees, Licensor grants Licensee, a limited, non-exclusive, non-sublicensable and non-transferable License for the Licensed Materials described in Annex A to this Agreement. The License is for use of the Licensed Materials in the Territory during the Term, subject to the restrictions and terms set forth in this Agreement and the Order Document, and solely for the Purpose. Unless otherwise agreed, Licensee is prohibited from sharing the Software with a third party who is not subject to the terms of this Agreement. The Akamas Software is licensed on a Site basis, for the number of Optimization Credits stated in the Order Document. OCs related to a single Software License may not be used on more than one Site. The License covers the Software, its user documentation and any related computer programs, documentation and information provided by Licensor. Nothing in this agreement will be deemed to grant Licensee any further proprietary rights in the computer programs or in any other work embodied in the Software or related materials supplied to Licensee by Licensor. None of the rights contemplated under this Agreement include rights to resell the Licensed Materials and Software. Licensor may provide Licensee with major releases to the Software, as further detailed in the Akamas Software Maintenance and Support Terms and Conditions; Licensee may refuse to accept the major releases. The terms and conditions of this Agreement apply to any and all updates and major releases. After successful deployment of any upgrade, Licensee may no longer use the product that formed the basis for Licensee’s upgrade.

2.3. Orders for OCs. The number of OCs and the Initial Term are set forth in the respective Order Document. The initial Order Document is attached to this Agreement. Licensee may at any time issue further Order Documents for further OCs or Licenses.

2.4. Territory. Licensee will have the right to exercise the rights granted only in the Territory stated in the Order Document. 

2.5. Acceptance Process. The parties agree in collaborating and act in good faith in the conduct of Acceptance Tests with the goals to install Licensed Materials and integrate them with Licensee infrastructure according to Specifications. The acceptance certificate, or other form of written acceptance as agreed with Licensee, shall be signed by the Licensee within 15 days from the date of a successful Acceptance Test. If Licensee does not sign the acceptance certificate and fails to provide written statements identifying in reasonable detail any non-conformity or deviation with the acceptance criteria, then the Licensed Materials shall be deemed to have been accepted.

3. TERM AND TERMINATION

3.1. Term. This Agreement shall commence on the Effective Date and continue in effect for the time period stated in the Order Document unless terminated earlier pursuant to Article 3.2. (the “Initial Term”). It shall be automatically renewed at the end of the current term for an additional year and so on unless either party gives written notice of its intention not to renew six (6) months before expiration of the current term (the “Extended Term,” and together with the Initial Term, the “Term”). Expiration of this Agreement pursuant to this provision will not alter the rights, duties or obligations of the parties relating to any orders accepted by Licensor under this Agreement prior to the date of expiration. 

3.2. Termination. In the event that either party believes that the other materially has breached any obligations under this Agreement, such party shall so notify the breaching party in writing. The breaching party shall have sixty (60) days from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing that cure has been effected. If the breach is not cured within sixty (60) days, the non-breaching party shall have the right to terminate the Agreement. Material breach includes, but is not limited to: i) any breach that adversely and materially affects Licensor’s or its licensors’ intellectual property rights; ii) failure to pay fees due and payable; or iii) breach of confidentiality obligations. Either Party may immediately terminate this Agreement or a particular order if the other party: (a) enters into or proposes to enter into any compromise or arrangement with its creditors, or convenes any meeting of its creditors, is or becomes unable to pay its debts, commits any act of bankruptcy or is subject to an order or a resolution for its liquidation, administration, winding up or dissolution (other than for the purposes of amalgamation or reconstruction); or (b) has a liquidator, receiver, administrator, administrative receiver, or similar officer appointed over any or all or any substantial part of its assets or undertaking.

3.3. Effects of Termination. In case of termination according to clause 3.2. caused or not by Licensee’s material breaches, being the license definitively revoked, Licensee must promptly discontinue the use of the Software, and Documentation and return the same to Licensor or, alternatively, remove the same from its computers and destroy any media, copies and Documentation and certify to Licensor in writing as to such destruction. Except as otherwise set forth in this Agreement, Licensor shall have no obligation to refund fees to Licensee upon the day of the notification for termination of the contract and termination does not relieve Licensee of its obligation to pay fees that are due and payable.

4. PUBLICITY/INFORMATION REQUESTS

4.1. Licensor shall not cause or permit to be released any publicity, advertisement, news release, or public announcement, or any denial or confirmation thereof, in whatever form, regarding any aspect of this Agreement or the relationship between Licensor and Licensee without Licensee’s prior written approval. Licensor shall not use the name, trade name, service marks, trademarks, trade dress or logo of Licensee in publicity releases, advertising or similar activities without the prior written consent of Licensee. This provision shall survive termination of this Agreement. 

4.2. Notwithstanding the above, Licensee agrees to act as a reference customer of Licensor and that Licensor may refer to Licensee by trade name and logo, and may briefly describe Licensee’s business, in Licensor’s marketing materials and web site. Licensor and Licensee may, upon the Parties’ mutual agreement, issue a joint press release to announce the relationship of the Parties hereunder. 

5. LICENSOR PERFORMANCE OBLIGATIONS

5.1. Licensor will provide all available help files and other appropriate user documentation and will ensure reasonable efforts to provide all the information Licensee will need. Licensor will offer reasonable levels of activation and installation support concerning Licensed Materials.

5.2. Licensor shall provide the support and maintenance services as agreed in the separate Support and Maintenance Service Framework. The provision of support and maintenance services leaves any warranty and other rights of Licensee with respect to the Software under this Agreement unaffected. Any Updates to remedy defects shall be provided by Licensor free-of-charge.

6. LICENSEE'S OBLIGATIONS AND CONSENTS

6.1. Unless otherwise agreed herein and/or the applicable law provides mandatorily for such rights, Licensee will not a) make any copies of any computer program contained in the Software except for backup or archival purposes and except as provided in clause 2.2., and will not make any copies of all or any part of the user documentation, except for Licensee’s own use; b) sell, resell, transfer, assign, distribute, provide or disseminate all or any part of the Software other than as permitted under this Agreement while using the Software for the Purpose; c) attempt to reverse engineer, decompile or disassemble the Software; d) modify, adapt, translate or create derivative works, nor allow any of those actions to occur, based on all or any part of the Software; e) modify any proprietary rights notices which appear in the Software or components thereof. Licensee will safeguard the Software and related user documentation with a reasonable degree of care, using procedures designed to protect the trade secrets and proprietary information of Licensor, so that no unauthorized use is made of them and no disclosure of any part of their contents is made to anyone other than Licensee and any employees, agents or consultants of Licensee whose duties reasonably require such disclosure.

7. INTELLECTUAL PROPERTY RIGHTS

7.1. Ownership. As between Licensee and Licensor, Licensor or its licensors exclusively retains all intellectual property rights (including patents, trademarks and copyrights), proprietary rights (including trade secrets) and moral rights (including the rights of attribution and authorship) throughout the world in the Licensed Materials and all of their derivative works, adaptations, versions, releases, improvements, alterations, modifications and enhancements created or made by Licensor, its officers, directors, shareholders, employees, agents, contractors, Licensees, successors or assigns. Licensee’s rights are limited to those expressly granted in this Agreement or Attachments. The Parties will notify each other of any suspected infringement of the Intellectual Property of Licensor, and Licensor will take such reasonable legal action in relation to such infringement, paying all expenses.

8. INTELLECTUAL PROPERTY RIGHTS

8.1. Confidential Information. The parties agree throughout the Term of this Agreement and until the later of five (5) years following the expiration of the Term or Termination pursuant to clause 3.2 not to disclose, produce, publish, permit access to, divulge or allow to be divulged to any person any Confidential Information. The Parties shall take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the disclosing Party’s (“Discloser’s”) Confidential Information. Except as otherwise provided herein, the Parties shall not make each other’s Confidential Information available to any third party (other than those of its employees under non-disclosure obligations), or to use each other’s Confidential Information for any purpose other than as contemplated hereunder. The Parties may, subject to this Agreement, share Confidential Information and results of audits with its parent, parent subsidiaries, subsidiaries affiliates and licensors for the purpose of administering and performing its obligations hereunder and under agreements with its licensor’s. 

9. PRODUCT WARRANTY

9.1. Licensor Limited Warranties. Licensor warrants that, for the entire duration of the License, the Software will operate substantially in accordance with the Specifications. Licensee must inform Licensor in writing during the warranty period if Software does not operate as warranted and provide to Licensor such information and materials as Licensor sufficient to document and reproduce an issue. Following receipt of such information and materials, if Software does not operate as warranted, Licensor will, at its reasonable election, but notwithstanding Licensee’s right to claim already incurred damages (within the limitations as set forth in Section 12), either: (i) modify Software so that it does operate as warranted, (ii) replace Software with other Licensor software offering substantially similar functionality. If neither (i) nor (ii) remedy the warranty case, Licensee may (i) reduce the applicable fee corresponding to the impact on the use of the Software resulting from the defect or (ii) terminate the Agreement and claim refund the license fee paid for the particular Software giving rise to the warranty claim (iii) demand compensation of damages (within the limitations as set forth in Section 12).

9.2. Licensor will have no responsibility or obligation under the foregoing warranty or otherwise to the extent the defect has been caused by: (a) any Software that has been modified by anyone other than Licensor, or (b) failure of the Software caused by Licensee or its permitted agents and contractors through accident, abuse or misapplication.

9.3. Warranty Disclaimer. To the maximum extent permitted by applicable laws, the warranty and remedies provided in this Agreement and as provided in Attachments (if any) are the only warranties and remedies provided by Licensor in relation to the Software and/or Services and are exclusive and in lieu of all other warranties, terms and conditions. EXCEPT AS EXPLICITLY PROVIDED HEREIN, LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE SOFTWARE. LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SOFTWARE.  Each of the Parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether a party to this agreement or not) other than as expressly set out in this Agreement as a warranty or representation. The only remedy available to it for breach of such warranties or representations shall be for breach of contract under the terms of this Agreement. Nothing in this Agreement shall, however, operate to limit or exclude any liability for fraud. All open source software or freeware included in the Software or Updates is provided “as is” and without warranty of any kind. The list of open source software or freeware is listed in Annex B. Akamas guarantees that the Software does not contain any other open source software or freeware than listed in Annex B and, if so later on, that any open source software used in the Software does not cause any “viral effect” to other components of the Software or other systems of the Licensee’s Infrastructure which impairs Licensee’s ability to license or distribute the Software or other Infrastructure on the basis of its proprietary license terms.

10. PRICES AND PAYMENT TERMS

10.1. Renumeration, License Fees. The prices and license fees are set forth in the respective Order Document. All prices and license fees are firm in Euro and cover all work, costs, expenses, licenses and any other fees, but exclude withholding taxes (if applicable), VAT and other taxes applying to Licensee.

10.2. Invoicing, Payment Terms. Licensor shall invoice the Integration Services and the license fees as described in the Order Document.

11. INTELLECTUAL PROPERTY WARRANTIES AND INDEMNITIES

11.1. Warranty. Licensor warrants that it has the legal power to license the rights granted under this Agreement, that it has obtained any and all necessary permissions from third parties to license the Licensed Materials and that the use of the Licensed Materials in accordance with the terms of this Agreement shall not infringe any copyrights or database rights, any product or design patents or any other registered trademark or any Intellectual Property right of any third party.

11.2. Indemnity. Subject to the limitations of Sections 11.3, Licensor shall indemnify and hold Licensee harmless for any losses, claims, damages, awards, penalties or injuries incurred, including reasonable attorney’s fees, which arise from any claim by any third party of an alleged infringement of patent or trademark, or any other property right arising out of the normal use of the Licensed Materials by Licensee in accordance with the Term of this Agreement. Licensee shall: (1) promptly notify Licensor in writing of any such Claim; (2) give Licensor full information and assistance in connection therewith; (3) give Licensor the sole right to control the defense of any such Claim and the sole right to settle or compromise any such Claim; and (4) not prejudice Licensor’s defense or endeavors to settle such Claim. Licensor will pay all damages, costs, and expenses finally awarded to third parties against Licensee in such action or agreed to in settlement by Licensor. If a Software or Service is, or in Licensor’s opinion might be, held to infringe or misappropriate as set forth above, Licensor shall at its expense replace or modify such Software or Service with a Licensor program or service substantially similar in functionality so as to avoid infringement or misappropriation, or procure the right for Licensee to continue the use of such Indemnified Product. If Licensor fails in providing any such alternatives, Licensee is entitled to return such Indemnified Product to Licensor, or ask Licensor to cease providing such Service to Licensee, and Licensor shall refund the pro-rated unused portion of prepaid fees for such Licenses and/or Services. To the extent permitted by law, the foregoing states Licensor’s entire liability to Licensee for infringement or misappropriation of intellectual property rights, including but not limited to patent, copyright, trademark and trade secret rights and is in lieu of and replaces any and all other express, implied, or statutory warranties or conditions regarding infringement or misappropriation. 

11.3. Limitations. Licensor will have no liability for, and no obligation to defend Licensee against any claim of infringement to the extent such claim is based on: (a) use of  a superseded or altered release of the Licensed Materials if such infringement would have been avoided by the use of a current unaltered release of Licensed Materials (b) use of the Licensed Materials outside the scope of this Agreement; (c) the combination, operation or use of any Licensed Materials with software, data, hardware or other materials not furnished by Licensor if such infringement would have been avoided by the use of such Licensed Materials without such software, data, hardware or other materials or data; or (d) an alteration, modification or adaptation of the Licensed Materials by a party other than Licensor.  In the defense or settlement of such claims (or if Licensor reasonably believes the Licensed Materials do infringe), Licensor shall have the option at its own expense to (a) modify the Licensed Materials so it becomes non-infringing or (b) obtain for Licensee a license to continue using the Licensed Materials. If it is not commercially reasonable to perform either of the above options, then Licensor may terminate the license for the infringing Licensed Materials. The above exclusions apply to the extent that the infringement would have been avoided but for such improper use.

12. LIMITATIONS OF DAMAGES

12.1. Warranty Exclusions. EXCEPT FOR DAMAGES ARISING FROM A BREACH OF CONFIDENTIALITY OBLIGATIONS OF EITHER PARTY AND EXCEPT FOR LICENSEE’S BREACH OF ANY OF LICENSOR’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING THE LICENSE GRANT AND RESTRICTIONS CONTAINED IN THE LICENSED PROGRAM ATTACHMENT), TO THE FULL EXTENT PERMITTED BY LAW, THE PARTIES (FOR THEMSELVES AND THEIR RESPECTIVE THIRD PARTY LICENSORS, SUPPLIERS OR CONTRIBUTORS) EXCLUDE, WITHIN THE LIMITS OF FRAUD, CONSEQUENTIAL DAMAGES (I.E. LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF REPUTATION) AND ALL SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), ANY OTHER THEORY OR BY OPERATION OF LAW EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

12.2. Limitation. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND EXCEPT IN RESPECT OF WILLFUL MISCONDUCT AND GROSS NEGLIGENCE, EITHER PARTY’S MAXIMUM ANNUAL LIABILITY TO THE OTHER PARTY FOR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE FOR THAT CALENDAR YEAR. TO THE FULLEST EXTENT NOT PROHIBITED BY LAW, LICENSOR’S THIRD PARTY LICENSORS, SUPPLIERS OR CONTRIBUTORS SHALL NOT BE LIABLE TO LICENSEE FOR ANY AMOUNT OR KIND OF DAMAGES ARISING OUT OF USE OF, OR INABILITY TO USE, THE SOFTWARE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. 

13. FORCE MAJEURE

13.1. Except for payment obligations, neither Party will be liable for any delay or failure to perform its obligations under this Agreement due to causes beyond its reasonable control (each a “Force Majeure”), including, but not limited to, acts of God, Governmental acts, fires, floods, explosions, riots, embargoes, terrorist acts, acts of civil or military authorities, disruptions in the flow of data to or from networks, denial of or delays in processing of export license applications, accidents, fuel crises or power outages. In the event of either party being so delayed or prevented from performing its obligations such party shall: (a) give notice in writing of such delay or prevention to the other party as soon as reasonably possible; (b) use all reasonable endeavors to mitigate the effects of such delay or prevention upon the performance of its obligations under this agreement; and (c) resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.

14. AUDIT

14.1. In the event that Licensee has ordered Software under this Agreement, Licensee shall maintain complete and accurate books and records relating to compliance with the license grants, restrictions and confidentiality of the Software. Licensor shall have the right at its own expense, during Licensee’s normal business hours and upon reasonable written notice, to audit Licensee’s records and computers to verify Licensee’s compliance with the terms and conditions of this Agreement, the Attachments and any Order Documents. Licensor shall not exercise this audit right more than four times in any 12 month period. If the audit reveals an unreported usage of more than five percent (5%), Customer shall promptly pay the difference, the interest accrued on the difference and the cost for the audit. The interest accrued on the difference shall be based on the statutory interest rate, from the date on which the difference became due to Licensor.

15. ASSIGNMENT AND SUB-CONTRACTING

15.1. Unless otherwise set out herein, this Agreement and the rights hereunder are not transferable or assignable by one party without the prior written consent of the other party which shall not be unreasonably refused.

15.2. Licensor may assign in whole or in part this Agreement to an Affiliate or to an entity which is part of the same group or to a successor pursuant to a merger, consolidation or sale, or to an entity which acquires all or substantially all of Licensor’s assets or business upon prior written notice, provided the assignee remains responsible for all the obligations. In addition, Licensor may delegate the performance of certain Services to third parties, provided Licensor controls the delivery of such Services to Licensee and remains responsible to Licensee for the delivery of such Services. 

16. DATA PROTECTION

16.1. Each Party shall, at all times, comply with its respective obligations under the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) as amended or supplemented, and any further implementation, supplementation or replacement of that Regulation (“Data Protection Legislation”).

16.2. The word “Process”; and the expression “Personal Data”, when used in this article shall have the meaning assigned thereto in the General Data Protection Regulation.

16.3. Licensor shall process Personal Data provided to it pursuant to the terms of the present Agreement in accordance with the Data Protection Legislation. Unless Licensee expressly requires otherwise, Licensor and its subcontractors shall only undertake processing of Personal Data necessarily required in connection with the performance of Licensor’s obligations under the present Agreement and in full compliance with the Data Protection Legislation.

16.4. Licensor shall process or transfer any Personal Data in any country or territory outside of the European Economic Area (EEA) even without the written consent of Licensee provided that such country guarantees an adequate level of protection and it satisfies the other obligations applicable to it pursuant to the DPA. Licensor and Its subcontractors shall comply with any reasonable procedures or processes notified to Licensor by Licensee with respect to Personal Data from time to time. Unless Licensee expressly requires otherwise, the Licensor shall not disclose Personal Data to any third parties other than:

    • a. To employees, contractors (and, when applicable subcontractors) to whom such disclosure is necessary for the performance of Licensor’s obligations under the present Agreement;
      b. To the extent required by any competent authority or Court, provided that (i) this disclosure shall be made subject to obligations of confidentiality and that (ii) Licensor shall, immediately after it becomes aware of such a requirement, give notice in writing to Licensee of any disclosure of Personal Data that it (or, when applicable, its subcontractor) is required to make.

16.5. The Licensor and its subcontractors shall bring into effect and maintain all reasonable technical and organizational measures to prevent unauthorized or unlawful processing of Personal Data and accidental loss or destruction of, or damage to Personal Data, including but not limited to taking reasonable steps to ensure the reliability of employees and subcontractors having access to the Personal Data.

16.6. Licensee may at reasonable intervals (or sooner if it can be evidenced that the Licensor or its subcontractors have not processed Personal Data in compliance with the applicable Data Protection Legislation), request a detailed written description of the technical and organizational methods employed by the Licensor and its subcontractors for the storage, protection and processing of Personal Data. Licensor shall deliver a written report to Licensee in sufficient detail that Licensee can reasonably determine whether or not any applicable Personal Data is being or has been processed in compliance with the applicable Data Protection Legislation.

17. SEVERABILITY

17.1. If any provision or provisions of this Agreement shall be held invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, such holding shall not invalidate the other provisions, and the remaining provisions of this Agreement will remain binding and in full force and effect between the parties. 

18. ENTIRE AGREEMENT

18.1. This Agreement constitutes the full agreement of the parties and supersedes all prior communications, understanding and agreements between the parties, whether oral or written, covering the subject matter hereof. Following the execution of this Agreement, the parties shall cooperate with each other to give it full performance and shall carry out all the formalities necessary for the enforcement of the obligations. 

19. WAIVER OF CONTRACTUAL RIGHT

19.1. Waiver of any provision herein shall not be deemed a waiver of any other provision, nor shall waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.

20. GOVERNING LAW

20.1. This Agreement will be governed by the Italian laws, excluding the United Nations Convention of Contracts for the International Sale of Goods. 

21. DISPUTE RESOLUTIONS

21.1. The Parties agree to use their best efforts to resolve through discussion and negotiation to their mutual satisfaction any disagreement arising out of or under the terms of this Agreement. The parties shall, without delay, continue to perform their respective obligations under this Agreement which are not affected by the dispute. Failing a negotiated solution between the parties, the parties agree to participate in voluntary mediation (selecting a mediator by mutual agreement of the parties) but if after 30 days from the date of the first request by a party for voluntary mediation, no resolution of the dispute has occurred, then the parties agree that any dispute, claim, or controversy concerning this Agreement or the termination of this Agreement, or any dispute, claim or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be submitted to the exclusive jurisdiction of the courts of Milan, Italy.

22. GENERAL PROVISIONS

22.1. Nothing herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.

22.2. No variation or waiver of any of the terms hereof shall be valid unless in writing signed by or on behalf of both parties.However, as to any minor or major releases of the Software, Licensor may amend these terms and conditions, which will be provided at the time of download of the minor or major releases. If Licensee does not agree to the amended terms and conditions, Licensee may elect not to accept the amended terms and conditions and to not download and install these minor or major releases. Please notice that in case Licensee does not install these new minor or major releases, Licensor may not be able to provide the agreed level of support, as detailed in the Akamas Maintenance and Support Terms and Conditions.

22.3. Each party shall comply with all applicable export control laws and regulations with respect to all Software and Services provided hereunder. 

23. NOTICES

23.1. Licensor may give notice by means of general product notices, electronic mail to Licensee’s e-mail address on record in Licensee’s account information, or by written communication sent by first class mail or pre-paid post to Licensee’s address on record in Licensee’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or twenty-four (24) hours after sending (if sent by email). Licensee may give notice to Licensor at any time by any letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Licensor at the following address: Akamas S.p.a., Via Schiaffino 11, 20158 Milan, Italy. Notice to Licensor shall be deemed given when received by Licensor.

ANNEX A - Akamas Product Highlights

Akamas is a new breed of performance optimization technology that helps enterprises, online businesses, and SaaS vendors extract unprecedented levels of performance and cost savings from their technology stacks.

The complexity of on-prem and cloud software configurations and continuous integration processes have grown beyond the reach of even the most skilled performance experts. Built by veterans in performance engineering and data science, Akamas exploits advanced machine learning techniques to continuously optimize hundreds of interdependent IT configuration parameters.

Akamas is a company of Moviri, a global software and professional services group, and counts BMC Software, Dynatrace, Microfocus, Neotys and Splunk among its partners. Headquartered in Milan, Akamas has offices in Boston, Los Angeles, and Singapore. 

Full details and updated version of Akamas description at akamas.io.

ANNEX B - OPEN SOURCE SOFTWARE AND FREEWARE

 Here is a list of all open source software used in Akamas along with their license. 

Software:

  1. guava 
  2. json-schema-validator
  3. hibernate-types-52
  4. micrometer-registry-prometheus
  5. springfox-swagger-ui
  6. springfox-swagger2
  7. lombok
  8. spring-boot-starter-actuator
  9. spring-boot-starter-data-jpa
  10. spring-boot-starter-web
  11. airflow
  12. kong
  13. elasticsearch
  14. postgres
  15. ca-advisor
  16. prometheus
  17. node-exporter
  18. spotify.docker-client
  19. objecthunter.exp4j
  20. click
  21. requests
  22. pyyaml
  23. flask
  24. jsonschema
  25. texttable
  26. python
  27. skopt
  28. SAlib (can be removed)
  29. openJDK
  30. ansible

License:

  1. Apache License, Version 2.0
  2. Apache License, Version 2.0
  3. Apache License, Version 2.0
  4. Apache License, Version 2.0
  5. Apache License, Version 2.0
  6. Apache License, Version 2.0
  7. MIT License
  8. Apache License, Version 2.0
  9. Apache License, Version 2.0
  10. Apache License, Version 2.0
  11. Apache License, Version 2.0
  12. Apache License, Version 2.0
  13. Apache License, Version 2.0
  14. PostgreSQL License
  15. Apache License, Version 2.0
  16. Apache License, Version 2.0
  17. Apache License, Version 2.0
  18. Apache License, Version 2.0
  19. Apache License, Version 2.0
  20. BSD License
  21. BSD License
  22. MIT License
  23. BSD License
  24. MIT License
  25. MIT License
  26. PSF
  27. BSD
  28. MIT
  29. GNU General Public License, version 2,with the Classpath Exception
  30. GNU General Public License v3.0

See for yourself.

Experience the benefits of Akamas autonomous optimization.

No overselling, no strings attached, no commitments.

© 2024 Akamas S.p.A. All rights reserved. – Via Schiaffino, 11 – 20158 Milan, Italy – P.IVA / VAT: 10584850969