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IBSurgeon

HQbird End User License Agreement

TOO IBSurgeon Software · Baizakova, 280, Almaty, Kazakhstan [email protected] · www.ib-aid.com

Version 2.0 · Effective 01 August 2026

Covering: HQbird Standard, Professional, Enterprise, Per-Server Subscription, and Unlimited Subscription.

IMPORTANT - READ CAREFULLY

This End User License Agreement (the “Agreement”) is a legal agreement between you, either an individual or a single legal entity (“Licensee” or “you”), and TOO IBSurgeon Software (“IBSurgeon”), governing your use of the IBSurgeon HQbird software, in object code form only, together with its accompanying documentation, media, license keys and activation data (collectively, the “Software”).

BY DOWNLOADING, INSTALLING, ACTIVATING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE SOFTWARE AND, IF APPLICABLE, RETURN THE UNUSED SOFTWARE TO THE PLACE OF PURCHASE WITHIN THIRTY (30) DAYS FOR A REFUND.

If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that entity, and “Licensee” refers to that entity.

The Software is licensed only if obtained from IBSurgeon or an IBSurgeon authorized reseller. Software obtained from any other source may not be installed or used.

This Agreement is available at https://ib-aid.com/en/hqbird-eula/ and in the LICENSE.TXT file distributed with the Software.

1. Definitions

1.1 “Associated Companies” means, with respect to Licensee, any entity that directly or indirectly controls, is controlled by, or is under common control with Licensee, where “control” means ownership of more than fifty percent (50%) of the voting interests of an entity or the power to direct its management and policies.

1.2 “Business Application” means a software application developed, owned or distributed by Licensee that adds substantial and primary functionality to the Software and is not a mere substitute for, or standalone redistribution of, the Software.

1.3 “Documentation” means the user manuals, technical documentation and installation guides provided by IBSurgeon for the Software.

1.4 “Edition” means a specific functional variant of the Software (Standard, Professional or Enterprise) identified in the Order.

1.5 “End Customer” means a third party that has lawfully obtained a Business Application from Licensee with which the Software is bundled or delivered under an Unlimited Subscription or under a Per-Server Subscription with distribution rights (Section 3.5(f)), or that lawfully accesses a Business Application provided as a hosted, cloud or SaaS offering under Section 3.4(a)(iii).

1.6 “Installed Instance” means a copy of the Software installed and activated on a specific server or computer in accordance with this Agreement.

1.7 “License Key” means the file, code or activation data issued by IBSurgeon that enables use of the Software.

1.8 “Order” means the order confirmation, invoice or license certificate issued by IBSurgeon or an authorized reseller that identifies the Edition, license model, quantities, Subscription Period (if any) and fees.

1.9 “Perpetual License” means the license model described in Section 3.1.

1.10 “Subscription Period” means the period of one (1) year from the activation date stated in the Order, or such other period as stated in the Order; for subscriptions included in a Wrapper Service, the term of that Wrapper Service; and in each case any subsequent renewal period for which the applicable fee has been paid.

1.11 “Unlimited Subscription” means the license model described in Section 3.4.

1.12 “Update” means a release of the Software that corrects errors or provides minor enhancements. “Upgrade” means a release that adds substantial new functionality or constitutes a new major version.

1.13 “Use” means to install, load, execute, access, display and operate the Software in accordance with the Documentation.

1.14 “Open Source Components” means the third-party software components included in or distributed with the Software that are licensed under open source licenses, including the Firebird database engine licensed under the InterBase Public License (IPL) and the Initial Developer’s Public License (IDPL), as identified in the notices file accompanying the Software.

1.15 “Per-Server Subscription” means the license model described in Section 3.5.

1.16 “Server” means a single physical or virtual machine (including a virtual machine instance, cloud instance or container host) on which the server component of the Software is installed or executed. Each such machine, including passive, standby, replica and failover machines on which the server component is installed, counts as one Server unless the Order states otherwise.

1.17 “Wrapper Service” means a support, maintenance, administration or other service offering of IBSurgeon or an authorized reseller, identified in the Order, that bundles one or more licenses or subscriptions for the Software together with the service.

2. General License Grant

2.1 Subject to Licensee’s payment of the applicable fees and continuous compliance with this Agreement, IBSurgeon grants Licensee a non-exclusive, non-transferable (except as permitted in Section 14.2) license to Use the Software in object code form only, in the scope defined by the license model and quantities specified in the Order and detailed in Section 3.

2.2 Licensee may make a reasonable number of copies of the Software solely for backup, archival and disaster recovery purposes, provided that all copyright and proprietary notices are reproduced on all copies and that backup copies are not used in production concurrently with the licensed Installed Instances.

2.3 The Software is licensed, not sold. All rights not expressly granted are reserved by IBSurgeon.

2.4 License management. The Software may include License Keys, activation and other license management mechanisms. Licensee consents to the operation of such mechanisms and shall not circumvent or tamper with them. Activation records generated by such mechanisms or maintained by IBSurgeon serve as the primary reference for determining which Installed Instances were activated during a Subscription Period and the number of Servers in use, for the purposes of Sections 3.4(e) and 3.5(b), alongside the records kept by Licensee under Sections 3.4(g) and 3.5(b).

2.5 License management data. License management mechanisms collect and transmit to IBSurgeon only technical data required for activation and license compliance, namely: server hardware identifiers, IP address and host name of the Server, the Software version and Edition, and License Key data. License management mechanisms do not collect, access or transmit the contents of Licensee’s databases or other business data. Such technical data is processed in accordance with IBSurgeon’s privacy policy available at https://ib-aid.com/en/privacy-policy/.

3. License Models

3.1 Perpetual License (Standard, Professional, Enterprise)

  • (a) Scope. For each Perpetual License purchased, Licensee may install and Use the server component of the Software on one (1) Server, and install and Use the administrator component on up to two (2) individual computers, for Licensee’s internal business purposes. Server counting under Section 1.16 applies, including to passive, standby and replica machines, unless the Order states otherwise.

  • (b) Duration. The Perpetual License is granted for an unlimited duration, subject to termination under Section 12.

  • (c) Updates and Upgrades. Perpetual Licenses include Updates and Upgrades only during an active maintenance period or support service agreement, if purchased. Versions lawfully installed remain licensed after the maintenance or service period ends.

  • (d) Re-hosting. Licensee may transfer an Installed Instance to a replacement server or computer, provided the Software is removed from the original machine and the total number of concurrent Installed Instances does not exceed the licensed quantity.

3.2 Evaluation License

  • (a) If the Software is provided for evaluation, IBSurgeon grants Licensee a limited, non-exclusive, non-transferable, royalty-free license to Use the Software solely for internal evaluation of its suitability, for the evaluation period stated by IBSurgeon or, if none is stated, thirty (30) days from installation (the “Evaluation Period”).

  • (b) The Software under an Evaluation License may not be used for production, commercial, business, governmental or institutional purposes.

  • (c) At the end of the Evaluation Period, Licensee must either purchase a commercial license or permanently remove the Software from all systems and destroy all copies. The Software may include technical measures that disable it at the end of the Evaluation Period.

  • (d) EVALUATION SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OR SUPPORT OF ANY KIND.

3.3 Educational License

  • (a) If the Order identifies an Educational License, Licensee may Use the Software solely for providing or receiving instruction in guided training courses in which Licensee is a direct participant as student or instructor (“Courses”), and solely for educational and training purposes.

  • (b) Works created in Courses may be reproduced, distributed and used only among Course participants and only for educational or training purposes. No commercial, business, governmental or institutional use is permitted, except to the extent Licensee is an instructor teaching a Course.

3.4 Unlimited Subscription

  • (a) Scope of grant. Subject to payment of the applicable subscription fee, IBSurgeon grants Licensee, for the duration of the Subscription Period, a non-exclusive, non-transferable license to:

    • (i) Internal deployment. Install and Use an unlimited number of Installed Instances of the HQbird ENTERPRISE Edition on servers and computers owned, leased or operated by Licensee and its Associated Companies, for the internal business purposes of Licensee and its Associated Companies; and

    • (ii) Distribution to End Customers. Notwithstanding Sections 4.1(a) and 4.1(d), reproduce and distribute the HQbird ENTERPRISE Edition to End Customers solely as bundled with, embedded in, or delivered as a component of Licensee’s Business Applications, and grant each End Customer a limited, non-exclusive, non-transferable sublicense to Use the Software solely in connection with the operation of such Business Applications; and

    • (iii) SaaS delivery. Notwithstanding Section 4.1(g), Use the HQbird ENTERPRISE Edition on servers operated by or for Licensee or its Associated Companies in order to make Licensee’s Business Applications available to End Customers as hosted, cloud or software-as-a-service offerings, provided that End Customers are given no direct access to the Software independent of the Business Application. Instances used for such SaaS delivery are Installed Instances for the purposes of this Agreement, and Section 3.4(c)(v)-(vii) applies to SaaS End Customers mutatis mutandis.

  • (b) Single group. The rights under Section 3.4(a)(i) apply to a single company or a single group of Associated Companies identified in the Order. If an entity ceases to be an Associated Company, its rights under this Section terminate on that date, except that its existing Installed Instances are treated under Section 3.4(e).

  • (c) End Customer conditions. Distribution under Section 3.4(a)(ii) is subject to the following:

    • (i) The Software may be distributed only under a written agreement with each End Customer containing terms at least as protective of IBSurgeon as this Agreement, including prohibitions on reverse engineering, standalone use, and further distribution; agreements incorporating the substance of IBSurgeon’s minimum end customer terms, available at https://ib-aid.com/en/hqbird-end-customer-terms/, satisfy this requirement;

    • (ii) The Software may not be distributed on a standalone basis or in a manner allowing use independent of the Business Application;

    • (iii) End Customers receive no right to distribute, sublicense, resell, lease, rent or loan the Software;

    • (iv) Licensee shall reproduce IBSurgeon’s copyright and proprietary notices on all distributed copies;

    • (v) Licensee is responsible for its End Customers’ compliance and shall take prompt, reasonable steps to remedy any known violation; failure to do so is a breach of this Agreement by Licensee;

    • (vi) IBSurgeon has no support obligation toward End Customers; first-line support is provided by Licensee unless agreed otherwise in writing; and

    • (vii) Licensee shall not make representations, warranties or commitments on behalf of IBSurgeon.

  • (d) Updates and Upgrades. During an active Subscription Period, Licensee is entitled to all Updates and Upgrades of the HQbird ENTERPRISE Edition. Technical support is not included in the Unlimited Subscription; it is available under a separate support service agreement, which may bundle licenses and support (a Wrapper Service).

  • (e) Effect of expiration. Upon expiration or non-renewal of the Subscription Period:

    • (i) Installed Instances activated by Licensee, its Associated Companies or its End Customers during the Subscription Period continue to operate, and the license to Use those Installed Instances, in the versions installed during the Subscription Period, continues in effect without further payment, subject to this Agreement;

    • (ii) No new installations and no re-installations (including installation on replacement hardware, migration to another server or computer, or restoration after removal) may be made without an active Subscription Period;

    • (iii) Licensee’s right to distribute the Software to new End Customers is suspended until a new Subscription Period is activated; and

    • (iv) Entitlement to Updates and Upgrades ends.

  • (f) Renewal. The Subscription Period renews for successive one (1) year periods upon payment of the then-current renewal fee. Renewal restores the rights in Section 3.4(a) in full for the renewed period. IBSurgeon will provide notice of any renewal fee change at least sixty (60) days before renewal.

  • (g) Records and reporting. Licensee shall keep reasonably accurate records of installations and distributions under this Section 3.4 and, upon IBSurgeon’s written request not more than once per calendar year, provide a summary report of the number of Installed Instances and the Associated Companies covered.

  • (h) Precedence. In case of conflict between this Section 3.4 and any other provision of this Agreement with respect to an Unlimited Subscription, this Section 3.4 prevails. Nothing in this Section grants rights in source code or modifies Sections 4.1(b), 5, 9 or 10.

3.5 Per-SERVER Subscription

  • (a) Grant. For each Per-Server Subscription purchased, and subject to payment of the applicable subscription fee, IBSurgeon grants Licensee, for the duration of the Subscription Period, a non-exclusive, non-transferable license to install and Use the server component of the Software, in the Edition stated in the Order, on one (1) Server, and to install and Use the administrator component on up to two (2) individual computers, for the internal business purposes of Licensee.

  • (b) Server counting. The number of Servers on which the server component of the Software is installed or executed at any time must not exceed the number of active Per-Server Subscriptions. Licensee may move a subscription from one Server to a replacement Server, provided the Software is removed from the original Server. If the number of Servers in use exceeds the number of active subscriptions, Licensee shall promptly notify IBSurgeon and purchase the additional subscriptions required.

  • (c) Wrapper Services. A Per-Server Subscription may be granted as part of a Wrapper Service. In that case: (i) the Order for the Wrapper Service identifies the number of Servers covered; (ii) the Subscription Period runs concurrently with the term of the Wrapper Service; (iii) the right to Use the Software is included in the Wrapper Service fee and is conditional on the Wrapper Service remaining in effect and paid; and (iv) expiration or termination of the Wrapper Service has the same effect as expiration of the Subscription Period under Section 3.5(e).

  • (d) Benefits. During an active Subscription Period, each Per-Server Subscription includes all Updates and Upgrades of the licensed Edition. Technical support is not included in the Per-Server Subscription itself; it is provided only where the subscription is part of a Wrapper Service, in accordance with the terms of that Wrapper Service, or under a separate support service agreement.

  • (e) Effect of expiration. The Per-Server Subscription is a term license. Upon expiration or non-renewal of the Subscription Period, Licensee’s right to Use the Software under the Per-Server Subscription ends, and Licensee shall cease Use of, and remove, the Software from the affected Servers, subject to a grace period of thirty (30) days to complete renewal or removal. For clarity, the continued-operation rights in Section 3.4(e)(i) apply only to the Unlimited Subscription and not to Per-Server Subscriptions.

  • (f) Distribution option. By default, the Per-Server Subscription is for the internal use of Licensee only. Where the Order identifies Licensee as authorized to distribute the Software (for example, as a vendor of business applications), Licensee may distribute the Software to End Customers solely as bundled with, embedded in, or delivered as a component of Licensee’s Business Applications, and grant each End Customer a limited, non-exclusive, non-transferable sublicense to Use the Software solely in connection with the operation of such Business Applications, subject to the following:

    • (i) the conditions of Section 3.4(c) apply mutatis mutandis to such distribution;

    • (ii) every Server on which the server component of the Software is installed or executed — whether operated by Licensee or by an End Customer — counts against the number of active Per-Server Subscriptions under Section 3.5(b);

    • (iii) upon expiration or non-renewal of the Subscription Period, Section 3.5(e) applies to all such Servers, including Servers operated by End Customers, and Licensee is responsible for informing its End Customers accordingly; and

    • (iv) SaaS delivery of Business Applications to End Customers remains governed by Section 3.4(a)(iii) (Unlimited Subscription) and is not included in the Per-Server Subscription unless expressly stated in the Order.

  • (g) Renewal. The Subscription Period renews for successive periods equal to the initial period upon payment of the then-current renewal fee or, for Wrapper Services, upon renewal of the Wrapper Service.

3.6 Upgraded Licenses

A license purchased as an upgrade of a previous license constitutes a single license together with the upgraded copy. Licensee may retain the prior version for transition purposes but may not transfer, sell or separately use the original copy, and the total number of concurrent Installed Instances may not exceed the licensed quantity.

3.7 Pre-RELEASE Software

Software identified as alpha, beta, preview or otherwise as pre-release is provided “AS IS”, without warranty, support or indemnification of any kind, is not intended for production use, and may be modified or discontinued by IBSurgeon at any time without notice.

4. License Restrictions

4.1 The restrictions in this Section apply to the proprietary components of the Software developed by IBSurgeon; the use of Open Source Components is additionally governed by their own licenses as set out in Section 5.3, and nothing in this Agreement restricts rights expressly granted to Licensee by those licenses. Except as expressly permitted by this Agreement (including Sections 3.4 and 3.5(f) for holders of the corresponding subscriptions), Licensee shall not, and shall not permit any third party to:

  • (a) copy, distribute, publish, transmit or make the Software available to any third party;

  • (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, underlying ideas, algorithms or structure of the Software, except to the extent such restriction is prohibited by applicable law and then only after prior written notice to IBSurgeon;

  • (c) modify, adapt, translate or create derivative works of the Software;

  • (d) rent, lease, lend, sell, resell, sublicense, assign or otherwise transfer the Software or any rights under this Agreement;

  • (e) remove, alter or obscure any copyright, trademark or other proprietary notices;

  • (f) circumvent, disable or tamper with any license control, activation or technical protection mechanism of the Software, or use the Software with a License Key not issued to Licensee;

  • (g) use the Software to provide service bureau, hosting, outsourcing or managed services to third parties, except as permitted under Section 3.4(a)(iii) or as expressly permitted in the Order;

  • (h) use the Software to develop a competing product, or disclose the results of any benchmark tests of the Software to third parties without IBSurgeon’s prior written consent; or

    • (i) use the Software in violation of applicable law.

5. Ownership and Intellectual Property

5.1 The Software is protected by copyright and other intellectual property laws and international treaties. IBSurgeon and its licensors retain all right, title and interest in and to the Software, including all copies, modifications and derivative works, and all intellectual property rights therein. Licensee acquires no ownership interest in the Software.

5.2 Licensee shall promptly notify IBSurgeon of any unauthorized use or infringement of the Software of which it becomes aware.

5.3 Open Source Components. The Software includes or is distributed with Open Source Components, including the Firebird database engine. Open Source Components are licensed to Licensee under the terms of their respective open source licenses, and not under this Agreement; nothing in this Agreement limits, and this Agreement does not grant, Licensee’s rights under those licenses. IBSurgeon claims no ownership of the Open Source Components; Section 5.1 applies only to the proprietary components of the Software developed by IBSurgeon. Licensee shall keep intact all copyright and license notices of the Open Source Components in all copies of the Software, including copies distributed to End Customers, and shall pass through the applicable open source license terms to End Customers. The applicable open source licenses and attributions are listed in the notices file accompanying the Software.

5.4 Trademarks. “HQbird” and “IBSurgeon” are trademarks or trade names of IBSurgeon. Licensee may use them solely to accurately identify the Software in connection with its permitted use and, where applicable, permitted distribution of the Software under Sections 3.4 and 3.5(f), in accordance with IBSurgeon’s reasonable trademark guidelines, and without suggesting sponsorship or endorsement by IBSurgeon of Licensee’s Business Applications. “Firebird” is a trademark of the Firebird Foundation; Licensee shall not use it in a manner suggesting endorsement by, or affiliation with, the Firebird Foundation. No other trademark rights are granted, and all goodwill arising from permitted use inures to the respective trademark owner.

6. Support, Updates and Changes

6.1 Licenses and subscriptions for the Software do not include technical support. Technical support is provided only under a separate support service agreement or Wrapper Service, which bundles licenses or subscriptions for the Software together with support, in accordance with IBSurgeon’s then-current support policy, available at https://ib-aid.com/en/support-policy/. IBSurgeon will not materially degrade the level of support applicable under a support service agreement or Wrapper Service during its paid term.

6.2 Updates and Upgrades supplied to Licensee are part of the Software and are governed by this Agreement unless accompanied by separate terms.

6.3 IBSurgeon reserves the right not to release, or to discontinue, any product, and to alter prices, features, specifications and licensing terms of future releases. Such changes do not affect licenses already granted and paid for.

7. Fees and Taxes

7.1 Licensee shall pay the fees stated in the Order. Except as expressly stated in this Agreement, fees are non-refundable. The thirty (30) day return right stated in the preamble applies only to Software that has not been installed or activated.

7.2 Fees are exclusive of taxes. Licensee is responsible for all applicable taxes, duties and levies, other than taxes on IBSurgeon’s income.

7.3 Verification. In lieu of audit rights, IBSurgeon may rely on the records and reports provided by Licensee under Sections 3.4(g) and 3.5(b) and on activation records under Section 2.4, and Licensee shall provide such records and reports in good faith and with reasonable accuracy.

7.4 Late payment. IBSurgeon may charge interest on overdue amounts at the rate of one percent (1%) per month (or the highest rate permitted by applicable law, if lower). If Licensee is materially in arrears and fails to pay within thirty (30) days after written notice, IBSurgeon may suspend delivery of Updates, Upgrades and support until payment is received; suspension does not extend the Subscription Period or relieve Licensee of payment obligations.

8. Confidentiality

8.1 “Confidential Information” means non-public information disclosed by either party that is marked confidential or that a reasonable person would understand to be confidential, including the Software in any non-public form, License Keys, pricing, and the terms of the Order.

8.2 Each party shall protect the other party’s Confidential Information with at least the same care it uses for its own confidential information (and no less than reasonable care), use it only to perform this Agreement, and not disclose it to third parties except to employees, advisors and contractors bound by confidentiality obligations at least as protective.

8.3 These obligations do not apply to information that is or becomes public without breach, was lawfully known before disclosure, is independently developed, or is lawfully received from a third party. Disclosure required by law or court order is permitted with, where lawful, prior notice to the disclosing party.

8.4 Confidentiality obligations survive termination of this Agreement for five (5) years; obligations regarding the Software and trade secrets survive as long as the information remains a trade secret.

9. Limited Warranty and Disclaimer

9.1 IBSurgeon warrants that, for ninety (90) days from delivery (meaning the date the Software download or the License Key is first made available to Licensee, whichever is earlier), the Software, when properly installed and used in accordance with the Documentation, will perform substantially as described in the Documentation.

9.2 Licensee’s exclusive remedy and IBSurgeon’s entire liability for breach of this warranty is, at IBSurgeon’s option: (a) repair or replacement of the non-conforming Software; or (b) if repair or replacement is not commercially reasonable, termination of the affected license and refund of the fees paid for it.

9.3 The warranty does not apply to Evaluation Software, to defects caused by misuse, modification, or use contrary to the Documentation, or to use with hardware or software not specified in the Documentation.

9.4 EXCEPT AS EXPRESSLY STATED IN SECTION 9.1, THE SOFTWARE IS PROVIDED “AS IS” AND IBSURGEON DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. IBSURGEON DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION. SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY IN FULL.

10. Limitation of Liability

10.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, DATA, GOODWILL OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IBSURGEON’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY LICENSEE FOR THE SOFTWARE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

10.3 The limitations in this Section 10 do not apply to: (a) either party’s breach of Section 8 (Confidentiality); (b) Licensee’s willful or intentional infringement of IBSurgeon’s intellectual property rights, or use of the Software willfully and materially exceeding the scope of the license granted;

  • (c) IBSurgeon’s indemnification obligations under Section 11; or (d) liability that cannot be limited under applicable law, including liability for death, personal injury, fraud or willful misconduct.

10.4 IT IS LICENSEE’S RESPONSIBILITY TO MAINTAIN ADEQUATE BACKUP OF ITS DATABASES AND DATA. THE SOFTWARE IS A DATABASE ADMINISTRATION AND RECOVERY TOOL, AND ITS USE DOES NOT REPLACE PROPER BACKUP PROCEDURES.

11. Intellectual Property Indemnification

11.1 IBSurgeon shall defend Licensee against any third-party claim that the proprietary components of the Software developed by IBSurgeon, as delivered by IBSurgeon and used in accordance with this Agreement, infringe a copyright, patent, trademark or trade secret, and shall indemnify Licensee against damages and costs (including reasonable attorneys’ fees) finally awarded or agreed in settlement, provided Licensee:

  • (a) promptly notifies IBSurgeon in writing of the claim;

  • (b) grants IBSurgeon sole control of the defense and settlement; and (c) provides reasonable cooperation at IBSurgeon’s expense.

11.2 If the Software becomes, or in IBSurgeon’s opinion is likely to become, the subject of an infringement claim, IBSurgeon may, at its option and expense: (a) procure the right for Licensee to continue using the Software; (b) modify or replace the Software so it becomes non-infringing without materially reducing its functionality; or (c) terminate the affected license and refund the fees paid for it, less straight-line depreciation over a three (3) year period for Perpetual Licenses, or the pro-rata unused portion of the current Subscription Period for subscription licenses.

11.3 IBSurgeon has no obligation for claims arising from:

  • (a) combination of the Software with products, software or data not supplied by IBSurgeon, if the claim would not have arisen without the combination; (b) modification of the Software by anyone other than IBSurgeon; (c) use of a superseded version if the claim would have been avoided by using a current version made available to Licensee; or (d) use outside the scope of this Agreement; or (e) the Open Source Components, which are provided under their respective open source licenses without indemnification by IBSurgeon.

11.4 THIS SECTION 11 STATES IBSURGEON’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

12. Term and Termination

12.1 Term. This Agreement takes effect on the date Licensee first accepts it or first installs the Software, whichever is earlier, and continues until terminated in accordance with this Section. The duration of individual licenses is defined by the applicable license model in Section 3.

12.2 Termination by Licensee. Licensee may terminate this Agreement at any time by giving IBSurgeon five (5) days’ written notice and ceasing all use of the Software. Termination for convenience does not entitle Licensee to any refund.

12.3 Termination for cause. Either party may terminate this Agreement by written notice if the other party materially breaches this Agreement and fails to cure the breach within thirty (30) days after receiving written notice specifying the breach. IBSurgeon may terminate immediately upon written notice in case of Licensee’s breach of Sections 3, 4, 5 or 8 that is incapable of cure, or Licensee’s insolvency, bankruptcy or cessation of business.

12.4 Effect of termination. Upon termination of this Agreement:

  • (a) except as provided in Section 12.4(e), all licenses granted to Licensee immediately terminate and Licensee shall cease all use of the Software;

  • (b) Licensee shall, within ten (10) days, destroy or return all copies of the Software and License Keys in its possession or control that are not covered by surviving licenses under Section 12.4(e), and certify in writing that it has done so;

  • (c) each party shall return or destroy the other party’s Confidential Information and certify in writing that it has done so; and

  • (d) sublicenses properly granted to End Customers under Section 3.4 or Section 3.5(f) before the effective date of termination survive, provided the End Customers remain in compliance with their sublicense terms; Licensee’s right to grant further sublicenses ceases immediately.

  • (e) Surviving licenses. Unless this Agreement is terminated by IBSurgeon for Licensee’s breach, the following survive termination and continue subject to the terms of this Agreement (which continue to apply to them): (i) fully paid Perpetual Licenses under Section 3.1; and (ii) the right to continued operation of Installed Instances under Section 3.4(e)(i). If this Agreement is terminated by IBSurgeon for Licensee’s breach, all licenses terminate, including those described in (i) and (ii).

12.5 Survival. Sections 1, 4, 5, 8, 9.4, 10, 11.4, 12.4, 12.5, 13 and 14 survive termination of this Agreement, together with all rights and obligations accrued before termination, including payment obligations.

12.6 Injunctive relief. Licensee acknowledges that breach of Sections 3, 4, 5 or 8 may cause IBSurgeon irreparable harm for which monetary damages are inadequate, and IBSurgeon is entitled to seek injunctive relief in addition to any other remedies.

13. Export and Compliance

Licensee shall comply with all applicable export control and sanctions laws and regulations, and shall not export, re-export or transfer the Software to any prohibited country, entity or person, or for any prohibited end use.

14. General Provisions

14.1 Governing law and dispute resolution. This Agreement is governed by the laws of the Republic of Kazakhstan, excluding its conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods. Any dispute, controversy or claim arising out of or relating to this Agreement, or its breach, termination or invalidity, shall be finally resolved by arbitration administered by the International Arbitration Centre (IAC) of the Astana International Financial Centre (AIFC) in accordance with its Arbitration and Mediation Rules. The seat of arbitration is Astana, Republic of Kazakhstan; the language of the arbitration is English; and the tribunal consists of one (1) arbitrator unless the parties agree otherwise. The award is final and binding, and judgment on the award may be entered in any court of competent jurisdiction. Nothing in this Section prevents either party from seeking interim or injunctive relief from a court of competent jurisdiction.

14.2 Assignment. Licensee may not assign or transfer this Agreement or any license without IBSurgeon’s prior written consent, except to a successor in interest in connection with a merger, acquisition or sale of substantially all assets, provided the successor is not a competitor of IBSurgeon and agrees in writing to be bound by this Agreement. Any other attempted assignment is void.

14.3 Entire agreement. This Agreement, together with the Order, constitutes the entire agreement between the parties regarding the Software and supersedes all prior or contemporaneous agreements, proposals and communications on the subject. In case of conflict, the Order prevails over this Agreement only where the Order expressly amends it. Terms in Licensee’s purchase orders or similar documents are of no effect.

14.4 Amendments and waiver. Amendments must be in writing and signed by both parties. Failure to enforce a provision is not a waiver of it.

14.5 Severability. If any provision of this Agreement is held invalid or unenforceable, it will be enforced to the maximum extent permissible and the remaining provisions will remain in full force.

14.6 Force majeure. Neither party is liable for failure or delay in performance (except payment obligations) caused by events beyond its reasonable control.

14.7 Notices. Notices under this Agreement must be in writing and delivered to the addresses stated in the Order (or such other address as a party designates in writing), by courier, registered mail or email with confirmation of receipt.

14.8 Independent contractors. The parties are independent contractors. This Agreement does not create a partnership, agency or joint venture.

14.9 Headings; language. Headings are for convenience only. This Agreement is executed in the English language, which prevails over any translation.